Veronika (name changed) had been living in Germany for only a very short time. Less than six months had passed since she moved to the country to join her husband Alexander (name changed) under the family reunification rules (Familiennachzug) when she found herself in an unpleasant situation and had to seek legal assistance.
At that time, Veronika barely knew the language, the cultural particularities or the generally accepted rules of conduct; she did not know how things worked in the country or what was legally permitted and what was not.
One day, Veronika and Alexander went shopping together. The couple’s microwave had broken down at home, and they decided to buy a new one. After visiting several electronics stores, they settled on what is probably one of the largest home appliance and electronics retailers in Germany — “Saturn”.
Veronika was pleasantly surprised by the wide range of products in the store. Thinking things over, looking at and comparing the various products, the couple did not notice how quickly time was passing. By then they had already spent about three hours in the store, constantly moving from one floor to another and getting distracted by other items they had not originally planned to buy. It was mainly Veronika who was absorbed in choosing. Alexander, on the other hand, waited for his wife to make up her mind, stood somewhat apart and took little part. After all, he was already a little over 60 and very tired after so much time in the store. The only thing that helped him was his rollator, with which he got around. Veronika often paid no attention at all to what her husband was doing.
Having finally decided what to buy — one of the microwaves and an iron — they had a sales assistant prepare the paperwork and went to the checkout with it to pay. After waiting in a long queue and paying by card, they were about to head to the collection point for bulky goods when store security staff suddenly approached the couple and asked them to come along. Veronika was utterly astonished and at first did not understand what was happening at all. But from the security staff’s tone she sensed that something serious was going on. The couple were taken to a special room used to hold people suspected of theft. Security then called the police, and once the officers arrived, a search of Veronika’s and Alexander’s personal belongings began. During the search, a packaged portable power bank for mobile phones was found in the basket attached to the front of Alexander’s rollator.
As it turned out, Alexander had put the portable phone battery into the rollator’s metal basket right at the start. The package was small, and since the basket also held other personal belongings of his — brochures, magazines, a scarf — the package beneath them was quickly forgotten.
During the three hours in the store, Alexander had probably forgotten that he had put the charger there. But by now it was too late. In fact, only the microwave and the iron had been paid for at the checkout. And the couple had stood in the queue for a long time and could have thought everything over during that time. So when they walked away from the checkout with the unpaid item and headed toward the store exit, the elements of theft were in fact present.
As a result, criminal proceedings were opened against both of them under § 242 of the German Criminal Code (Strafgesetzbuch, StGB) for theft (Diebstahl) of a portable power bank for mobile phones.
For this offense, the law provides for a fine or imprisonment of up to five years.
For some time, Veronika assumed that the proceedings had been opened only against her husband. After all, the battery had been found among his belongings, and she herself had nothing to do with it and had neither seen nor known that it was in the rollator. Convinced after the incident that she had nothing to fear, she stopped worrying about it — until, some time later, she received a court summons stating the date of the trial.
German criminal procedure provides for a so-called accelerated or simplified trial procedure (beschleunigtes Verfahren). It is conducted in a special procedural form and applies to certain categories of criminal cases. Its purpose is to dispose of criminal cases within shorter time limits and under simplified rules, and to bring the moment of punishment closer to the moment the offense was committed in order to strengthen the preventive effect of the trial and the penalty. Cases are decided on the basis of a brief statement of the charge and the evidence gathered, presented at the trial hearing, and a decision is reached on the merits.
Offenses involving foreign nationals very often end up in this accelerated or simplified procedure. There is a reason for this: a foreign national is usually in Germany on a temporary residence permit, and the accelerated procedure thus helps ensure that the offender is punished quickly. For such persons, a criminal record subsequently has many different negative consequences — for example, problems extending their residence title (Aufenthaltstitel) or obtaining a visa in the future.
Our client Veronika was a foreign national who had only recently come to Germany and was living in the country on a temporary residence permit; she was not yet eligible for a permanent one. A temporary residence permit has to be extended within certain deadlines. So when she received the court summons with the trial date, she was very frightened.
That is precisely why Veronika turned to us for legal assistance. While the question of criminal liability was not so significant for her husband, who held German citizenship and therefore had no reason to worry, for Veronika it was crucial to have the proceedings ended and to avoid a criminal record, so as to prevent problems with the immigration authority (Ausländerbehörde).
Acting as Veronika’s defense counsel, our lawyer requested the investigation file, which included video footage recorded by a camera in the store. The video captured the exact moment when Alexander put the charger into his rollator. Veronika was indeed not nearby at the time. Throughout the entire time they spent in the store, the item lay among her husband’s other personal belongings in the rollator. And, just as the client had described, she paid no attention to her husband at all; almost the whole time, each of them went their own way, looking at whatever interested them.
In criminal law, establishing a person’s guilt and criminal liability requires that all elements of a criminal offense (Straftatbestand) be present. This means proving not only the objective but also the subjective elements of the offense. If even one of them is missing, there is no criminal offense at all, and the act is not punishable. In this case, Veronika and Alexander were accused as joint perpetrators (Mittäter) of an intentional offense — theft. Intent on our client’s part, however, was highly questionable.
This became the central point on which the lawyer based his argument in court. At the hearing, the lawyer drew the judge’s attention to the following circumstances. Throughout almost the entire time in the store, the client had been moving around separately from her husband, completely absorbed in choosing products, and had not paid attention to what he was doing. She had not seen the moment when her husband put the portable power bank into the rollator’s basket and had not even been near him at the time. This could also be clearly seen in the video footage provided by the store. Moreover, having been in Germany for only a short time, she had trusted her husband completely and relied on him knowing how everything worked, since he had lived in Germany for a long time.
The judge heard both our client and her husband and, taking the lawyer’s arguments into account, acquitted our client because no criminal offense had been committed, which brought the proceedings against her to an end. We thus achieved the goal we had set, and Veronika was spared a criminal record.
Had she been convicted and the judgment become final, the client would not only have had to pay a fine but would also have suffered damage to her reputation: the conviction would have been entered in the Bundeszentralregister (Federal Central Criminal Register), and she would have had a criminal record. This, in turn, would have led to problems with the immigration authority and, accordingly, with the extension of her residence permit.
Thanks to the lawyer, who skillfully used the evidence in the file, the time limits and the indirect nature of the evidence of the client’s guilt to her advantage, the proceedings were brought to an end without any legal consequences. Only a professional can recognize all these legal subtleties, give the client sound advice and set the right strategy. That is why we strongly recommend always seeking legal assistance from a lawyer, especially in criminal matters.
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