The Legal Definition of Arson in Germany
Arson generally involves the destruction of property and under German law, the destruction of property is deemed to be a criminal offence. § 305 StGB (Strafgesetzbuch – German Criminal Code) states:
(1) Whoever unlawfully destroys, in whole or in part, a building, ship, bridge, dam, a constructed road, a railway or another edifice belonging to another incurs a penalty of imprisonment for a term not exceeding five years or a fine.
(2) The attempt is punishable.
Arson is defined under § 306 StGB where it states the following:
(1) Whoever sets fire to or by setting fire to them destroys, in whole or in part:
- buildings or huts,
- plants or technical facilities, in particular machines,
- warehouses or stored goods,
- motor vehicles, railway vehicles, aircraft or watercrafts
- forests, heaths or moors,
- agricultural, food or forestry facilities or products
belonging to another incurs a penalty of imprisonment for a term of between one year and 10 years.
(2) In less serious cases, the penalty is imprisonment for a term of between six months and five years.
By law a building is defined as a structure bounded by walls and roof and connected to the ground, which is intended and suitable for the habitation of humans. On the other hand: a hut is defined as an immovable structure that is firmly connected to the ground and cannot be regarded as a building for lack of size, strength and durability.
As can be seen here even the attempt at destruction of property can result in criminal sanctions. Of course, arson is not limited to merely the destruction of arson. The offence of aggravated arson provides greater insight into more serious cases where injury or death of other people can occur.
Aggravated Arson Under German Law
Moving beyond cases involving the damage of property to cases that place the lives of others in danger, we need to look at the law relating to aggravated arson. Aggravated arson and “especially” aggravated arson are legislated for under § 306a and § 306b StGB with aggravated arson carrying a prison sentence of not less than one year whereas especially aggravated arson carries a sentence of not less than five years. Under § 306a the definition of aggravated arson is:
(1) Whoever sets fire to or by setting fire to them destroys, in whole or in part,
- a building, ship, hut or other premises which serve to accommodate people,
- a church or other building which serves the practice of religion,
- premises which serve to temporarily accommodate people, at a time when people are usually in those premises,
As can be seen in these cases there is an element of looking to harm other people directly. The fact that these premises serve to accommodate other people increases the risk involved with the action taken.
“Especially aggravated arson” under § 306b carries an even stricter sentence. As stated above, being found guilty of such an offence leads to sentencing of not less than five years. In practice such rulings can lead to imprisonment of up to 15 years. Especially aggravated arson is found under 306b StGB and it states:
(1) Whoever, by committing arson within the meaning of section 306 or 306a, causes serious damage to another person’s health or damage to a large number of people’s health incurs a penalty of imprisonment for a term of at least two years.
(2) The penalty is imprisonment for a term of at least five years if… the offender
- places another person in danger of death by committing the offence,
- acts with the intention of facilitating or covering up another offence or
- prevents the fire from being extinguished or makes extinguishing the fire more difficult.
If you are accused of aggravated or especially aggravated arson, it is crucial to consult with a lawyer. Having this charge reduced to a “less serious” offence can lead to a major change in the sentencing.
Death Caused by Arson
Cases involving the act of arson causing death carry a sentence of no less than 10 years in prison under § 306c StGB. Life imprisonment is also considered in such cases based on the facts of the case. Capital offences in Germany carry serious sentences but in such cases the facts of the matter must also be looked at in more detail. The intent behind the action, the way the fire broke out, the type of building that was set on fire and much more must be examined in such cases. It will be examined as to whether the death of the individual was foreseeable in such a case.
If you are facing such a situation, please contact our legal team as soon as possible. Working with an experienced legal professional is crucial in such cases.
Extinguishing the Fire / Active Remorse
§ 306e StGB allows for some leniency to be granted during sentencing if the accused extinguished the fire before it caused too much damage. Such leniency is voluntary on the part of the court and does not need to be granted. In such cases, the active remorse shown must translate into actions on the part of the accused. Therefore, being remorseful after the fact will not be sufficient. This line of argument is available should the person have acted at the time to extinguish the fire and did so before the damage was caused. This extinguishing of the fire should be a voluntary act and not one forced on them by pressure from others. Should this be involved in your case, it may ensure that your sentencing is mitigated and may even prevent sanctions being placed on you!
Actively working with a third party to extinguish the fire can also be viewed as active remorse.
Other Arson Offences
Negligence in the case of arson can also lead to a criminal conviction. This provided for under § 306d StGB and depending on the seriousness of the case it can lead to sentences of up to five years. This is likely in cases involving convictions concerning negligence leading to aggravated arson.
Causing a fire hazard carries a sentencing of up to three years under § 306f StGB. Causing a fire hazard is defined as:
Whoever, by smoking, using an open fire or light, by throwing away burning or smouldering objects or by other means, causes a risk of fire in another person’s
- easily flammable operations or facilities,
- agricultural or food facilities or operations in which their products are stored,
- forests, heaths or moors or
- cultivated fields or easily flammable agricultural produce which is stored in fields
Negligence in this case can see a sentence of up to one year. Whether your actions endangered another person’s health or life will also be considered during the decisions made on this matter.
Another arson offence comes in the shape of intensifying a fire – you may not have started the fire, but your actions have contributed to an increase in its intensity. Once again, the facts of such a case will be examined. Where and how the fire took place will be looked at as well as whether your actions lead to the death or injury of another person.
Arson and Insurance Fraud
Fraud is a criminal offence under § 263 StGB and insurance fraud is also provided for under § 265 StGB. insurance fraud is defined as the following:
(1) Whoever damages, destroys, impairs the usefulness of, disposes of or gives to another an object which is insured against destruction, damage, impairment of use, loss or theft in order to obtain for themselves or a third party payment from the insurance incurs a penalty of imprisonment for a term not exceeding three years or a fine, unless the offence is subject to a penalty under § 263 StGB.
(2) The attempt is punishable.
If as a company you are worried about making an insurance claim due to the possibility of potential charges of insurance fraud, please contact our legal team so that they can analyse your case in more detail. Insurance fraud based on arson can be damaging to the reputation of a company and therefore it is advisable to be certain in your application rather than risk the fallout of not carrying out the required due diligence.
Carrying out arson for the purposes of insurance fraud is high-risk. Fires are hard to control and it is difficult to know how damaging a fire will be in advance. Therefore, it is worth remembering that should such a fire does lead to actions consistent with aggravated arson, especially aggravated arson or even the deaths of individuals, the sentencing will not be limited to the three years stated above. Instead the people responsible will be charged with the crime itself and the fraudulent nature of their intent will be taken into account at the trial.
Accusations of Arson: How to Respond
Should you find yourself in a situation where you are accused of arson it is important to know how to respond. The authorities will seek to speak with you about the issues and during this time you should not provide them with details until you have a lawyer by your side. An experienced criminal lawyer will outline to you your rights and also will have professional knowledge of what to say and what not to say at this point. Even if you have had nothing to do with the case it is important to discuss the issues with a lawyer in advance. Misinterpretations, miscommunication or statements which have not been thought through in advance can lead to problems further down the line.
Once you have contacted our criminal law team our lawyers will analyse the documents and evidence relating to the case. They will work with you in formulating a strategy and together construct your defence. Success in such cases can vary from a full acquittal to reduced or suspended sentences. Having an experienced legal representative in your corner increases the likelihood of success being achieved in your case.