Petty theft is a fairly common reason for clients to turn to us for help, and accordingly it is one of the most frequent areas of our firm’s work. The object of a theft may be valuable jewelry or groceries worth less than 5 euros. The reasons for committing this offense vary widely, and it is committed by people from all walks of life.
Marina and Konstantin (names changed) could never have imagined that one day they would have to turn to a law firm — let alone as suspects. While the circumstances were being clarified, Marina told the lawyer that her husband Konstantin suffered from progressive dementia. The disease manifests itself in problems with memory, judgment, language, orientation and communication, and ultimately leads to memory loss and impaired thinking. People with this condition need constant attention and care, including help with dressing and eating. Konstantin’s illness was still at an early stage and had not yet been officially documented in any medical report. It should be noted, however, that even the first signs of the disease include a deterioration in memory for recent events and problems with spatial orientation. A person may, for example, get lost in surroundings they know well or be unable to find their own home. Konstantin was no exception. Marina, who had already noticed such changes in her husband, watched over him particularly carefully, but she did not always succeed.
The couple usually went shopping together, so when Konstantin told Marina he just wanted to sit on a bench in front of the house, she did not think much of it and let him go out alone, intending to keep an eye on him from the window. But Konstantin, driven by his illness, sat on the bench for a while and then set off for the shop on his own. Apparently not fully aware of what he was doing because of his illness, he took a bottle of vodka in the shop and hurried back outside. As he walked past the checkout, shop staff stopped him because he had not paid for the item, and called the police. The police arrived promptly and a report was soon drawn up. The bottle of vodka was seized and immediately returned to the shop, and the man was allowed to go home.
Once home, Konstantin told his wife everything. Marina was very frightened but secretly still hoped that it would all somehow sort itself out, since the bottle had been returned to the shop. Her hope was not fulfilled. Some time later a letter from the police arrived summoning him for questioning on suspicion of theft (Diebstahl) under § 242 of the German Criminal Code (Strafgesetzbuch, StGB). The law provides for a fine or imprisonment of up to five years for this offense. Taking all the known circumstances into account, however, the lawyer expected to be able to have the proceedings discontinued for the client’s minor culpability under § 153 Abs. 1 of the German Code of Criminal Procedure (Strafprozessordnung, StPO) — above all because the bottle of vodka was worth no more than 10 euros. In addition, the shop had suffered no loss, as the stolen item had been returned immediately. Our client’s progressive dementia also played a certain role. All the circumstances of the case therefore suggested that there should be no difficulties.
But when the investigation file requested by the lawyer arrived at the firm, an interesting detail came to light.
As a rule, the public prosecutor’s office (Staatsanwaltschaft) always adds to the investigation file an extract from the register of the person’s previous offenses. If a person has no prior convictions, for example, the extract states that there are no entries in the register. If there is a prior conviction, a corresponding entry appears. In Germany, the periods after which such entries are removed from the register (Tilgungsfristen) are laid down in the Federal Central Register Act (Bundeszentralregistergesetz, BZRG) and depend on the sentence imposed. Since this case was only about a stolen bottle of vodka, and the clients said they had always been law-abiding, the lawyer had by no means expected to find a whole list of offenses previously committed by the client when he looked at this extract.
It turned out that Konstantin already had previous convictions for fraud — in five separate cases. The sanctions included a fine of 90 Tagessätze (daily rates) and, in one case, even a one-year prison sentence, albeit suspended on probation. The only reassuring point was that the probation period had already expired and the vodka episode had occurred several months later, not during the probation period. Had the new offense been committed within that period, the prospects of success would unfortunately have been much less favorable: the suspended sentence could even have been converted into an actual prison term.
To clarify all details of these newly discovered circumstances, which changed the situation fundamentally, the lawyer contacted the clients by phone. The clients assured him that they had not mentioned it because they considered it unimportant and irrelevant to the present case. Of course, this fact was unpleasant for them too, and perhaps they simply did not want to tell the lawyer. Everyone naturally decides for themselves what to share, with whom and to what extent, but it is important to understand that such circumstances play an enormous role, especially in criminal cases — above all because a lawyer simply needs all the relevant information to build an effective defense strategy.
When discussing the case with the lawyer, the public prosecutor’s office pointed to the existing convictions and stated that it had already applied to the court for a decision convicting the client and imposing a fine. The fine was small, but it would have meant yet another conviction for our client — another entry in his criminal record. And that could have made our client’s already difficult situation even worse.
The case was thus submitted to the court. In such cases the judge may either decide immediately alone, or order that the case be heard at a main trial (Hauptverhandlung), or propose that the proceedings be discontinued. As soon as the lawyer learned that the public prosecutor’s office had applied for such a decision and the case had been forwarded to the court, he had to act without delay. Taking the new circumstances into account, and with the aim of obtaining the mildest possible outcome for the client, the lawyer contacted the judge. After lengthy negotiations, the thoroughly prepared lawyer succeeded in persuading the judge to discontinue the proceedings under § 153a of the German Code of Criminal Procedure (StPO) on the grounds that the offense was minor. Of course, the judge cannot take such a decision alone: it requires the consent of all parties to the proceedings. The lawyer therefore also had to persuade the public prosecutor’s office.
To this end, the lawyer wrote an official letter describing the whole situation in detail and setting out the essence of the case. He pointed to the following factors in our client’s favor. First, the client was an elderly man suffering from progressive dementia; although his wife looked after him, she did not always manage to do so. The lawyer could not rely on medical reports confirming Konstantin’s illness, as none existed. However, he enclosed reports from the psychiatrist who had been treating the man for a long time, which in places mentioned the client’s pathological condition and possible symptoms of such a disease. Second, the case concerned only a bottle of vodka worth no more than 10 euros, which had been returned to the shop immediately and undamaged, so the shop had suffered no loss. The lawyer also pointed out that the client admitted his guilt and deeply regretted his actions. As a result of our lawyer’s arguments, the public prosecutor’s office also agreed to discontinue the proceedings against our client under the provision of the Code of Criminal Procedure proposed by the lawyer, and the judge discontinued the proceedings after ordering a small payment to the state treasury.
In this way the client avoided another conviction. In his case this was crucial, as by then he already had a fairly extensive criminal record and a further entry would only have made his situation worse. Moreover, given his state of health and the uncertainty as to when he might lose legal capacity and what might happen in the meantime, not having a further conviction is a real advantage for him now.
This example shows particularly clearly how important it is to give your lawyer complete and truthful information in good time. Every detail, however small, can significantly affect the course of the entire case, and only with complete information can a lawyer build a truly effective defense strategy that works in the client’s favor. In this respect a lawyer can be compared to a doctor. To diagnose an illness correctly and choose the right treatment, a doctor needs to know your full medical history. In the same way, a lawyer needs to know your legal “medical history”. We therefore recommend that you always share all information with your lawyer — after all, who else is going to help you get out of a difficult situation?
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