The statement that cryptocurrencies are "gone" after fraud or theft and therefore irretrievably lost is inaccurate as a blanket assertion. While it may be factually correct in individual cases, it is not absolute from a legal or technical perspective. This opens up possibilities for victims to recover at least some of their lost assets. For companies and those responsible for their finances, this is particularly relevant with regard to damage limitation, asset protection, and internal decision-making processes.
The theft of cryptocurrencies or the misappropriation of crypto assets through fraud raises complex legal questions. At the heart of these issues are ownership rights and the legal classification of cryptocurrencies when digital assets are commingled. These questions affect not only legal representation but also the economic assessment of damages and risks. Especially when large sums of money in euros or company-owned crypto holdings are involved, these questions become increasingly important for management and compliance.
Legal classification of cryptocurrencies
According to prevailing opinion, cryptocurrencies are not considered property within the meaning of Section 90 of the German Civil Code (BGB), as they are not physical objects. Nevertheless, theft in the criminal sense can occur, for example, if perpetrators gain unauthorized access to wallets or withdraw actual control over the coins.
In Germany – and often internationally as well – cryptocurrencies are legally classified as other assets. They are considered, in particular, to be:
- other assets within the meaning of § 90 BGB analogously and § 11 para. 1 no. 10 StGB
- Seizable in accordance with Sections 94 et seq. of the Code of Criminal Procedure
Crucially, ownership of cryptocurrencies is not lost through fraud or theft. The original owner remains the legal owner of the cryptocurrency, even if perpetrators initiate further transactions or forward the coins.
Cryptocurrency ownership, fraud, and commingling
German law contains clear regulations regarding the commingling of cash or tangible property, particularly in §§ 947–948 of the German Civil Code (BGB). Ownership is allocated proportionally or jointly there.
No such explicit legal regulation exists for cryptocurrencies. In practice, therefore, analogous solutions are applied in conjunction with criminal procedure law. Current judicial practice focuses primarily on the technical characteristics of blockchain technology.
The traceability of transactions replaces physical separation. Cryptocurrencies are not automatically considered indistinguishable simply because they appear technically similar. As long as proof of origin is possible, the original owner's claim remains valid.
Mixing through pooled wallets, mixing services and transactions
The legal status of ownership of cryptocurrencies is not definitively settled, as traditional property law is not directly applicable due to the lack of physical form. Instead, the focus is regularly placed on the right to the asset's value.
When affected cryptocurrencies are mixed with other coins – for example, through the use of mixing services, pooled wallets, or complex transaction chains – the question arises of how to individually assign specific tokens. This assignment is technically possible, although it involves considerable effort.
Seizure of cryptocurrencies by police and judiciary
If a wallet or exchange account is seized as part of an investigation, several scenarios must be distinguished.
Case A: Clearly traceable coins
If the cryptocurrencies in question can be clearly identified, they will be returned in kind in accordance with Section 111n of the German Code of Criminal Procedure. The victim will receive exactly these coins or a corresponding equivalent.
Case B: Partial mixing with computational allocation
If the coins are mixed but mathematically identifiable, a proportional return is regularly carried out. The calculation is based on the deposit time, the transaction paths, and blockchain forensic analysis. This currently represents the most common scenario.
Case C: Complete mixing without possibility of allocation
If attribution is no longer possible, there is generally no right to specific restitution. A claim for compensation or restitution under Section 111i of the German Code of Criminal Procedure (StPO), directed against the perpetrator, may be considered. There is no automatic entitlement to full compensation in euros.
Analogous solutions and dynamic legal situation
In the case of commingling, the principle of co-ownership or proportional allocation can be applied analogously, comparable to Section 948 of the German Civil Code (BGB). The decisive factor is whether the original owners can technically trace and legally assert their claims.
The legal situation is dynamic and depends significantly on the technical possibilities of blockchain analysis as well as on the further development of case law and legislation in the field of digital assets.
Financial forensics as an interface between law and economics
Anyone affected by theft or fraud related to cryptocurrencies should commission a forensic report to effectively pursue their claims. The findings provide a sound basis for legal assessment and further action. At the same time, they serve as a basis for decisions regarding business management, risk management, and strategic damage limitation.
In practice, law enforcement agencies often see no need for private crypto forensics reports. At the same time, police and prosecutors frequently lack the technical resources and the necessary expertise to conclusively assess complex transactions, perpetrator structures, and their legal consequences.
The combination of crypto forensics and legal expertise is therefore particularly valuable. While the crypto forensic expert analyzes wallet transactions, traces money flows on the blockchain, and identifies perpetrator structures, the lawyer ensures the legally sound preservation of the findings, their legal classification, and the enforcement of legal measures. In this way, both legal shortcomings in investigations and economic uncertainties at the corporate level can be effectively reduced.
Financial Forensics GmbH supports lawyers and companies with specialized crypto forensics in the proper clarification, legal classification and economic evaluation of complex blockchain issues.
FAQs – Frequently Asked Questions about Cryptocurrency Fraud
No. The blanket assumption that cryptocurrencies are irretrievably lost after fraud is legally incorrect. Whether recovery is possible depends on the specific case, the transactions, and the technical traceability on the blockchain.
No. Ownership of cryptocurrencies is not lost through fraud or theft. The original owner remains the legal owner, even if perpetrators gain actual control over wallets or coins.
Cryptocurrencies are not considered property within the meaning of Section 90 of the German Civil Code (BGB), but are classified as other assets. They are therefore objects of criminal activity and are generally subject to seizure.
Yes. Blockchain transactions – especially with Bitcoin – are generally publicly viewable and technically traceable. However, tracing them requires specialized forensic expertise.
Commingling cryptocurrencies does not automatically lead to the loss of claims. As long as a mathematical or technical allocation is possible, the original owner's claim remains valid.
Mixing services and centralized wallets make it more difficult to trace cryptocurrencies, but they don't necessarily make it impossible. Even in such cases, blockchain forensic analysis can provide approaches for tracing them back to their origin.
Yes. If cryptocurrencies are clearly traceable, restitution in kind pursuant to Section 111n of the German Code of Criminal Procedure (StPO) is possible. In cases of partial commingling, a proportional allocation is often made.
If it is no longer possible to assign the cryptocurrencies due to complete commingling, there is usually no claim for specific surrender, but only a claim for compensation, usually against the perpetrator.
In practice, police and prosecutors frequently encounter technical limitations in complex crypto cases. Without specialized crypto forensics, transactions and perpetrator structures often remain incompletely understood.
A crypto-forensic report enables the systematic analysis of transactions, money flows, and commingling. For lawyers, it provides a sound basis for litigation; for entrepreneurs, it offers a reliable foundation for decisions regarding asset protection and damage assessment.
