Embezzlement as a Public Official in Germany | Legal Defence

Embezzlement by a public official in Germany is governed by § 246 German Criminal Code (StGB), which regulates the general offence of embezzlement in Germany. There is no special standard that is exclusively tailored to embezzlement in office. Instead, the general provision is applied to the specific circumstances of the office, supplemented by other criminal and disciplinary provisions.

In Germany, embezzlement by a public official is distinguished from simple embezzlement by the public official’s special position of trust. This position of trust is particularly emphasised by the office held by the accused. In addition, public officials will regularly fulfil the qualifying characteristic of ‘entrusted property’, so they commit embezzlement with an increased penalty under § 246 (2) StGB. Entrusted property is a property that the offender has obtained from the owner or a third party with the obligation to use it for a specific purpose, to store it, or even just to return it.

Furthermore, embezzlement by a public official may result in an aggravated penalty following § 353b StGB (violation of official secrecy and a special duty of confidentiality) or the additional application of § 47 German Act regulating the Status of Civil Servants in the Federal States, BeamtStG, (failure to fulfil duties). The offences may also result in additional disciplinary responsibility, § 47(3) BeamtStG. According to § 24 BeamtStG, even the loss of civil servant rights is possible, so the conviction can lead to the cancellation of the civil servant status. This means that no further public office can be held.

According to German law, under § 246 (1) StGB, anyone who unlawfully appropriates another person’s movable property for themselves or a third party is liable to prosecution. In the case of public officials, the retention of budget funds and other monies and the misuse of procurement and supply contracts play a significant role. The embezzlement of evidence by a police officer or material resources (including office supplies) can also give rise to corresponding criminal liability.

Practically relevant acts that often lead to the accusation of embezzlement by a public official without actually giving rise to criminal liability include

• accidental removal of official items,
• use of material resources with authorisation,
• lack of knowledge of entrustment,
• use of leftover items (officially written off or released for disposal).

In each case, the details of the offence are essential to achieve the lowest possible sentence or even to avoid criminal liability altogether. Proof of intent and proof of knowledge of entrustment are decisive in criminal proceedings – without intent, there is no criminal liability for embezzlement. In the absence of proof of knowledge of the characteristic of entrustment, the offence of simple embezzlement can only be punished following § 246 (1) StGB, which provides for a significantly more lenient range of punishment.

Embezzlement by a public official must always be considered in the context of other criminal offences in Germany. § 246 StGB only applies if the offence is not punishable by a more severe penalty under other provisions. Therefore, the court will first have to examine and rule out other property offences based on the allegation before a conviction for embezzlement can be considered.

Offences that are very similar to embezzlement in office are particularly relevant. These include, first and foremost, acceptance of benefits, bribery and breach of trust. According to § 331 StGB, acceptance of benefits exists if a public official demands, is promised, or accepts benefits for themselves or a third party. This can even be assumed if someone expresses their gratitude through gifts – ‘for good cooperation’. Such acceptance of benefits is not punishable if the acceptance of the gifts is authorised in advance or if notification of the receipt of benefits is made immediately and acceptance is subsequently authorised. Corruptibility (bribery) within § 332 StGB refers to a situation in which a public official demands, is promised or accepts benefits for themselves or a third party in return for carrying out an official act.

A special and distinguishing feature of embezzlement compared to misappropriation is the duty to look after assets. This presupposes a fiduciary relationship whose essential and typical task is to look after the assets of others and which is characterised by the duty holder’s personal responsibility and independence. There is also an enormous similarity to embezzlement in office, which is why a precise analysis of the allegations made is necessary to avoid the enormously aggravated penalty of embezzlement under § 266 StGB.

Embezzlement by a public official can be punished in Germany with a prison sentence of up to five years or a fine. If the offence is not classified as embezzlement but as a breach of trust following § 266 StGB, this can result in prison sentences of up to 10 years.

Our German criminal defence lawyers offer comprehensive support for defendants suspected of embezzlement in office. Firstly, we check whether the essential characteristics of embezzlement are fulfilled. The question often arises as to whether an unlawful appropriation has occurred and whether the property was actually ‘entrusted’. In many cases, the accusation is based on circumstantial evidence or unclear witness statements. We analyse whether the evidence is sufficient and whether there are contradictions.

It is crucial for public officials to avoid damaging public attention. We endeavour to conduct the proceedings as discreetly as possible and avoid unnecessary publicity. If a conviction is likely, we will ensure that the sentence is reduced or that alternative sanctions, such as a fine, are considered. We will also discuss the possibility of a plea bargain with the court and the public prosecutor’s office.

Cases of embezzlement by a public official can have political implications, notably if the person concerned held a position of influence or the allegations of embezzlement were made in the context of political discontent. Since embezzlement in office is a criminal offence in most legal systems, it may constitute grounds for extradition. If the offence has undermined the trust of a public institution, has attracted media attention and involves substantial sums of money, it can be assumed that there is a high willingness to extradite. 

In the case of allegations of embezzlement by a public official, it is not only criminal and professional consequences that must be considered. If you have been convicted of embezzlement in another country or if there are proceedings against you for embezzlement in office in another country, it is crucial for you to prevent extradition to that country by lodging an appropriate appeal. If you have been convicted in Germany or there are currently proceedings against you before a German court for embezzlement in public office, it is also advantageous to use a team of lawyers to examine and, if possible, avert any extradition requests. Our German extradition lawyers will stand firmly by your side to defend your rights and interests.