Section 244 of the German Criminal Code (Strafgesetzbuch, StGB) reads as follows:
§ 244 StGB — Theft with weapons; gang theft; burglary of a dwelling (Diebstahl mit Waffen; Bandendiebstahl; Wohnungseinbruchdiebstahl)
(1) Whoever
1. commits a theft in which they or another participant
a) carries a weapon or another dangerous tool,
b) otherwise carries a tool or other means in order to prevent or overcome the resistance of another person by force or by threat of force,
2. steals as a member of a gang that has joined together for the continued commission of robbery or theft, with the participation of another member of the gang, or
3. commits a theft in which, in order to carry out the offense, they break into a dwelling, climb into it, enter it using a false key or another tool not intended for opening it in the proper manner, or hide in the dwelling,
shall be punished with imprisonment from six months to ten years.
(2) The attempt is punishable.
(3) In less serious cases under subsection (1) nos. 1 to 3, the penalty is imprisonment from three months to five years.
(4) If the burglary of a dwelling under subsection (1) no. 3 concerns a permanently used private dwelling, the penalty is imprisonment from one year to ten years.
A serious provision indeed.
We think you will agree, dear reader, that the way an ordinary person without legal training understands the law can differ fundamentally from the way lawyers read the very same provisions. That is what this article is about. Some may find the story amusing. For our clients, however, there was little to laugh about.
In early spring, a young woman came to our law firm — let us call her Darja. She was accompanied by her mother. Darja had received a letter from the court, and after reading it, both she and her mother felt not just fear but sheer horror. Both were in tears and deeply upset. This was no ordinary letter: it was an indictment (Anklageschrift) charging Darja under § 244 StGB with aggravated theft with weapons and breaking into premises. It should be said that a conviction under § 244 StGB would be entered under exactly this heading in the Federal Central Criminal Register (Bundeszentralregister) — and, since a prison sentence is always included, in the certificate of good conduct (Führungszeugnis) as well. What could that mean? A great deal. Try finding a job or getting a place at a school with a “blemish” like that — we can assure you there would be no shortage of problems.
The indictment stated that Darja was accused of committing aggravated theft from a shop while carrying a weapon or another dangerous object capable of harming the health of others. In more detail, the grounds of the charge stated that at the beginning of the year Darja had taken items in an H&M store, put them in her bag and tried to leave without paying. The damage to the store amounted to 85 euros. When the store detective stopped her, the police were called and she was searched. The search turned up… a pair of nail scissors (an everyday object such as nail scissors can indeed be classified by lawyers as a dangerous object).
Darja herself was frightened by the letter, but at first she did not want to say anything. Eventually, the lawyer managed to get her talking. In a quiet voice, nervous and embarrassed, she explained that she was training as a beautician at a college, doing an Ausbildung (vocational training), and had very little money. She had indeed been in the store and taken some items — a few tops and blouses she liked very much. In the fitting room, she used her nail scissors to cut off the security tags, the plastic anti-theft devices that many stores attach to their goods, put the items in her bag and tried to leave the store. But the detective stopped her and asked her to come to the office. There he told her to take the items out of her bag. When she did, he examined them and asked what she had used to cut off the plastic tags. She admitted the theft and took out the nail scissors. A policewoman who arrived at the detective’s call searched her, because the detective suspected she might have hidden something else on her. Nothing else was found. A report was then drawn up, which she signed. She was asked to pay for the items, which she did, and was allowed to go home with them. At home she said nothing to her mother, and only confessed when the letter from the court arrived. Why had she done it? She could not answer — it was, as they say, a moment of madness.
The lawyer could see from her eyes that, although she was very frightened, she did not fully grasp the seriousness of her situation. Perhaps she had been misled by friends who assured her it was just simple theft and everything would be fine, since she had paid for the goods. In any case, until she met the lawyer, Darja had no clear idea of what the consequences of her act might be. Only when the lawyer explained the provision she was charged under, the penalty it carries, the possible consequences and how it differs from simple theft did both women become truly frightened. Of course, the lawyer had no intention of scaring his clients. What mattered to him was that Darja understood how serious the situation was and did not come across as careless in the upcoming trial. For our readers’ information: simple theft under § 242 StGB is punishable by a fine or imprisonment of up to five years. § 244 StGB, the provision Darja was charged under, does not provide for a fine. It provides for imprisonment from six months to ten years; in a less serious case (minder schwerer Fall, § 244 Abs. 3 StGB), from three months to five years.
Obviously, Darja had no weapon. But she did have… nail scissors, which can quite easily be counted among dangerous objects capable of endangering life and health. According to case law and the prevailing view among lawyers, “dangerous tools” include objects which, by their nature and in view of how they might be used in a given case, are capable of causing considerable injury to others. In other words, in legal terms almost any household item can qualify as a dangerous object — knives, scissors, glass, saws, axes, hammers, needles, dogs and much more. In short, anything that can cut, pry open or injure. If the court took a strict view of whether nail scissors qualify, or of whether they were ready for use, the sentence could be harsh. If, however, the charge could be re-qualified from § 244 to § 242 StGB — simple theft (an acquittal was out of the question, since she had confessed from the very beginning) — the case might really end with a fine. The conviction would still be recorded in the Bundeszentralregister, but as a rule a first conviction to a fine of no more than 90 daily rates (Tagessätze) does not appear in the standard Führungszeugnis (§ 32 Abs. 2 Nr. 5 BZRG). For employers and schools, she would then count as having no criminal record.
Once instructed by the clients, the lawyer requested access to the case file. After receiving the file (Akte) and studying it carefully, he set about “fishing out” any information that could work in his client’s favor. The file contained the statement of a single witness — the store detective, who had stopped the client, taken her to the office for a search and found the items with the plastic security tags cut off. The young woman had admitted what she had done. When he asked what she had used to cut the tags off, she showed him the nail scissors.
That was clearly not enough. The lawyer then did a truly enormous amount of work, studying case law and legal commentary on what counts as a “dangerous tool”. His task was to try to rebut either the classification of nail scissors as a “dangerous tool” or the element of “carrying” it (bei sich führen). After studying the case law and the legal literature, he concluded that the first could not be rebutted: scissors, whether nail scissors or ordinary ones, are in any case a pointed object and fall into the category of “dangerous tools capable of endangering life and health”. That left the second element — “carrying”. What does this term mean? To “carry” an object means to have it in a pocket or a bag, or to wear it around one’s neck, on one’s wrist, and so on. The lawyer had to find the line that would make it possible to argue that his client had not “carried” the scissors in this sense. His persistence paid off: one of the many decisions of the Federal Court of Justice (Bundesgerichtshof, BGH) he had studied fit our case. In that decision, the BGH acquitted a defendant of attempted armed robbery because the trial established that the weapon — a knife — had been in the defendant’s backpack at the time of the attempted robbery; in other words, the “weapon or other dangerous tool” lacked the element of being “ready for use”.
The lawyer invited the clients for another meeting. This time he questioned Darja in great detail about where the scissors had been, how she had taken them out, where she had put them afterwards and where they were at the moment the store detective stopped her. Together they worked out a strategy for the trial. Denying everything made no sense, since there was a report she had signed and a witness statement. She would testify, but clearly, confidently and without getting confused. She would state that the scissors had been in a manicure set, the manicure set in a cosmetics pouch, and the pouch in her bag. She had to be prepared for the court to ask questions in search of contradictions: where were they at first, how and when did she take them out, when and where did she put them back, did she take them out again later? The young woman listened carefully and memorized everything.
Right before the hearing, the lawyer went through every point with Darja once more, reminding her that a great deal would now depend on her testimony, and that he would try to speak with the judge and the prosecution before the hearing began. He approached the judge and asked for a legal discussion (Rechtsgespräch) before the hearing to discuss the legal classification of the offense. The judge agreed that this was the key issue of the charge, but suggested first establishing all the facts at the hearing and only then deciding on the classification.
The parties were called into the courtroom (Darja’s mother had also wanted to attend, but at the last moment her nerves gave way and she stayed in the corridor to wait for the verdict). After the case was called and the formalities completed, the court established that the defendant would testify (the lawyer had advised his client not to say anything unnecessary, only to confess and wait for the court’s questions). It must be said that the young woman followed the lawyer’s instructions to the letter. Answering the court’s questions, she described what kind of bag she had, what was in it, what her cosmetics pouch and manicure set looked like and where the scissors had been. The court satisfied itself that the defendant’s bag closed with a zip and that the zip had been closed. There were attempts to catch her out in contradictions, but her answers were sensible, clear and consistent — just as she had discussed with the lawyer. The store detective and the police officer were examined as witnesses. The police officer could tell the court nothing useful: when the police arrived, everything — the bag, the items, the scissors — was already lying on the table, which in itself worked in Darja’s favor. The detective’s testimony was more detailed: he had watched her, stopped her and found the items with the security tags cut off. Asked by the court “Where were the scissors?”, he replied that the defendant had taken them out at his request; before that, they had been in her cosmetics pouch. This testimony confirmed Darja’s account. Seeing that nothing more could be gained from the witnesses, the judge turned to Darja and told her that she had committed an aggravated offense and that the issue now was not a fine but imprisonment. Fear appeared in the young woman’s eyes once again.
The court then proposed a short recess and asked everyone to leave the courtroom except the lawyer and the representative of the public prosecutor’s office (Staatsanwaltschaft). During this legal discussion, the judge stated that he agreed with the lawyer: the elements of carrying a dangerous tool were not established. This was a victory — the court had to accept that there was no basis for a conviction under § 244 StGB. The judge may still have had doubts, but doubts are not evidence. The court agreed to re-qualify the offense as simple theft. All that remained was to discuss the amount of the fine. The lawyer pointed out that the young woman was still in training and therefore had a small income. The court agreed to set the fine at… 300 euros. The judge then called everyone back into the courtroom and pronounced the verdict: Darja was found guilty of simple theft and sentenced to a fine of 300 euros. This meant that she remained free; the conviction would not appear in her Führungszeugnis, and for employers, schools and everyone around her she counts as having no criminal record.
Behind this verdict lay an enormous amount of work by the lawyer, and it was rewarded as it deserved: peace of mind and confidence in the future were restored to the clients. We hope that Darja, too, has learned a lesson for the rest of her life, having experienced first-hand how a single thoughtless act can change one’s life.
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