Accusation of Theft

How should I act correctly when accused of theft?

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.