Most people know the film “Mr. & Mrs. Smith.” A married couple, both professional assassins, have lived together for years without either knowing what the other really does for a living. And when they are practically set against each other and realize that their lies nearly led them to kill one another, the two stick together to the very end — because at that very moment they understand what has been holding them together all along. Since time immemorial, the thing that holds people together has been called love. Many directors have long used a similar motif: he and she, a man and a woman who understand each other perfectly and pursue criminal schemes together. One can’t help thinking that this is not such a rare thing in real life, if filmmakers keep coming back to the theme. As the saying goes, husband and wife are one flesh and one soul. Our next story about a criminal case successfully concluded by our law firm is about exactly such a couple — except that these two had no intention of killing anyone.
Mr. L. came to Germany from Latvia and lives with his partner, Ms. E., in a German city. Their love was so strong that even in financial hardship they shared their last crumbs. But one fine morning, the two of them simultaneously hit upon a plan to improve their rather unpleasant financial situation, at least for a while. They decided to steal. Nothing too complicated: they planned to use what is today the most widespread way of getting money quickly — taking goods from a store without paying for them. One might think at that moment that this would hardly be a noticeable loss for a large supermarket, but society regards such acts as dangerous, and even thefts of low-value items are punished by law. On the way to the supermarket, the two went over the plan several times. Each knew what to do, and both were aware that it could be dangerous. But in such situations a shared plan and the other person’s agreement are often highly motivating. When there are two or more perpetrators, the sense of committing an unlawful act at all often gets lost. When they entered the supermarket, they had no idea how it would all end. Yet, as it later turned out, they were not particularly afraid of punishment. What mattered more was staying together and not being separated at any price.
“Easy” Pickings
Our client, Mr. L., together with Ms. E., did the following: in a branch of a well-known supermarket chain, they stole 12 packs of cigarettes. Together with his partner, Mr. L. took the cigarettes and put them in a backpack to make it easier to avoid paying for them at the checkout. They intended to pass through the checkout separately. Mr. L. went first. Already outside the store, he was stopped by an employee who asked him to explain himself, as she suspected him of theft. By that point he had already relaxed, having passed the checkout unnoticed, as planned. But Mr. L. kept his composure, grabbed the interfering sales assistant forcefully by the arm, twisted it behind her back and was then able to get away from the scene. As for Ms. E., she had only just passed the checkout when she was immediately stopped by a second sales assistant, who had also been watching the whole situation. The store staff called the police. Based on Ms. E.’s statement, our client was identified. Mr. L. thus faced a serious charge: robbery-like theft (räuberischer Diebstahl) in conjunction with bodily harm (Körperverletzung) under §§ 223 Abs. 1, 252, 242 Abs. 1, 249 Abs. 1, 52 of the German Criminal Code (Strafgesetzbuch, StGB).
Since the offenses mentioned above carry a minimum sentence of one year’s imprisonment, our client was entitled by law to mandatory defense (notwendige Verteidigung) in the form of a court-appointed defense lawyer (Pflichtverteidiger) under § 140 Abs. 1 Nr. 2 of the German Code of Criminal Procedure (Strafprozessordnung, StPO). Even in this situation, however, the accused can have a say in which lawyer represents his interests. Mr. L. was given 7 days to decide. Within that period he could either choose a defense lawyer himself or a court-appointed lawyer would have been assigned to him from a list kept for that purpose. It was important to Mr. L. that his defense be reliable, as he was facing a severe sentence. He himself was in pre-trial detention (Untersuchungshaft) and separated from Ms. E. The choice of lawyer was therefore hers to make, and she chose our law firm. One of our firm’s advantages is that we work not only in German but also in Russian. Since Mr. L. did not have a full command of German, this was an important factor in choosing his counsel. After all, it also matters a great deal that our client could describe the situation in the fullest detail in Russian — and, above all, that trust between client and defense lawyer is built more quickly this way. So we familiarized ourselves with our client’s case file and got to work.
Our goal in these proceedings was to obtain a more lenient sentence for our client. Since many of the facts were evident and he and his accomplice had been caught in the act, the defense lawyer’s task was not to prove the client’s innocence but to secure the most lenient sentence possible in this particular case.
A Few Words on Robbery-Like Theft
To understand what determines the severity of the sentence, one needs to understand the system of theft-related offenses and aggravating circumstances. Such circumstances include, for example, the use of violence or weapons, a theft committed by several persons, and the like. Where these additional elements are present, the degree of guilt increases, because the offense becomes more dangerous. A theft may thus be classified under § 243 StGB as an especially serious case of theft (besonders schwerer Fall des Diebstahls). The next level is classifying the theft as robbery (Raub). Robbery is committed by anyone who, by force against a person or by threats posing an imminent danger to that person’s life or limb, takes movable property belonging to another with the intent of unlawfully appropriating it to themselves or a third party. This offense is punishable by imprisonment of not less than one year. Robbery may also be committed under the aggravating circumstances listed in § 250 StGB. In that case the penalty becomes considerably harsher — imprisonment of not less than three years or not less than five years, depending on which facts in the proceedings indicate aggravating circumstances. In other words, the presence of certain circumstances can more than double the penalty, and in the worst case increase it fivefold.
The main offense our client was accused of is of a special nature. Under § 252 StGB, robbery-like theft is committed by anyone who, having been caught in the act of theft, uses force against a person or threatens them with imminent danger to life or limb in order to retain possession of the stolen property. Unlike robbery, then, the force here is used not to commit the offense but to secure the loot. In this case the legislature does not set a separate penalty but simply refers to the provisions discussed above, stipulating the same penalty as for a person who commits robbery. It also follows that the aggravating circumstances of robbery must be examined in relation to robbery-like theft as well. The sentence in such a case can therefore exceed five years’ imprisonment. Our task was to convince the court as quickly as possible that the force used against the sales assistant did not have an aggravating effect on our client’s offense. To resolve a case like this, one needs to know not only all the circumstances of the case but also the law and the case law on the issue.
Our Work
The more we studied the case file, the clearer it became that the situation was anything but simple. On top of that, our client already had several previous convictions. And in this particular case there was irrefutable evidence, including witness statements, video footage and the fact that he had been caught in the act. His partner faced less serious charges, since she had not used any force at all. But while in pre-trial detention, our client wrote letters to his partner. Their love was to pass this test. For had the court found Mr. L. guilty on all counts, he might have had to remain separated from Ms. E. for a long time.
In our submission to the court, we took into account every aspect of the witness statements that spoke in our client’s favor. Mr. L. himself stated that he had panicked when the sales assistant approached him and asked about the theft. He said he had pushed her lightly aside and immediately ran off. The video, too, shows that there could be no question of force involving twisting her arm. The allegation of robbery-like theft therefore appeared less convincing than it had seemed on the basis of the sales assistant’s statement alone. A second point we raised also concerned the sales assistant’s statement. She had claimed that Ms. E. took 12 packs of cigarettes. The video, however, clearly shows the young woman bending down to the shelf three times to get cigarettes, each time having to stoop low to reach them. We consider it unlikely that she took out 4 packs each time — and 8 at once the last time. Equally implausible is the claim that she could have carried all 12 packs in her hands to Mr. L., who packed them into his backpack. In her later statements, the sales assistant no longer gave an exact number of packs, since, in her own words, she had not seen exactly how many the young woman had taken out and carried in her hands. These points, however, concern only the number of cigarette packs and are of secondary importance for the outcome of the case. The following point of our defense was more important.
In our view, the public prosecutor’s office (Staatsanwaltschaft) suspected our client of robbery-like theft without sufficient grounds, since the case file did not contain sufficient indications that the force was used for the purpose of securing the loot. An important criterion in such cases is what actually happened. Case law distinguishes between two scenarios. In the first, the perpetrator sees the possibility of dropping the stolen goods and thereby improving his chances of escape, but nevertheless chooses to use force in order to get away with the loot. The second describes a situation in which the perpetrator no longer has the possibility of dropping the stolen goods and, in his own perception, is forced to flee with the loot. We argued for the second scenario, because at the moment the sales assistant approached our client and blocked his way, he could no longer quickly put everything down and leave. It must also be taken into account that fewer than 12 packs of cigarettes were stolen (as it later turned out, about 6–7). Using force in order to keep them seems hardly plausible given the low value of the stolen goods. Our client’s actions may well have involved a certain degree of force, but it served only to clear his way, not to keep the stolen goods.
Since courts had already applied this case law on several occasions, our case was no exception. In each individual case, what matters is to argue the case law in a targeted way and “apply” it to the specific facts. Our client no longer had to expect a conviction for robbery-like theft, but only for simple theft. As a reminder: this offense is punishable by either imprisonment or a fine. This pleased not only Mr. L. but also Ms. E., and the two could now hope that their separation would not last as long as they had originally feared.
We thus successfully concluded our work on Mr. L.’s case and hope that our many years of experience, our theoretical knowledge and our professional approach will continue to help our future clients achieve a positive outcome.
