Accused of Theft in Germany: Penalties under Section 242 StGB

Being accused of theft in Germany can have serious criminal, professional and personal consequences. The allegation may arise from a police summons, a written questionnaire, a search, a complaint by an employer or a German penalty order.

The possible outcome cannot be determined solely by the value of the allegedly stolen property. The precise offence, the available evidence, previous convictions and the personal circumstances of the accused must all be considered.

This is particularly important where the authorities allege aggravated theft under Section 243 StGB or armed theft, gang theft or burglary of a dwelling under Section 244 StGB. These provisions carry substantially higher sentencing ranges than simple theft.

If you are accused of theft in Germany, do not make a statement to the police before the investigation file has been reviewed. A statement should only be made as part of a carefully prepared defence strategy.

What constitutes theft under German law?

Theft is governed by Section 242 of the German Criminal Code, known in German as the Strafgesetzbuch or StGB.

A person commits theft if they take another person’s movable property with the intention of unlawfully appropriating it for themselves or a third party.

The prosecution must therefore establish that

• the property was movable,
• the property belonged to another person,
• the accused took the property from another person’s possession,
• the accused acted intentionally and
• the accused intended to appropriate the property unlawfully.

Not every unauthorised handling or removal of property automatically constitutes theft. Difficult questions can arise where ownership is unclear, several people use the same property or the accused believed that they were entitled to take it.

This is common in disputes between former partners, family members, employers and employees or business partners. In such cases, it must be examined whether the property legally belonged to another person and whether an intention of unlawful appropriation can actually be proven.

The official English translation of the relevant provisions can be found in the German Criminal Code.

When is theft complete?

Theft does not necessarily require the accused to leave a building, shop or property with the item. The offence may already be complete once the previous holder’s possession has been broken and new possession has been established.

The distinction between preparation, attempted theft and completed theft can be decisive. It depends on the type and size of the property, where it was located and what actions the accused had already taken.

What is the penalty for theft in Germany?

Penalty for simple theft under Section 242 StGB

Simple theft under Section 242 StGB is punishable by a fine or imprisonment for up to five years. Attempted theft is also punishable.

The statutory maximum does not indicate what sentence will be imposed in a particular case. German courts consider the full circumstances of the offence and the accused.

Relevant factors may include

• the value and type of property,
• the planning and execution of the alleged offence,
• the financial loss caused,
• any relevant or unrelated previous convictions,
• whether one or several offences are alleged,
• the personal and financial circumstances of the accused and
• restitution and other conduct following the alleged offence.

It would therefore be misleading to state that the theft of a specific amount automatically results in a particular number of daily rates or a fixed prison sentence.

What penalty does a first-time offender face?

A person who has no previous convictions generally has a better starting position than a repeat offender. However, being a first-time offender does not automatically result in the proceedings being discontinued.

Depending on the evidence, the value of the property and the circumstances of the offence, possible outcomes may include

• discontinuation due to insufficient evidence,
• discontinuation due to the minor nature of the allegation,
• conditional discontinuation subject to payment or another obligation,
• a penalty order imposing a fine or
• a conviction following a court hearing.

A criminal defence lawyer can examine whether the requirements for discontinuing the proceedings are met and whether an early application to the public prosecutor’s office is appropriate.

Does the value of the stolen property determine the sentence?

German law does not provide fixed sentencing categories for thefts involving 100, 200, 500 or 1,000 euros. A higher value may increase the seriousness of the allegation but a low value does not automatically prevent prosecution or conviction.

Section 248a StGB contains a special procedural rule for theft involving property of minor value. Such an offence is generally prosecuted upon request by the injured party unless the prosecution authorities consider prosecution necessary because of a particular public interest.

The law does not itself specify one universally applicable monetary threshold. The assessment depends on the value of the property and the relevant case law.

Where the allegation concerns goods from a supermarket, drugstore, hardware store or self-checkout area, further information is available in our separate guide to shoplifting in Germany.

What penalty do repeat offenders face?

Previous convictions for theft or other property offences can substantially reduce the likelihood of discontinuation and may result in a higher fine or a prison sentence.

The authorities will consider the type and date of the previous conviction, whether the accused was on probation and whether several new offences are alleged.

Where multiple allegations have been combined in one investigation, each incident and each item of evidence must be reviewed separately. The fact that one allegation may be supported by evidence does not mean that all allegations are proven.

Aggravated theft under Section 243 StGB

Section 243 StGB governs particularly serious cases of theft. The official English translation uses the term “aggravated theft”.

A particularly serious case may be assumed where the accused allegedly

• broke into or entered a building, business premises or another enclosed space,
• used a false key or another tool not intended for proper opening,
• overcame a locked container or another special protective device,
• committed theft on a commercial basis,
• exploited another person’s helplessness or a dangerous situation or
• stole certain specially protected objects.

The sentencing range is imprisonment from three months to ten years.

The existence of one of the statutory examples does not end the legal assessment. It must still be examined whether the alleged facts are proven and whether the overall circumstances justify treating the offence as a particularly serious case.

Aggravated theft by a first-time offender

A first-time offender can also be accused of aggravated theft. The absence of previous convictions does not remove the alleged aggravating circumstances.

However, it may be relevant to the final sentence and to the question of whether a custodial sentence can be suspended on probation. It may also support the argument that the overall circumstances do not justify applying the higher sentencing range.

Challenging the alleged aggravating feature can be decisive. If it cannot be proven, only the lower sentencing range for simple theft may remain applicable.

Is a fine possible under Section 243 StGB?

Section 243 StGB provides for imprisonment from three months to ten years. A fine is therefore not directly specified in the sentencing range.

However, where the court considers a custodial sentence of less than six months appropriate and a short custodial sentence is not indispensable, a fine may be imposed under the conditions of Section 47 (2) StGB.

Whether this is possible depends on the legal classification and the individual sentencing circumstances.

Armed theft, gang theft and burglary of dwellings under Section 244 StGB

Section 244 StGB applies to specific qualified forms of theft. It includes

• theft while carrying a weapon or another dangerous instrument,
• carrying another instrument or means intended to overcome resistance by force or threats,
• gang theft involving another member of the gang and
• theft by breaking into or entering a dwelling.

The standard sentencing range is imprisonment from six months to ten years. In a less serious case, the sentence is imprisonment from three months to five years.

If the burglary concerns a permanently occupied private residence, the sentencing range is imprisonment from one year to ten years.

When does armed theft apply?

The weapon or dangerous instrument does not necessarily have to be used. Depending on the circumstances, carrying the object and having it accessible during the offence may be sufficient.

Complex questions frequently arise with knives, tools and everyday objects that the authorities classify as dangerous instruments. The type of object, how it was carried and whether it was readily accessible must be examined carefully.

When does gang theft apply?

Not every theft committed by several people is gang theft. The authorities must establish an agreement between several people to commit robbery or theft offences on an ongoing basis.

For the specific offence under Section 244 (1) no. 2 StGB, another member of the gang must also have participated. Merely acting together in one isolated incident does not automatically establish the required gang structure.

When does burglary of a dwelling apply?

Burglary of a dwelling requires more than entering any building without permission. The allegation must concern a dwelling and the accused must have entered it by breaking in, climbing in, using a false key or another improper opening tool or by hiding inside the dwelling.

Where the premises are used permanently as a private residence, Section 244 (4) StGB provides for a minimum sentence of one year.

Is a fine possible under Section 244 StGB?

The regular sentencing range under Section 244 (1) StGB begins at six months’ imprisonment. A fine is therefore generally not available within that sentencing range.

In a less serious case under Section 244 (3) StGB, the minimum sentence is three months. A fine may then be possible under the conditions of Section 47 (2) StGB.

Whether a less serious case applies requires an overall assessment. Relevant circumstances may include the actual danger posed by the object, the role of the accused, the value of the property, previous convictions and the manner in which the offence was committed.

Is attempted theft a criminal offence in Germany?

Yes. Attempted theft is punishable under Section 242 (2) StGB.

The decisive question is whether the accused had already taken an immediate step towards committing the offence or had only carried out a non-punishable preparatory act.

This distinction may be difficult where the allegation concerns trying to open a lock, entering property, preparing tools or approaching the property that was allegedly to be stolen.

If the accused voluntarily abandoned the offence or prevented its completion, a withdrawal from the attempt may exclude punishment under certain conditions.

Theft, burglary and robbery are not the same offence

Under German criminal law, simple theft does not require force or threats against another person.

If force or threats of immediate danger to life or limb are used to take property, the allegation may instead constitute robbery under Section 249 StGB. If force or threats are used immediately after a theft to retain the stolen property, Section 252 StGB may apply.

These offences carry substantially different sentencing ranges. Further information is available in our guide to robbery allegations in Germany.

Falsely accused of theft in Germany

Not every theft accusation is supported by reliable evidence. Allegations frequently arise after personal conflicts, relationship breakdowns, workplace disputes or disagreements about ownership.

Possible defence arguments may include:

• The property belonged to the accused.
• The owner agreed to the property being taken.
• The accused had a right to use or possess the property.
• An intention of unlawful appropriation cannot be proven.
• Witnesses observed only part of the incident.
• Witness statements are contradictory or unreliable.
• Video footage does not permit a reliable identification.
• The alleged time or location can be disproven.

Messages, invoices, contracts, photographs and other documents that may clarify ownership or consent should be preserved. Data should not be deleted or altered and possible witnesses should not be encouraged to change or coordinate their statements.

Theft allegations at work

A theft allegation involving an employer can have consequences beyond the criminal proceedings. The accused may face dismissal, claims for damages and damage to their professional reputation.

The ownership and permitted use of workplace property are not always clear. Disputes may concern tools, materials, scrap metal, medication, electronic equipment, cash or items that were intended to be discarded.

Statements made to the employer may later be used in criminal or employment proceedings. Before providing a detailed explanation, the accused should therefore obtain legal advice and clarify who is conducting any internal investigation.

Will a theft conviction appear on a German criminal record?

A conviction is generally recorded in the German Federal Central Criminal Register. However, it does not necessarily appear in an ordinary certificate of good conduct, commonly referred to in German as a Führungszeugnis.

A first fine of no more than 90 daily rates is generally not included in an ordinary certificate of good conduct if no other sentence is recorded in the Register.

Different rules may apply where several convictions exist, the sentence exceeds the relevant limit or an official or extended certificate of good conduct is requested.

Even a comparatively low sentence may have consequences for employment, professional licences, residence status or naturalisation. These possible consequences should be considered when developing the defence strategy.

What should you do after receiving a police summons for theft?

Do not make a statement without reviewing the file

As a suspect in German criminal proceedings, you have the right to remain silent. You do not have to prove your innocence during a police interview.

Even a statement intended to explain or disprove the allegation may create contradictions or reveal information that the authorities did not previously possess.

Further information is available in our guide to a police summons as a suspect.

Do not attend an ordinary police interview unprepared

A suspect is generally not required to attend an ordinary summons issued solely by the police. Different rules apply to a summons issued by the public prosecutor’s office or a court.

A criminal defence lawyer can notify the police that no statement will initially be made and request access to the investigation file.

Review the investigation file first

The investigation file may reveal

• who reported the alleged offence,
• what the complainant and witnesses stated,
• whether video footage or other evidence exists,
• how the accused was identified,
• what exact sequence of events is alleged and
• which provision the public prosecutor considers applicable.

Only after the file has been examined should a decision be made on whether to remain silent or provide a carefully prepared written statement.

Further information on this stage of the procedure is available on our page about investigation proceedings in Germany.

Observe the deadline for a German penalty order

A German penalty order is known as a Strafbefehl. It allows a court to impose a criminal penalty without first holding a full public trial.

An objection must generally be filed within two weeks after the penalty order has been formally served. If no timely objection is filed, the penalty order generally becomes equivalent to a final judgment.

Further information is available in our guide to defence against a German penalty order.

Theft allegations involving juveniles and young adults

German juvenile criminal law generally applies to juveniles aged 14 to 17.

For young adults aged 18 to 20, juvenile criminal law may also apply depending on their level of maturity and the circumstances of the alleged offence.

The primary aim of juvenile criminal law is education rather than punishment. Possible measures include instructions, community service, youth detention and, in more serious cases, a youth sentence.

The lack of previous convictions, the personal development of the accused and their response to the allegation may be especially important in juvenile proceedings.

How can a German criminal defence lawyer help?

Effective criminal defence should begin during the investigation proceedings and not only after an indictment has been issued.

We can assist by

• taking over communication with the police and public prosecutor’s office,
• responding to a police summons,
• requesting and reviewing the investigation file,
• examining whether all elements of theft can be proven,
• challenging the classification under Sections 243 or 244 StGB,
• reviewing witness statements and video evidence,
• preparing a written defence statement where appropriate,
• seeking discontinuation of the proceedings,
• defending against a penalty order and
• representing the accused at trial.

The aim is not limited to reducing the sentence. Professional, immigration-related, financial and personal consequences must also be considered.

We advise and defend clients throughout Germany. Consultations can take place in person in Göttingen or remotely by telephone or video conference.

Further information about our work is available on our page about criminal defence in Germany.

Contact a criminal defence lawyer for theft in Germany

Have you received a police summons, a written questionnaire, an indictment or a German penalty order concerning theft?

Our criminal defence lawyers will review the allegation, request access to the investigation file and develop a defence strategy tailored to your case. We represent clients throughout Germany and handle communication with the investigating authorities.