Breach of Trust at Work: How to Avoid Criminal Prosecution

Chapter 1: The Story of Siegfried Knopke

At a large Berlin company developing artificial intelligence for automatic coffee machines, there worked an employee named Siegfried Knopke. His position was quite a responsible one: he controlled the budget of the innovation department, which included not only the purchase of expensive equipment but also entering into contracts with suppliers.

Siegfried decided to turn the office coffee corner into a work of art. To do so, he spent a significant part of the budget on handcrafted coffee machines and marble side tables — which, as it turned out, came straight from a catalogue belonging to his cousin Hans’ company. Before long, however, the finance department noticed the budget overrun, and an internal investigation began.

Under §266 of the German Criminal Code (“breach of trust,” German: Untreue), Siegfried was accused of using his position for personal gain, an offense punishable by up to five years’ imprisonment or a substantial fine.

Chapter 2: The Lawyer’s Pre-Trial Work

After Siegfried received notice of a possible criminal prosecution, he turned for help to a lawyer at our firm. Our lawyer — a man in a sharp suit, gold-rimmed glasses, and greying hair — had earned a reputation as an experienced and thoughtful defense counsel, though behind his composed exterior an ironic smile occasionally showed through. At the pre-trial (investigative) stage, the lawyer took the following steps:

• Requesting and analyzing the case file. The lawyer filed a formal request with the public prosecutor’s office for the case file. Once received, he carefully reviewed its contents to understand the nature and merits of the charges.
• Explaining the situation to the client. The lawyer met with Siegfried and explained in detail the nature of the charges, the possible consequences, and the defense strategy.
• Drafting a legal argument. The lawyer prepared a reasoned submission for the public prosecutor’s office demonstrating that Siegfried’s degree of fault was minor to moderate, citing §266 of the German Criminal Code together with relevant commentary.
• Filing a petition to discontinue the case. Based on the analysis of the case file and the evidence, the lawyer filed a formal petition with the public prosecutor’s office to discontinue the criminal case on grounds of minor fault, relying on §153a StPO (German Code of Criminal Procedure), which permits discontinuance where certain conditions are met.
• The prosecutor’s response. Despite the lawyer’s considerable effort and the strength of his arguments, the prosecutor’s office found them insufficient and decided to refer the case to trial — requiring the lawyer to prepare for the next stage of the client’s defense.

This intensive work at the pre-trial stage laid the groundwork for a successful defense at trial, ensuring a thorough understanding of the case file and a legal strategy focused on minimizing the consequences for the client.

Chapter 3: The Defense at Trial

Ahead of the trial hearing, the lawyer carried out extensive preparation, involving both work on the case file and engagement with the client.

• Preparing the case. Similar precedents and commentary on §266 of the German Criminal Code were reviewed to identify possible weaknesses in the prosecution’s case. Key defense arguments were prepared, based on the minor degree of fault and doubts over the extent of the alleged harm.
• Working with the client. The lawyer held several meetings with Siegfried, explaining the trial process, the questions likely to come from the court and the prosecution, and strategies for answering them. Throughout their conversations, Siegfried was struck by how the lawyer managed to combine meticulousness with sarcastic remarks that occasionally eased the tension.
• Preparing evidence. The lawyer gathered documents confirming that Siegfried’s actions had been approved by management, and obtained written statements from colleagues who spoke positively of the changes made to the office.

At the trial hearing, the lawyer presented the defense as follows:

• The lawyer’s argument. In his address, the lawyer emphasized that Siegfried had acted solely in the company’s interest, seeking to improve working conditions for staff. He stressed that, under §266 of the German Criminal Code, a conviction requires proof of significant harm and self-serving intent — neither of which was present in the client’s conduct. The lawyer invoked §153a StPO, arguing that discontinuance remained possible even at the trial stage.
• Delivery. The lawyer spoke with confidence but without aggression, showing respect for the court and opposing counsel. His address was logical and well-structured, with clear references to the case file and the relevant law. Between points, he allowed himself the occasional raised eyebrow, hinting at the weakness of the opposing arguments.
• The client’s statement. Siegfried, coached by his lawyer, expressed genuine regret about the situation and explained that his sole aim had been the company’s benefit. He described the decision-making process in detail and stated that he had not sought any personal gain — echoes of his lawyer’s guidance were audible in every word.

The court’s response. The judges listened carefully to the lawyer’s arguments and the client’s testimony. The evidence presented, along with the absence of any obvious harm to the company, made a favorable impression. The prosecution attempted to challenge the lawyer’s arguments, but its own arguments proved insufficiently convincing.

Outcome. After deliberation, the court proposed a settlement: Siegfried agreed to make a charitable donation and reimburse part of the company’s costs. The criminal case was closed without any entry being made in the criminal record register.

Chapter 4: The Lawyer’s Recommendations

Based on the outcome of the case, the lawyer offered the following recommendations for preventing similar situations:

• Always document approvals. Any significant expenditure should receive written sign-off from management.
• Avoid conflicts of interest. Purchases from relatives or friends should only be made through open tenders.
• Consult a lawyer regularly. This helps avoid actions that could be interpreted as abuse of one’s position.
• Improve legal literacy. Managers and employees are encouraged to attend seminars on corporate law to better understand their duties and limits.
• Establish internal policies. Companies should develop clear rules and policies governing procurement processes to minimize the risk of mistaken or disputed decisions.

Notes and commentary:
§266 of the German Criminal Code (“breach of trust,” Untreue): an offense involving the intentional causing of harm to a company through the abuse of authority or a position of trust. Maximum penalty — five years’ imprisonment or a substantial fine.

§153a StPO: allows a criminal case to be discontinued for minor significance where certain conditions are met, such as payment of a charitable donation or compensation for the harm caused.

Conclusion

Breach of trust in an employment relationship is a serious offense with far-reaching consequences. It undermines not only the trust between employer and employee but can also trigger both criminal and civil consequences. Preventing such cases requires vigilance, honesty, and transparency from everyone involved. Clear corporate policies, regular training, and open communication are the most important preventive measures.

Where suspicion arises, a thorough legal review is essential, since the line between permissible conduct and criminal breach of trust is often blurred. Ultimately, addressing this issue protects all parties involved and helps foster an honest working environment.

Criminal Law in Berlin

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