Theft and Robbery

If you are accused of theft, robbery, or a related property crime, the legal classification is often determined by a small part of the incident. It may involve merchandise in a store, a cell phone, a wallet, a vehicle, or items from an apartment. Particular risks arise when multiple people were involved, when violence was used or a threat was made—or when a knife, tool, or other object was carried.

The key factors in this regard are, above all, possession, intent to appropriate the property, the plan for the crime, or the timing and purpose of any act of violence. An allegation of theft can become robbery, robbery with theft, or robbery with extortion; a burglary may constitute standard examples under § 243 of the German Criminal Code (StGB) or meet the criteria for aggravated offenses under §§ 244 and 244a StGB. In addition, trespassing, property damage, assault, embezzlement, or handling stolen goods may also be applicable.

As a defendant, you may (and should) remain silent regarding the matter pursuant to § 136 of the Code of Criminal Procedure (StPO) and retain a defense attorney even before questioning begins; § 137 of the Code of Criminal Procedure (StPO) guarantees the right to be defended by an attorney at every stage of the proceedings. The attorney will first review the allegations based on the contents of the case file—e.g., statements, video recordings, seized items, and evidence.

An Overview of the Topics

Theft — Possession and Intent to Appropriate

Section 242 of the German Criminal Code (StGB) requires the taking of another person’s movable property with the intent to unlawfully appropriate it for oneself or a third party. Who had custody of the property, and when and how was that custody breached?

Equally important is the intent to appropriate the property. Mere removal or temporary use is not sufficient in every situation. In the case of a cell phone, it may depend on whether the device was intended to be kept, sold, used as leverage, or merely withheld from the rightful owner. A subsequent return does not preclude an intent that existed at the time of removal—conversely, the loss of an item does not substitute for proof of the underlying intent.

Without evidence of removal or intent to appropriate, theft cannot be established under any circumstances.

Aggravated Theft — Burglary, Safeguards, and Qualifications

Section 243 of the German Criminal Code (StGB) lists examples of particularly serious cases: breaking into or entering certain premises, using false keys, overcoming special security measures, and acting for commercial gain. Section 244 of the German Criminal Code (StGB), on the other hand, covers so-called aggravating factors: theft committed with weapons or other dangerous tools, gang theft, and residential burglary. In cases of burglary, it must therefore be precisely determined whether a business premises, a residence, or a permanently occupied private residence was involved; the manner of entry and the purpose of the stay are also relevant.

When it comes to bypassing security measures, their specific function is decisive—a locked container, a security label, and a technical lock are not assessed in the same way. When carrying an object pursuant to Section 244(1)(1) of the German Criminal Code (StGB), one must determine what the object objectively represents, who had access to it, and at what stage of the offense it was present; for other tools, the law additionally requires a specific intent to use them.

Robbery and Extortion — Violence, Threats, and Loot

Section 249 of the German Criminal Code (StGB) links the taking of property to the use of force against a person or to a threat posing an imminent danger to life or limb. Therefore, not every theft involving a dispute or physical contact constitutes robbery: The means of coercion must, according to the plan of the crime, serve specifically to enable the taking of property or to prevent resistance. Since the basic offense already provides for a minimum prison sentence of one year, a great deal hinges on this connection.

In the case of a threat, it is not solely the wording of what is said that matters. Gestures, the display of an object, or the overall situation can also convey a threat. What matters is the nature of the harm being announced, whether there appears to be an imminent danger to life or limb, and whether the statement is linked to the financial benefit sought. A vague act of intimidation does not necessarily meet these criteria.

Extortion with the intent to rob, as defined in Sections 253 and 255 of the German Criminal Code (StGB), lists the same aggravating means of coercion but is aimed at an act, acquiescence, or omission that causes financial harm. The distinction from § 249 of the German Criminal Code (StGB) depends primarily on the outward appearance of the financial encroachment: Does the perpetrator take the property away themselves, or is the victim forced to cooperate in a way that affects their financial interests?

Aggravated robbery and robbery with violence

Section 250 of the German Criminal Code (StGB) imposes harsher legal consequences for robbery: when weapons or dangerous instruments are carried or used; when certain other means are employed; when the crime is committed as part of a gang; and when there is a serious risk to health or a risk of death.

An object that is objectively harmless may become relevant if, according to the plan for the crime, it is intended to be used as a threat. Conversely, not every object found at the scene of the crime constitutes a violation of § 250 of the German Criminal Code (StGB): The nature of the object, its accessibility, the knowledge of those involved, and its actual use must be clarified. What was in the jacket pocket and what the other participants knew about it is therefore a separate question of evidence.

Section 252 of the German Criminal Code (StGB) concerns robbery. In this context, violence or threats are not used to facilitate the initial taking of property, but rather to retain possession of property that has already been stolen after the perpetrator has been caught in the act. The moment of the change in possession and the purpose of the subsequent action are key—a person who breaks free to escape is not necessarily acting to secure the loot.

If several persons are involved, it must be determined separately for each person what their plan of action was, what contribution they made, and whether aggravating circumstances can be attributed to them. Mere joint presence is not, by itself, sufficient to establish complicity under § 25(2) of the German Criminal Code (StGB).

Related Offenses — Embezzlement, Receiving Stolen Goods, and Trespassing

Not every unlawful appropriation constitutes theft. Section 246 of the German Criminal Code (StGB) pertains to embezzlement and does not require removal—the provision applies when an item was initially obtained lawfully or without a breach of custody, and an unlawful appropriation is alleged only later. Disputes typically arise over items that have been borrowed, found, or held in joint custody.

Section 259 of the German Criminal Code (StGB) covers the handling of property that another person has stolen or obtained through another property-related offense: purchase, procurement, sale, or aiding in the sale with the intent to enrich oneself. However, a conspicuously low price or an unclear origin does not prove the required intent—what must be examined is the knowledge and understanding at the time of acquisition or transfer. And whoever committed the predicate offense themselves is not their own receiver with respect to that same item.

Section 123 of the German Criminal Code (StGB) may apply if business premises, residences, or private properties are unlawfully entered, or if a person remains on the premises without authorization despite being asked to leave. In cases of burglary, damage to property under § 303 StGB may apply; in cases of altercations, offenses involving bodily injury or coercion may apply; and in cases where proceeds of the crime are subsequently secured, aiding and abetting under § 257 StGB may apply.

Evidence — Recordings, Identification, and Seizure

Video recordings document the sequence of events but show only a limited portion of them. Perspective, frame rate, lighting, obstruction, timestamps, and the absence of audio all affect the evidence’s probative value. A recording may show a person and an action without proving intent to appropriate, a plan for the crime, or knowledge of a carried item—the three elements that determine whether a crime has been committed.

In the case of witness testimony and identifications, the conditions under which the observation was made, the time elapsed, and prior exposure to photographs are all important factors. The Federal Court of Justice requires a careful assessment of the identification; due to its suggestive effect, the initial identification based on a single photograph generally has less probative value. If a witness was shown a photograph in advance, this therefore constitutes a separate point of review.

Seized clothing, cell phones, tools, or found items may help establish ownership. Under Section 94 of the Code of Criminal Procedure (StPO), items that may be relevant as evidence may be seized and, if not voluntarily surrendered, confiscated. However, the discovery of an item on a person does not prove either a prior act of taking, the nature of the person’s involvement, or intent.