No gang theft in the case of “solo acts” by gang members

“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.