Accusation of Theft
Accusation of Theft – What Punishment Might Be Imposed?
Have you received a police summons due to suspicion of theft under § 242 of the German Criminal Code (StGB), a particularly serious case of theft under § 243 StGB, or a qualified form of theft under § 244 StGB, and are unsure of how to proceed?
First, you should try to remain calm. As a suspect in a criminal investigation for theft, you are not obligated to make any statements to the police.
Nonetheless, it is advisable to act swiftly and consult a lawyer who specializes in property offenses.
When is the Offense under § 242 StGB Fulfilled?
Theft under § 242 StGB is one of the most common criminal offenses. A large number of investigations are initiated due to allegations of theft, and many individuals receive a charge for theft.
Objectively, the offense of theft under § 242 StGB is fulfilled when someone takes a movable item that belongs to another person.
An “item” refers to any tangible object that can be the subject of legal rights, as per § 90 of the German Civil Code (BGB). The item is considered movable if it can be removed from its original location. The “otherness” of the item is primarily based on the fact that it is not your property. An item is considered taken when the original holder’s possession is broken, and new possession—though not necessarily by the perpetrator—is established.
Subjectively, for theft to be punishable, intent and the special element of appropriation intent must be present.
This must be combined with the objective unlawfulness of the intended appropriation and corresponding intent.
“Special Case” – Particularly Serious Case of Theft According to § 243 StGB
A special case of theft is represented by the particularly serious case of theft under § 243 StGB. The typical examples require that one (or more) of the characteristics listed in § 243 Abs. 1 S. 2 Nos. 1-7 StGB are fulfilled both objectively and subjectively.
In practice, the most common instances include No. 1 (breaking or entering business premises), No. 2 (theft of particularly secured items), and No. 3 (professional theft) of § 243 StGB.
Notably, the burglary or breaking-and-entering theft according to § 243 Abs. 1 S. 2 No. 1 StGB requires the objective act of breaking or entering for the purpose of theft into a confined space.
Also frequently encountered is the theft of particularly secured items according to § 243 Abs. 1 S. 2 No. 2 StGB. This typical example is objectively fulfilled, for instance, when an alarm system, a bicycle lock, or similar protective devices secure an item against theft.
Professionally, within the meaning of § 243 Abs. 1 S. 2 No. 3 StGB, theft occurs when the perpetrator aims to establish a source of income of significant and lasting value through the repeated commission of thefts. This typical example can be fulfilled even with the first offense.
Theft in a particularly serious case cannot occur if the act concerns an item of little value. According to prevailing case law, an item of little value is defined as one whose worth does not exceed the threshold of 25 euros.
“Special Cases” – Theft Qualifications According to §§ 244, 244a StGB
The theft qualifications according to §§ 244, 244a StGB are significantly more punishable than simple theft.
§ 244 StGB regulates, in addition to theft with weapons and gang theft, the burglary of residential premises.
In the case of theft with weapons, it should be noted that this is also fulfilled if you carry a dangerous tool, which requires a precise examination of the individual case.
Since burglary of residential premises, if it involves a permanently used private dwelling, is structured as a crime with a minimum prison sentence of not less than one year, you should consult a specialized lawyer urgently and as soon as possible, especially in this case.
Gang theft under § 244 StGB initially requires the action of a gang. This is the case when at least three persons have come together to promote or commit several, individually uncertain robbery or theft offenses. The theft must then be carried out with the participation of another gang member.
Often, gang theft occurs under the conditions of § 244 StGB or § 243 StGB, resulting in a case of serious gang theft under § 244a StGB. This qualification also carries the character of a crime, with a prison sentence of not less than one year, and therefore also requires urgent consultation with a specialized lawyer.
What Punishment Can I Expect if Convicted?
For theft under § 242 StGB, the penalty ranges from a fine to imprisonment for up to five years. The attempt of simple theft is also punishable.
In contrast, in the case of particularly serious theft under § 243 StGB, a prison sentence of three months to ten years can be imposed.
The potential prison sentence for theft with weapons, gang theft, and simple burglary under § 244 StGB increases to between six months and ten years. A less serious case may allow for a punishment of imprisonment from three months to five years. To explore this possibility, you should consult a qualified attorney.
The serious burglary under § 244 StGB and serious gang theft under § 244a StGB, on the other hand, provide for a prison sentence of one year to ten years as a felony. Even in serious gang theft cases, a less serious case can lower the penalty; the imprisonment then ranges from six months to five years.
In cases of theft according to §§ 244, 244a StGB, prison sentences are regularly imposed that cannot be suspended. In these cases, you have the right to be represented by an attorney (public defender). If you face such an accusation, take advantage of the opportunity to choose your own defender.
For all the aforementioned theft offenses, the court has the option to impose supervision.
The severity of the sentence depends on the individual circumstances of the case. Assessment factors include not only the specific circumstances of the offense but also any prior convictions of the offender.
Additionally, there is a risk of a criminal record. Generally, fines are listed only if they exceed 90 daily rates or if prison sentences are more than three months, provided there are no other penalties listed. Preventing a record is also the responsibility of the defense attorney, as many employers require the presentation of a criminal record.
Do I Need a Lawyer?
To keep the sentence as low as possible, or ideally to avoid a conviction, effective assistance is essential if you are accused in a criminal proceeding for theft.
Theft is often subject to a high penalty. Therefore, you should definitely contact a specialized attorney promptly.
At the latest, when you receive a summons as an accused person, contacting a specialized lawyer is essential.
Since serious burglary under § 244 StGB and serious gang theft under § 244a StGB are felonies, you have the right to a public defender in such cases. If you have the right to a public defender, you should urgently take action and choose a criminal defense attorney. This will ensure that your representation in court is optimally guaranteed by an experienced defense lawyer.
The law firm Mügge, Dr. Pitschel & Partner provides advice and defense with years of experience in numerous cases in the field of theft offenses. If you have further questions or are accused in a criminal proceeding, please feel free to contact us.