Caught shoplifting in Germany: the penalty and what happens next

§ 242 Abs. 1 StGB (Abs. is the German abbreviation for the subsection of a provision) covers anyone who takes movable property belonging to another away from that other person with the intention of unlawfully appropriating it for themselves or for a third party. In shoplifting, the decisive moment is not the till but the moment at which the goods go into your own bag or under your jacket. This is why being stopped inside the shop can already amount to a completed theft.

Two provisions alongside it matter for the classification.

§ 248a StGB provides that theft and misappropriation of items of low value are prosecuted only on application. The statute names no euro amount for this. Where the threshold of low value lies is decided by the courts; there are no reliable figures from the statute here. In practice § 248a StGB means this: with small values, a formal application for prosecution (Strafantrag) is needed, or an assumption that there is a special public interest in prosecution. Whether such an application is made is for the shop to decide. This is a condition of prosecution and not a route for ending proceedings that are already running: if the application is missing and the public prosecution office assumes no special public interest, there may be no prosecution in the first place.

§ 243 StGB governs particularly serious cases of theft, with a sentencing range of three months to ten years. Under the standard examples this includes, among other things, commercial conduct. § 243 Abs. 2 StGB does, however, make clear that a particularly serious case in the cases of subsection 1 sentence 2 numbers 1 to 6 is ruled out where the offence relates to an item of low value. More serious still is § 244 StGB, which with six months to ten years covers, among other things, theft while carrying a weapon and theft as a member of a gang. For a typical shoplifting case § 244 StGB plays no part; it becomes relevant if someone is carrying a knife, for example, or if several people act together according to a plan.

Anyone who does not take an item away but unlawfully appropriates an item they have already obtained falls under § 246 StGB, misappropriation, with imprisonment of up to three years or a fine.

The shop reports the matter, the police record it and pass it on to the public prosecution office. After that there are essentially three directions.

If the investigation provides sufficient grounds for bringing a public charge, the public prosecution office brings it under § 170 Abs. 1 StPO by way of an indictment. Otherwise it discontinues the proceedings under § 170 Abs. 2 StPO and notifies the accused person of this, provided that person has been questioned as such or an arrest warrant had been issued against them.

Alongside these there are two discontinuations on grounds of expediency. Under § 153 Abs. 1 Satz 1 StPO the public prosecution office may, in the case of an offence at the lower level of seriousness, refrain from prosecution with the consent of the court if the guilt would be minor and there is no public interest in prosecution.

Sentence 2 of the same provision withdraws that requirement of consent again, and for shoplifting that is the more important sentence: the consent of the court is not required for an offence that does not carry a raised minimum penalty and where the consequences caused by the offence are minor. Theft under § 242 StGB has no raised minimum penalty. If the consequences of the offence are minor as well, the public prosecution office decides on its own. Whether that is the case is for the office to assess; the provision creates no entitlement.

Under § 153a Abs. 1 StPO it may, with the consent of the court and of the accused person, provisionally refrain from bringing a charge and impose conditions, for example a payment to a charitable institution or work for the community. It sets a time limit for compliance, which depending on the condition is a maximum of six months or a maximum of one year. If the accused person complies with the conditions and directions, the offence can no longer be prosecuted as an offence at the lower level of seriousness.

There is no entitlement to either of these discontinuations. How a public prosecution office will decide cannot be promised in advance.

The shop's invoice for a processing fee or a Fangprämie, the flat fee a shop charges for catching someone, is not a penalty. It is a civil law claim and is dealt with separately from the criminal proceedings. There is no statutory flat rate; whether and in what amount such a claim is justified is decided by the civil courts if it is disputed. Do not pay without checking, simply because the letter looks like official post, and do not agree to a claim while the criminal proceedings are running without having discussed that first.

A ban from the premises (Hausverbot) is likewise civil law and can be issued regardless of the outcome of the criminal proceedings.

Your employer does not automatically learn of a pending investigation. The position is different in certain professions with particular reporting and reliability duties, and where the offence has a connection to the employment relationship. If you work in retail or need an official permit, raise this point early.