“Anyone who […] as a member of a gang, which has joined together for the continued commission of robbery or theft, steals with the assistance of another gang member, shall be punished with imprisonment from six months to ten years” – this is what is stated in section 244, paragraph 1, no. 2 of the Criminal Code.
In contrast to simple theft under section 242 (1) StGB, the commission of which carries a fine or imprisonment of up to five years, so-called gang theft under section 244 (1) no. 2 StGB carries a considerably more severe penalty.
It is therefore all the more important to know exactly what the preconditions for so-called gang theft are and to check them thoroughly in each individual case.
First of all, the qualifying offence under section 244, paragraph 1, no. 2 of the Criminal Code presupposes the existence of theft under section 242, paragraph 1 of the Criminal Code, i.e. the taking of another person’s movable property with the intention of appropriation.
In addition, there must be a gang, i.e. a group of at least three persons who have joined forces to commit theft or robbery offences, as well as the commission of the theft with the assistance of another gang member.
The elements of the offence of gang theft have always been discussed in detail in case law and literature.
Most recently, the Federal Supreme Court had to deal with the question of whether two gang members can be convicted of gang theft if they commit thefts without informing the third gang member.
In the spring of 2019, the defendants B, H and K joined forces and decided at night to break into various restaurants, including in particular “Burger King” branches, which had previously been “scouted out” by B, in order to steal the contents of the safes and cash registers and, if necessary, other items of value.
B obtained suitable special tools to get into the buildings and the contents of the safes. He instructed his accomplices H and K before the burglaries with regard to the crime scenes he had chosen.
Once they arrived, the division of labour between the three of them was usually as follows: Regularly, H or B broke into the buildings and one of the other participants stood “lookout” in front of the buildings. The loot was divided among the three men.
In some cases, however, H and K committed the offences without the participation of B and then divided the loot equally between them. According to their own statements, the two concealed these burglaries from B because he “would not have approved of such unauthorised action”.
The Potsdam Regional Court (LG Potsdam, judgement of 30 July 2021 – 24 KLs 11/20) also classified these offences, which were only committed with the participation of H and K, as gang offences and sentenced H and K accordingly for gang theft pursuant to section 244 I no. 2 of the Criminal Code.
However, the BGH took a different view: “The LG’s assumption that [these cases] were also gang-related offences lacks a viable assessment of the evidence.” (BGH, decision of 15.11.2022 – 6 StR 68/22)
“It is true that after a prior […] gang agreement, an offence committed by only two members can qualify as a gang offence; because the third member required for the existence of a gang does not have to be involved in the actual commission of the offence. However, a prerequisite for the assumption of a gang-like mode of commission is, in addition to the participation of another gang member, that the individual offence is an outflow of the gang agreement and is not carried out detached from it exclusively in the own interest of the respective direct participants […]”.
In the present case, according to the Federal Supreme Court, the burglaries committed by H and K corresponded “almost prototypically” to the “crime pattern provided for by the gang agreement” and also the initial gang agreement continued to exist despite the solo acts, so that B, H and K were in principle still to be qualified as a gang.
It was also not necessary for the assumption of a gang theft that each gang member had knowledge of every act of the gang at all times.
The decisive factor, however, was that H and K acted solely out of selfish motives and deliberately wanted to exclude B from the commission of the crime and the sharing of the profits. Therefore, the burglaries committed by the two of them did not constitute an expression of the gang agreement made together with B and consequently did not constitute gang thefts.
In the opinion of the Federal Supreme Court, H and K were therefore “only” liable to prosecution for simple theft in complicity pursuant to §§ 242 (2), 25 (2) StGB. There was no criminal liability of B in this respect.
This case shows once again how much influence a precise examination of the facts of the case can have on the sentence – and how indispensable it is therefore to look at every detail of the facts of the case with regard to its significance for the legal examination and to assess it on a case-by-case basis.