Arson Defense in Germany

Under German criminal law, arson means unlawfully setting fire to certain types of property, or destroying them wholly or partly by fire. German courts take a precise view of what “setting fire to” (Inbrandsetzen) requires. It is not enough for an object to be scorched or charred: the fire must have taken hold in a way that allows it to keep burning on its own, without anyone doing anything further. A wooden door that is only singed, with no further spread, may be criminal damage (Sachbeschädigung) rather than arson. For buildings, an essential part of the structure, such as the roof timbers or load-bearing walls, must catch fire, not just the furnishings. The law also covers cases where setting a fire destroys the property wholly or partly.

The term “building” (Gebäude) is interpreted broadly. It covers any freestanding structure connected to the ground that people can enter, from a family home to a site container.

Whose property it is also matters. Simple arson under Section 306 of the German Criminal Code (Strafgesetzbuch, StGB) only covers property that belongs to someone else. Aggravated arson under Section 306a StGB does not depend on ownership: it covers buildings that serve as dwellings, whoever owns them. Setting fire to property you own can therefore still be aggravated arson.

Sections 306 to 306c StGB set out a graded system: the greater the danger the fire poses to human life, the higher the penalty. Every intentional form of arson carries a prison sentence of at least one year. This makes them felonies (Verbrechen) under German law, which has two practical consequences: an attempt is always punishable, and several of the procedural options for ending a case early are not available.

Simple Arson (Section 306 StGB)

Simple arson covers setting fire to, or destroying by fire, property belonging to someone else in one of the following categories: buildings or huts; business premises or technical equipment, in particular machinery; warehouses or stored goods; motor vehicles, rail vehicles, aircraft, or watercraft; forests, heaths, or moors; and agricultural, food-production, or forestry facilities and products. The penalty is one to ten years in prison. In less serious cases, the court can impose a sentence of six months to five years instead.

Aggravated Arson (Section 306a StGB)

Aggravated arson applies where the property set on fire is a place where people may be present. This includes buildings, ships, huts, or other premises that people live in; churches and other buildings used for religious worship; and premises where people spend time temporarily, such as schools, at a time when people are usually there. No one has to actually be inside at the time. The law treats the risk to human life as inherent in setting fire to these places.

Section 306a(2) StGB extends aggravated arson to any of the property covered by simple arson where the fire puts another person in actual danger of harm to their health.

Aggravated arson carries a minimum sentence of one year and a maximum of 15 years. In less serious cases, the range is six months to five years, and arguing that a case falls into this category can change the outcome considerably.

Especially Aggravated Arson (Section 306b StGB)

Where arson under Section 306 or 306a StGB causes serious harm to another person’s health, or harms the health of a large number of people, the minimum sentence for especially aggravated arson rises to two years.

In cases of aggravated arson under Section 306a StGB, the minimum is five years if the offender:

• puts another person in danger of death,
• acts with the intention of enabling or concealing another offense, or
• prevents the fire from being put out or makes this more difficult.

Arson Resulting in Death (Section 306c StGB)

If arson results in another person’s death, the penalty is life imprisonment or a prison sentence of at least ten years. The offender must have caused the death at least recklessly (leichtfertig). Whether that is the case depends on the facts, including the intention behind the act, how the fire started, and what kind of building was involved.

If you are facing an arson allegation, contact our criminal defense lawyers as early as possible. The sooner we are involved, the more options the defense has.

Carelessness alone can lead to a criminal conviction. Under Section 306d StGB, negligent arson carries a fine or a prison sentence of up to five years. If both the fire itself and the resulting danger to another person’s health were caused negligently, the maximum is three years. Typical situations include a candle or cigarette left unattended, careless use of a barbecue, faulty electrical work, or welding without adequate safety precautions.

The line between negligence and intent is often the central issue in an arson case. Intent does not require that you wanted the fire: it is enough if you recognized the risk of a fire and accepted it. Because this turns on what can be proven about your state of mind, the way the evidence is presented frequently decides which offense applies.

A related offense, causing a fire hazard (Section 306f StGB), applies even where no fire breaks out. It covers putting certain property belonging to someone else at risk of fire, for example by smoking or throwing away a lit cigarette near a forest, cultivated field, or fire-prone business premises. The penalty is a fine or up to three years in prison, or up to one year if the person acted negligently.

Yes, in many cases. Under Section 306e StGB, if you voluntarily put out the fire before substantial damage occurs, the court can reduce the sentence in cases of simple, aggravated, or especially aggravated arson, or decide not to impose a penalty under the arson provisions at all. Both options are at the court’s discretion, and neither applies to arson resulting in death. A penalty under other provisions may still be possible.

For negligent arson, the rule goes further: anyone who voluntarily puts out the fire before substantial damage occurs is not punished for negligent arson at all.

“Voluntarily” means acting on your own initiative, not, for example, because the fire service is already on its way. Remorse expressed after the event does not qualify. Where the fire is put out by someone else, such as neighbors or the fire service, before substantial damage occurs, a voluntary and serious effort on your part to put it out is enough. Courts have generally treated damage of around EUR 2,500 as substantial, so acting quickly matters.

Yes. Arson allegations often go hand in hand with an allegation of insurance misuse (Versicherungsmissbrauch) under Section 265 StGB. This offense covers damaging or destroying insured property, including by fire, in order to obtain an insurance payment for yourself or someone else. It carries a fine or up to three years in prison, and an attempt is punishable. If the fire is then reported to the insurer as an accident and a claim is made, the case can also involve fraud (Betrug) under Section 263 StGB, which takes priority over Section 265. Setting fire to property of significant value in order to stage an insurance claim is one of the examples the law lists of an especially serious case of fraud, with a penalty of six months to ten years in prison.

The insurance offense is added to the arson charge, not substituted for it. Fires are difficult to control, and if a fire set for an insurance claim spreads to an occupied building or injures someone, the person responsible faces the full penalties for aggravated or especially aggravated arson. One of the factors that raises aggravated arson to especially aggravated arson, with a minimum sentence of five years, is acting with the intention of enabling another offense. Where a fire was set to support an insurance claim, prosecutors can rely on this to argue for the higher penalty range.

If a fire is under investigation while an insurance claim is open, how you describe the cause of the fire to your insurer can create criminal liability of its own. Knowingly false statements about the cause are fraud, even if you did not start the fire. Businesses in particular should take legal advice before filing or amending a claim.

If you are accused of arson, say nothing about the allegation until you have spoken to a criminal defense lawyer. How you respond in the first days can shape the rest of the case. The police or the public prosecutor’s office (Staatsanwaltschaft) will usually want to question you early. As the accused, you have the right to remain silent about the allegation and the right to speak to a lawyer of your choice at any time, including before any questioning. You are required to give your personal details, such as your name and address, but nothing beyond that. Use your right to remain silent until you have spoken to a criminal defense lawyer. This applies even if you had nothing to do with the fire: misunderstandings, statements made without knowledge of the investigation file, and details given in an unfamiliar language can all cause problems later and are difficult to take back.

If you do not speak German well, you have the right to an interpreter free of charge throughout the criminal proceedings, and usually to a written translation of key documents such as an arrest warrant or indictment. Do not agree to make a statement in German, or in English to an officer whose English is limited, just to get the interview over with.

If the police search your home or business premises, ask to see the search warrant, do not obstruct the search, and make a note of what happens, including who was present and what was taken. Do not sign any written record of an interview or search before your lawyer has reviewed it.

At the same time, secure anything that may help your defense: photographs of the scene where you can lawfully access it, messages, receipts, or other records showing where you were, technical documents such as maintenance or inspection records, and the names of potential witnesses.

An arson investigation can lead to pretrial detention (Untersuchungshaft). A court can order it where there is strong suspicion of the offense and a specific ground for detention, such as a risk, assessed on the facts of the individual case, that the accused will evade the proceedings. For especially aggravated arson and arson resulting in death, the law allows pretrial detention even without such a ground. This makes early involvement of a defense lawyer particularly important.

If you are arrested, you must be brought before a judge without delay, and at the latest on the day after your arrest. The judge decides whether you remain in custody. You have the right to inform a relative or someone you trust, and if you are a foreign national, you can ask for your consulate to be informed. If the judge orders pretrial detention, it can be challenged, and our lawyers can apply for a detention review.

If you are not a German citizen, the consequences of an arson case can go beyond the criminal sentence. A conviction for an intentional offense can create a public interest in expelling you from Germany (Ausweisungsinteresse) under the German Residence Act (Aufenthaltsgesetz, AufenthG), and the law treats that interest as serious or particularly serious depending on the sentence. Even a sentence at the lower end of the range for intentional arson can be enough to make expulsion a real possibility.

A conviction can also affect your residence permit. Issuing or extending a residence permit, and issuing a permanent residence permit (Niederlassungserlaubnis), generally requires that there is no public interest in expulsion, so a conviction can stand in the way of both. Naturalization generally requires that the applicant has not been convicted of a criminal offense, so a conviction can also stand in the way of becoming a German citizen. EU citizens and their family members have stronger protection: a conviction alone is not enough to end their right to live in Germany, and the authorities must show that their personal conduct poses a present and sufficiently serious threat to public order.

For this reason, the criminal and immigration sides of the case need to be considered together from the start. Which offense a case ends with, the length of any sentence, and whether the proceedings can be closed without a conviction can all make a decisive difference to your residence status. A conviction for negligent rather than intentional arson, for example, can have very different immigration consequences. Where this is at stake, our criminal defense lawyers work with our immigration lawyers so that the defense strategy accounts for both.

Arson cases call for legal expertise and a quick response. At Schlun & Elseven Rechtsanwälte, our criminal defense lawyers have many years of experience defending clients against arson allegations. We request access to the investigation file, review the documents and evidence, and examine the findings on how the fire started. Our lawyers combine an understanding of fire cause investigation with in-depth knowledge of the case law of Germany’s highest courts, including the Federal Court of Justice (Bundesgerichtshof).

We represent clients throughout Germany and clients who are abroad when proceedings begin, handling as much of the case remotely as the proceedings allow, and we advise in English. We also have experience in cases that attract media attention, where protecting our client’s reputation is part of the defense.

If you are under investigation for arson, or expect to be, contact us for an initial assessment of your situation. We treat every inquiry confidentially, and our cost structure is transparent from the start.