The Offence of Embezzlement in Germany
The object of an embezzlement offence is another person’s movable property, i.e. it must not be the sole property of the offender. In order to determine whether embezzlement has really taken place, it is, therefore, necessary to clarify the ownership of the object concerned at the time of the act. The determination may cause difficulties under certain circumstances so that the assistance of a lawyer is recommended.
The offence of embezzlement is an unlawful appropriation of another’s movable property. An act of misappropriation in this sense occurs when the offender performs an act in which their intention to misappropriate is objectively manifested. This means that the perpetrator’s act indicates the will to displace the owner from their position (expropriation) and to annex the thing or its value at least temporarily to the offender’s own property or that of a third party (appropriation). This is usually done by establishing possession or custody.
However, the appropriation is not unlawful if there is a due and undisputed claim to transfer of the thing. Even in the case of a legal right to realise the thing – e.g. from § 1228 BGB or § 371 paras. 1 p. 1 HGB (commercial right of retention) – unlawfulness is ruled out. Of course, it is also not a case of misappropriation if the owner or the person entitled to dispose of the property acts with his or her consent. This is usually the case when goods are sold to a reseller under retention of title.
Negligent action is also not punishable. In this case, however, there may be civil law claims against the person acting, such as the owner’s claim for restitution under § 985 German Civil Code (BGB).
Embezzlement by way of misappropriation, § 146 (2) StGB
Embezzlement by way of misappropriation is somewhat more serious than simple embezzlement and is therefore also punishable by a higher penalty. It is a qualification, as the offender embezzles a thing entrusted to them. In this context, a thing is entrusted to a person if they have been granted dominion over the thing with the obligation to return it or to use it for a certain purpose in the sense of the entrusting person (BGH, judgment of 13.3.1956 – 2 StR 70/56; judgement of 17.10.1961 – 1 StR 382/61).
For example, a thing is entrusted to someone if it is borrowed, rented or leased. Items given into safekeeping or purchased under reservation of title are also to be included. It should be noted here that a thing may also be entrusted if it is handed over for a prohibited or immoral purpose.
Embezzlement and Other Property Offences
Embezzlement is one of the property offences, as are, in particular, theft (§ 242 StGB) and fraud (§ 263 StGB). However, embezzlement is a catch-all offence that is subsidiary to other offences. This means that it only applies if other provisions, such as theft, robbery or embezzlement, do not make the offence punishable by a more severe penalty (cf. § 246 (1), last half-sentence, StGB).
According to § 242 StGB, theft is committed by anyone who takes another person’s movable property with the intention of unlawfully appropriating it for himself or herself or for a third person. In the case of theft, therefore, unlike embezzlement, a removal takes place, i.e. the custody of another person must be broken and one’s own custody must be established.
The difference is illustrated in particular by the example of misappropriation of found property. If someone finds a lost object and keeps it, this is misappropriation. However, in this case no theft is committed. The lost property was already de facto ownerless, so that it was not taken away. In addition, embezzlement occurs, for example, if a loan is intentionally not returned to the borrower. In this case, too, it is not a case of theft because it has not been taken away.
Prosecution and Sentencing of Embezzlement in Germany
Standard embezzlement in Germany is punishable by imprisonment of up to three years or a fine. If it is a case of embezzlement, i.e. if the embezzled property was entrusted to the perpetrator, a custodial sentence of up to five years or a fine can be imposed. The specific penalty is largely determined by the circumstances of the individual case. In particular, the value of the misappropriated property, previous convictions and any restitution are considered.
In order to keep the penalty as low as possible, an experienced criminal defence lawyer should be consulted as early as possible. In particular, your defence lawyer can avoid an entry in the criminal record. Such an entry is only made in the case of a custodial sentence of three months or more and a fine of more than 90 daily rates.
In principle, embezzlement is a so-called official offence. This means that an offence is prosecuted ex officio. However, a criminal complaint is required for prosecution if the embezzlement is committed against a relative, guardian or custodian or if the injured party and the offender live together in a domestic community (§ 247 StGB). Embezzlement of low-value property also requires a criminal complaint (§ 248a StGB). The value limit is between 25 and 50 euros.
Furthermore, it should be noted that criminal proceedings are inadmissible if the offence is time-barred. The statute of limitations for simple embezzlement is three years (§ 78, para. 3, no. 5 StGB) and the statute of limitations for misappropriation is five years (§ 78, para. 3, no. 4 StGB).