Youth is a time of carefree days, of dreams and of rash decisions: young people often feel they have nothing to lose yet, and they find it hard to judge the possible consequences of what they do. But everything must have its limits — limits that do not infringe on other people’s freedom and do not break the law.
One example of such a careless overstepping of legal boundaries was the case of our client Elvira (name changed), a fifteen-year-old schoolgirl who had moved from Kazakhstan to Germany with her parents almost 10 years earlier and whose interests our law firm was asked to represent. Elvira was a perfectly ordinary teenager who had never caused any particular trouble: she listened to her parents, did well at school and did not keep bad company. That is exactly why Viktor (name changed), Elvira’s father, could not believe his ears when the police told him over the phone that his daughter had been stopped for shoplifting.
Without a moment’s hesitation, Viktor turned to our law firm and asked for help in resolving this sudden problem on a sound legal footing. Our client told us that Elvira had not resisted when the store detectives stopped her and had voluntarily handed over the items she had put in her backpack. The police, called by the detectives, recorded the theft and questioned the witnesses, after which Viktor’s daughter was allowed to go home. Our client knew no further details. At home, Elvira tearfully confessed to her parents that she herself did not know why she had done it — she had simply liked the clothes on the mannequin very much and wanted an outfit like that. Yet the family was by no means in financial difficulty, and their daughter could simply have asked them to buy her the clothes she liked.
Our lawyer listened to Viktor and explained that the first step was to request and review the investigation records held by the police in order to assess how serious the situation was — our client did not even know the total value of the stolen items. Accordingly, once Viktor had instructed him, our lawyer wrote to the public prosecutor’s office (Staatsanwaltschaft) asking to be sent Elvira’s investigation file for inspection.
But literally a few days after the meeting with our lawyer, Elvira’s parents got in touch again in a panic: they had received a summons stating that their daughter had to appear at the police station for questioning as a suspect in a theft.
Our lawyer, who knew the ins and outs of the investigation stage (Ermittlungsverfahren), reassured the client’s parents: in this situation Elvira was not obliged to make a statement to the police, so the police simply needed to be informed of this in proper form. The parents were greatly relieved that their daughter, who was already very frightened by what had happened, would not have to deal with the police again. To this end, our lawyer sent the police an official letter stating that, on his advice, Elvira would not make any further statements in the criminal proceedings, but that a written statement of our client’s position would be prepared once the necessary investigation file had been received.
After carefully reviewing the evidence in the file and the witness statements obtained by the police, our lawyer established that, while in the store, Elvira had put two T-shirts, a skirt and knee socks with a total value of 60 euros into her backpack and then intended to leave without paying. As she was leaving the store, she was stopped by the store’s detectives, who had been watching what our client was doing. The police were therefore called and criminal proceedings for theft (Diebstahl) were opened under § 242 of the German Criminal Code (Strafgesetzbuch, StGB).
Drawing on many years of experience in handling such cases, the lawyer decided to press for the proceedings against our client to be discontinued. In an official letter to the public prosecutor’s office, the lawyer stated that Elvira deeply regretted what she had done and had understood how serious her actions were. He emphasized that § 242 StGB provides for imprisonment or a fine as the penalty for theft. The offense in question was therefore not a felony (Verbrechen) but a misdemeanor (Vergehen) within the meaning of § 12 StGB, and consequently posed no great danger to the public.
§ 153 Abs. 1 of the German Code of Criminal Procedure (Strafprozessordnung, StPO) allows the public prosecutor’s office to discontinue criminal proceedings where the offense is a misdemeanor, the offender’s guilt is considered minor and there is no public interest in prosecution. Guilt is considered minor where it falls below the average degree of guilt compared with misdemeanors of the same kind.
In this context, the lawyer stressed that fifteen-year-old Elvira led a law-abiding life and had never before come to the attention of the criminal justice authorities, that the total value of the stolen items was only 60 euros, and that our client had also returned all the items voluntarily, so the store had suffered no loss.
In addition, her parents had had a serious talk with Elvira, explaining once again why it is necessary to live within the law and what the possible consequences of breaking it are. Moreover, the situation would be a valuable lesson for our client for the future.
For these reasons, our lawyer insisted that the criminal proceedings against our client be discontinued under § 45 of the German Youth Courts Act (Jugendgerichtsgesetz, JGG) with reference to § 153 Abs. 1 StPO.
The public prosecutor’s office reviewed the investigation file and our lawyer’s arguments and concluded that the proceedings could indeed be discontinued in this case, since Elvira’s guilt was in fact minor and the experience would serve her as a warning for the future.
Elvira’s parents, who had been very worried about the outcome — a criminal record, even for such a minor theft, could have seriously affected their daughter’s future — were greatly relieved, and Elvira promised never again to act so impulsively and thoughtlessly.
Unfortunately, the situation described in this article is very common. Many people regard paying a fine (Geldstrafe) as a favorable outcome of the proceedings. We would like to stress once again, however: if a court imposes a fine on you — by judgment or by a penalty order (Strafbefehl) applied for by the public prosecutor’s office — then, however small the amount, you are convicted, and the conviction is entered in the Federal Central Criminal Register (Bundeszentralregister). A first conviction to a fine of no more than 90 daily rates (Tagessätze) as a rule does not appear in a standard certificate of good conduct (Führungszeugnis), but the entry remains in the register. A payment made as a condition for discontinuing proceedings, by contrast, is not a conviction. That is why we strongly recommend contacting an experienced lawyer in good time, who can help you avoid or mitigate the possible negative consequences of your actions.
All rights reserved. Copying or republishing this article requires a link to the original source.
