“Shoplifters are rarely rich enough to be diagnosed with kleptomania.”
Hector Breeze
Of all types of crime, theft is one of the most common. Theft is the secret taking of another’s property. Criminal liability for committing theft is set out in §242 (“Theft”) of the German Criminal Code (Strafgesetzbuch, 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. There are various forms of theft: simple theft, theft involving a weapon, theft committed as part of a group, embezzlement, unauthorized use of another’s vehicle, and theft of electricity. German law is quite unforgiving here, and if the necessary protective measures are not taken in time, the consequences of seemingly “harmless” pranks such as minor shoplifting can be dire. Under §§242-248 of the German Criminal Code (Strafgesetzbuch, 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 cannot be imposed.
The Juvenile Courts Act (German: Jugendgerichtsgesetz — JGG) is based on the principles of rehabilitating the young offender and preventing reoffending, and does not aim to punish a minor for the crime committed. Sanctioning a young offender is aimed primarily at making them recognize their guilt and at preventing unlawful conduct in the future. Thus, sanctions imposed on minors are, first and foremost, corrective rather than punitive in nature. To maximally protect the rights and legitimate interests of minors, the Juvenile Courts Act is oriented toward the individualized, preventive upbringing of the young offender with a view to rehabilitating their character. The state uses its tools here to help young people, whose convictions and development are not yet fully formed, recognize in time what they have done, make the right choice, and refrain from further ill-considered acts capable of leading to serious, and sometimes irreversible, consequences.
As mentioned in our earlier articles, children under the age of 14 cannot be held criminally liable. That is, if a minor under 14 commits a theft, they cannot yet be held criminally liable for it. If the minor is between 14 and 18 years old, and was aware while committing the offense that their action violated the law, they can be held criminally liable. At the same time, the state treats crimes committed by minors with heightened attention and considers each case strictly on its own merits. As a result, the sanctions applied to minors, even for an identical act, can differ substantially.
Client Story: A Fan of Fashionable Clothes
A 17-year-old came to our firm — let’s call him Stanislav. Arriving for a consultation together with his father, he explained that he needed legal support and a defense in criminal proceedings that had been opened against him. Stanislav’s story was fairly mundane, though it contained a few interesting details. Our client had been passionate about fashionable clothing since his teenage years. Unlike other, more restless children, he was genuinely happier receiving new clothes from his parents than toys. By age 12-13 he already knew his way around various clothing brands. He carefully saved every bit of pocket money he received from his parents, and later earned himself, in order to buy something new every couple of months. By the time he finished school, Stanislav knew for certain that he wanted to become a fashion designer, so the choice of where to study was never really in question. His parents were somewhat wary of such an atypical hobby for an average boy, but on the other hand did not forbid him from pursuing what genuinely interested him. Stanislav loved to wander through the city center, browsing shop windows and pondering the latest trends in youth fashion. He would often go into the shops of his favorite brands, pick out a few items he particularly liked, take them into a fitting room, try them on, look himself over, and then put the items back. Sometimes an item would stick in his mind so much that he kept thinking about buying it right up until the happy day he had finally saved enough for another new piece.
Theft in the Fitting Room
One fine day, Stanislav was strolling through the center of West Berlin, browsing the windows of his favorite brands as usual. There was nowhere in particular to be — his parents were away on vacation together, and no one was waiting at home. Our clothes enthusiast decided to step into one of the shops to look at the new summer collection. He picked out a few T-shirts and pairs of jeans, went into a fitting room, and began trying the items on one after another, checking himself in the mirror. At some point he got so carried away that he couldn’t resist the temptation to keep a T-shirt he particularly liked. A pair of jeans in his favorite shade of blue matched it perfectly. Without giving it much thought, he tore off all the price tags and labels from the new items, packed his own clothes into his backpack, and walked out of the shop. Stanislav got lucky that day — neither the security guards nor the shop assistants noticed him, apparently too busy with work that day. So our future client strolled around town in his new clothes for another couple of hours before heading home.
The Criminal Returns to the Scene of the Crime
As is well known from Fyodor Dostoevsky’s great novel “Crime and Punishment,” a criminal often returns to the scene of the crime. And so it happened with our young offender. The very next day, for reasons probably not even clear to himself, Stanislav went for a walk in the same neighborhood and passed by the shop where the theft had taken place the day before — several times. The most remarkable detail, one that defies common sense, was that he went for that walk wearing the very same items he had stolen from the shop the day before. This time luck deserted the young man: the shop’s security guard, already aware of the missing clothes and having reviewed the CCTV footage, recognized him as the thief. Naturally, the police were called to the scene right away. The young man was questioned, an incident report was drawn up, he was asked to sign the relevant documents, and was then let go. Stanislav, who had not expected such a turn of events at all, was so taken aback that he signed everything unconditionally, admitting to what he had done.
Less than two weeks later, a letter arrived in the mailbox making it unmistakably clear that Stanislav was being summoned for questioning by the police on suspicion of an offense under §242 StGB. If convicted, the young man faced a fine or even a prison term. His parents naturally found out about the incident and, once they had gotten over the initial shock, decided to seek professional help.
The Lawyer’s Work: The Case Discontinued Under §45 JGG
Our firm’s lawyer, who specializes in criminal law matters, got to work immediately.
First, he requested the case file from the police in order to study the details of the charges and choose the best defense strategy.
Second, in our young client’s case, he prepared a detailed, well-reasoned petition, with all supporting documents attached, arguing that the criminal case could be discontinued under §45 of the Juvenile Courts Act. Among other things, the arguments cited that the young man had committed the offense for the first time. Although he had been aware at the time that his actions were unlawful, he had not foreseen the possible consequences.
Our lawyer’s letter also presented substantiated arguments that the parents had had a serious talk with their son, explaining to him in detail what consequences this prank could have had for the entire family. Stanislav sincerely regretted what he had done and was fully convinced that he would never commit such foolish acts again, under any circumstances.
Outcome: The Case Discontinued
We soon received a letter from the public prosecutor’s office stating that, taking into account all the circumstances set out in the lawyer’s petition, the criminal case against the young man would be discontinued. Naturally, such leniency from the German law enforcement authorities can only be expected on a first offense. Needless to say, Stanislav’s relief — and that of his parents — knew no bounds. They thanked our firm’s lawyer for the excellent work. We, in turn, sincerely wished the young man every success in all his future endeavors, now that the door to adult life had opened before him — a life in which every action can carry fateful weight, capable of affecting everything that follows.
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