“What big thieves get away with, petty thieves get punished for.”
Ivan Krylov
Petty theft is, unfortunately, a fairly common occurrence, and it’s one of the main reasons clients in need of legal help come to us — this area is, accordingly, one of the most common practice areas at our law firm. Notably, stolen items can range from expensive jewelry, clothing, and shoes, to groceries worth as little as €5. The reasons behind these offenses are always different, and they are committed by the most diverse range of people. In our professional work, we always try to refrain from philosophical judgments about the motives that drive people to risk their own freedom and peace of mind, sometimes for entirely trivial material gain. When representing our clients’ interests, our firm’s lawyers try to set aside subjective notions of good and evil and, in every case, ensure humane and fair treatment of the offender. Where they genuinely deserve punishment, that punishment should be proportionate to the severity of what was done.
Under the law, theft is understood as the taking of another’s property. One of the biggest temptations that pushes a person toward theft is the assumption that no one will ever find out. Accordingly, statistics show theft to be one of the most common offenses committed by people of every age and social status around the world, including in Germany. As we have mentioned in earlier articles, shoplifting is a particular form of theft involving the unarmed, non-confrontational taking of merchandise from retail stores. It is a descendant of stall and market theft, which emerged with the first street markets, and took on a new form with the spread of large-scale chain retail.
Criminal liability for theft is set out in §§242-248 of the German Criminal Code (Strafgesetzbuch, StGB). Theft can only be committed intentionally — intent is a necessary subjective element. Where intent to unlawfully appropriate the stolen item cannot be proven, the accused cannot be convicted of theft. So if the person who took the item is convinced they had a right to it, they are not subject to criminal punishment — only civil liability may apply in that case. The punishment for theft depends on how the offense is classified, the motive behind it, and its consequences. A criminal penalty for theft without aggravating circumstances (§242 StGB) may be limited to a modest fine. Theft committed under aggravating circumstances (§243 StGB) is punishable by imprisonment from three months to ten years; in that case a fine is excluded. Unfortunately, as is especially common with shoplifting cases, people tend to underestimate how serious the situation is, assuming that no one will even call the police over a “stolen trifle.” Unfortunately, for offenders, this is far from true. In this article, we describe one curious case from our practice, in which we defended the interests of a married couple — let’s call them Marina and Igor — who were caught shoplifting at a department store.
Client Story: A Pair of Pants in the Husband’s Bag
The husband and wife had moved to Germany about a year earlier and had not yet fully adjusted to local rules, customs, and norms, which occasionally landed them in awkward situations. Even so, being doctors by profession, they had managed to find work in their field and were on a probationary period at a private German clinic. Everything seemed to be going well, until an unfortunate incident happened to them at a Real department store. The couple came to the store to buy everyday clothes and shoes for work, along with various household items. They had plenty of time, so they leisurely browsed the available shirts, then moved on to pants. Not even Marina herself likely knows what prompted her to do it, but after selecting a pair of pants suited to her husband, without much thought, she put them into her husband’s personal bag.
Unfortunately for our clients, this did not go unnoticed by the security guard on duty. He had already been watching the couple, who had seemed suspicious to him and had already spent over an hour in the discount store. Marina’s subsequent behavior only bewildered the honest German citizen further. When the guard approached Igor, who was about to leave the store with the unpaid pants, his wife tried to hide, pretending she had nothing to do with him. Remarkably, when speaking to the guard, she declared, with a straight face, that she had “no connection whatsoever” to “that man.” It would have all been quite funny, if it hadn’t been so sad. The guard showed professional composure, politely heard out the “caught” customers, made the appropriate notes, copied the detained couple’s identity documents, and simply said he would report the incident to the relevant authorities — that is, the police.
Naively, the couple didn’t think much of the incident at first. They were absorbed in their intensive work at the private clinic and had high hopes of successfully completing their probationary period. Trouble came knocking unexpectedly — barely three weeks later, the unsuspecting couple received an indictment from the court.
The Lawyer’s Work: Defense at Trial, Not at the Pre-Trial Stage
The situation now looked more than serious, and Marina and Igor turned to us, hoping we could help resolve the problem they now faced. At stake here was not just the couple’s reputation, but their future employment as well — news of criminal proceedings against newly hired staff would hardly inspire confidence in a German employer. Since we were permitted to represent only one of the two defendants, by agreement with the couple, we took on Marina’s legal defense.
After requesting the case file, our firm’s lawyer found that our client was charged with stealing clothing worth €29. For this offense, she faced liability under §242 StGB — namely, a fine or imprisonment for up to five years. Since the couple had approached us only after the court had already issued its indictment, it was clear to us that discontinuing the case at the pre-trial stage would, unfortunately, no longer be possible. We therefore began actively preparing to defend our client’s interests at trial. We advised Marina to admit what she had done to the court, since this could demonstrate her remorse and persuade the judges to hand down a more lenient sentence. In addition, our firm’s lawyer argued before the court that:
- the offense had genuinely been committed without malicious intent — on the contrary, “out of foolishness”;
- the stolen item was of low value;
- this was the first time in her life the woman had committed an offense punishable under the German Criminal Code;
- Marina deeply regretted her act and would never repeat such offenses in the future.
Outcome: A €50 Fine Instead of a Criminal Record
The above arguments, along with other persuasive points, were taken into account by the court in reaching its decision. Fortunately, this time, with our help, Marina managed to “get off with a scare.” The case was discontinued under §153a of the German Code of Criminal Procedure (Strafprozessordnung — StPO) for minor significance, and Marina was required to pay a €50 fine.
Conclusion
We sincerely hope this unpleasant experience serves as a valuable lesson for our client and her husband. Germany is a state governed by the rule of law, where the law is respected and upheld. Immigrants and tourists alike are required to abide by the rules of the country whose benefits they enjoy. We therefore advise you never to “play games” with something that may seem insignificant to you but is prohibited by law. And should such an incident ever happen to you or your loved ones, we advise you to seek the help of experienced lawyers without delay, who can assist you through a difficult life situation.
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