“It is much harder to see the problem than to find the solution. For the former you need imagination, for the latter only skill.”
John Bernal
Property is strictly protected under Germany’s Criminal Code (German: Strafgesetzbuch, StGB). Criminal liability for committing theft (German: Diebstahl) is set out in §242 StGB.
A thief may act alone or as part of a group, in the victim’s presence or absence, spontaneously or by prior arrangement. Depending on these and other circumstances, the German Criminal Code provides for liability for the specific type of offense. §243 StGB lists the circumstances that aggravate the punishment for theft. §244 StGB contains the qualified elements of theft, covering the taking of another’s property using a weapon or as part of a gang, as well as residential burglary. §244a StGB punishes aggravated group theft. §252 StGB sets out the penalty for theft followed by the use of force. §247 StGB defines the penalty for theft committed by family members of the victim or by co-tenants living with them. Theft of items of minor value is prosecuted under §248a StGB. The punishment for theft depends on the classification of the offense, the motives 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. All forms of theft share common features — objective and subjective — set out in §242 StGB. Under this provision, theft, from an objective standpoint, is the taking of another’s property with the intent of unlawfully enriching oneself or a third party. 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 was convinced they had a right to it, they are not subject to criminal punishment — only civil liability may apply in that case.
In our law firm’s practice, we represent clients’ interests and provide their defense, including in criminal proceedings. In such cases, the professional lawyer’s task is to establish every circumstance relevant to the case in order to determine whether the suspect is guilty. Based on this, the lawyer, in agreement with the client, chooses the best defense strategy — a full acquittal of the accused or a sentence strictly proportionate to the severity of the act, taking all mitigating circumstances into account.
Client Story: An Interpol Search
A client once came to us — let’s call him Georgiy — asking for help understanding a criminal case that had been opened against him. This story took place about a year earlier. Georgiy, who permanently resided in Ukraine, would occasionally drive to Germany in his own truck. During these trips he stayed with friends, from time to time helping them transport furniture, household and building materials, or car parts. On one such trip, our future client was stopped by the traffic police while driving his own truck on suspicion of transporting stolen auto parts. That incident ended rather badly: the truck and the parts were seized to clarify the circumstances of the case, and Georgiy was immediately taken into custody within the country. Georgiy served the three-month pre-trial detention period set for him and was then released on bail pending the trial hearing. The truck, however, remained in the custody of the law enforcement authorities as an item of substantial importance for clarifying the case. The man, now on foot, returned to his native Ukraine by bus, and over time the memory of that episode began to fade.
Unfortunately, the same could not be said of the criminal proceedings (German: Ermittlungsverfahren) themselves, whose machinery kept grinding on slowly but surely. A trial hearing was scheduled in the case, to which Georgiy was summoned as the defendant charged with an offense under §243 StGB. Living in Ukraine at an address other than his registered one, Georgiy had no idea what was happening and no longer followed the proceedings. In the end, the hearing did not take place, and the case was suspended due to the defendant’s absence. The presiding judge then sent a notice to the International Criminal Police Organization (Interpol) stating that Georgiy was evading criminal prosecution, with instructions to alert the authorities if the person being sought reappeared in Germany. Remarkably, Georgiy, unaware of any of this, did in fact re-enter Germany several times after that notice was filed with Interpol, and his documents were checked twice by police officers. Since there was no arrest order on file, he was released each time without incident, with his whereabouts in Germany reported back to the court. Yet the case never advanced far enough for an arrest to be carried out.
Defense Strategy and the Petition to the Public Prosecutor’s Office
After receiving and carefully reviewing all the information in the client’s case, the lawyer, in agreement with the client, prepared a petition to the public prosecutor’s office (German: Staatsanwaltschaft). In it, he requested, first, that the truck — for which all investigative measures had already concluded — be returned to our client. Second, the lawyer petitioned for the case against Georgiy to be discontinued under §153(1) of the German Code of Criminal Procedure (German: Strafprozessordnung, StPO) on the grounds that the offense was of minor significance. The lawyer supported the petition by arguing that:
- the case file contained no evidence that our client had personally stolen the property, nor evidence that Georgiy knew he was transporting stolen auto parts;
- our client had no prior offenses in Germany and had been detained on a criminal charge for the first time in his life;
- moreover, after being detained at the alleged scene of the offense, the suspect had already served a three-month term of pre-trial detention.
The response from the public prosecutor’s office came quickly this time. Prosecutors stated that, taking our arguments into account, they were prepared to discontinue the criminal case under §153(1) StPO on condition that Georgiy waive his right to claim compensation for the time spent in detention during the three-month period. A favorable decision was also obtained allowing the truck, as well as the previously paid bail, to be returned to its lawful owner. Naturally, our client agreed to the proposed terms, regaining his vehicle and the freedom to travel within the European Union, including Germany.
The Role of a Lawyer in Criminal Proceedings
In closing, we would like to once again draw our readers’ attention to the role of a defense lawyer in criminal proceedings. Defense counsel is admitted to a criminal proceeding from the moment a formal decision naming a person as the accused is issued, or from the moment criminal proceedings are opened against them. A criminal defense lawyer may review all procedural documents concerning their client, file motions for various investigative measures, challenge unlawful actions by police officers or prosecutors, obtain statements, search for evidence that mitigates the client’s guilt or proves an alibi, and take part in all investigative measures involving the client to ensure they are carried out strictly in accordance with the law and do not violate the client’s rights or procedural standing. A lawyer’s role in a criminal case is not limited to procedural steps during the investigative proceedings — it remains just as active during the trial itself. If you find yourself in an unpleasant situation and are unsure how to proceed, and if the help of an experienced lawyer is exactly what you need, we invite you to get in touch with our law firm.
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