“Any person who […] as a member of a gang that has formed for the continued commission of robbery or theft, steals with the involvement of another gang member, shall be punished with imprisonment from six months to ten years” – as stated in Section 244 (1) No. 2 of the German Criminal Code (StGB).
In contrast to simple theft under Section 242 (1) StGB, the commission of which results in a fine or imprisonment of up to five years, so-called gang theft under Section 244 (1) No. 2 StGB entails a significant increase in the penalty .
This makes it all the more important to know the requirements for so-called gang theft precisely and to examine them thoroughly in each individual case.
First, the qualifying offense of Section 244 (1) No. 2 StGB requires the existence of a theft under Section 242 (1) StGB, i.e., the taking of another’s movable property with the intent of unlawful appropriation.
In addition, there must be the existence of a gang, i.e., an association of at least three persons who have joined together to commit thefts or robberies, as well as the commission of the theft with the involvement of another gang member.
The specific elements of gang theft have long been a subject of discussion in case law and legal literature.
Most recently, the Federal Court of Justice had to address 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 together and decided to break into various restaurants at night—primarily “Burger King” branches previously “scouted” by B—to steal the contents of safes and cash registers, as well as other valuable items.
B obtained suitable specialized tools to gain access to the buildings and the contents of the safes. He instructed his accomplices H and K before each burglary regarding the crime scenes he had selected.
Once they arrived, the division of labor among the three was usually as follows: H or B would regularly break into the buildings while one of the other participants stood watch outside. The loot was divided among the three men.
In some cases, however, H and K committed the acts without B’s involvement and then split the loot equally between themselves. According to their own statements, the two concealed these burglaries from B because he “would not have approved of such unauthorized action.”
The Regional Court of Potsdam (LG Potsdam, Judgment of July 30, 2021 – 24 KLs 11/20) also classified these acts, committed only with the involvement of H and K, as gang crimes and accordingly convicted H and K of gang theft pursuant to Section 244 (1) No. 2 StGB.
However, the BGH took a different view: “The Regional Court’s assumption that [these cases] also constituted gang crimes lacks a sustainable evaluation of the evidence.” (BGH, Decision of Nov. 15, 2022 – 6 StR 68/22)
“While, following a prior […] gang agreement, an act committed by only two members can be qualified as a gang crime—since the third member required for the existence of a gang does not need to be involved in the specific commission of the act—a prerequisite for assuming a gang-related commission, in addition to the involvement of another gang member, is that the individual act is an outgrowth of the gang agreement and is not carried out independently and exclusively in the own interest of those directly involved […].”
In the present case, according to the BGH, the burglaries committed by H and K corresponded “almost prototypically” to the “pattern of the act provided for by the gang agreement,” and the initial gang agreement also remained in effect despite the solo actions, so that B, H, and K generally continued to qualify as a gang.
Furthermore, for the assumption of gang theft, it is not necessary for every gang member to have knowledge of every act of the gang at all times.
However, the decisive factor was that H and K acted here solely out of self-serving motives and deliberately wanted to exclude B from the commission of the act and the distribution of the proceeds. Their burglaries committed as a pair therefore did not represent an expression of the gang agreement made with B and, consequently, did not constitute gang thefts.
In the view of the BGH, H and K were therefore “only” liable for simple theft in joint authorship pursuant to Sections 242 (2), 25 (2) StGB in this regard. There was no such liability on the part of B.
This case shows once again what a major influence a precise examination of the elements of an offense can have on the sentence—and why it is therefore essential to keep every detail of the facts in view regarding its significance for the legal assessment and to evaluate it on a case-by-case basis.