Warenbetrug: what penalty you face after a report from an online sale

Under § 263 Abs. 1 StGB, a person commits an offence where, with the intention of obtaining for themselves or for a third party an unlawful pecuniary benefit, they damage another person's assets by creating or maintaining a mistaken belief through pretending that false facts are true or through distorting or suppressing true facts. An attempt is punishable as well (§ 263 Abs. 2 StGB). An offence is attempted where a person, according to their own conception of the offence, takes an immediate step towards realising the statutory definition (§ 22 StGB); an attempt may be punished more leniently (§ 23 Abs. 2 StGB in Verbindung mit § 49 Abs. 1 StGB).

Where small amounts are involved, one provision is important that is easily overlooked: § 263 Abs. 4 StGB declares § 248a StGB, among others, to be applicable accordingly. Where the offence concerns an item of low value, it is under that provision prosecuted only on application, unless the prosecuting authority intervenes of its own motion because of the special public interest. The statute does not name which value counts as low.

§ 263 Abs. 3 Satz 2 StGB names five standard examples. Under it, a particularly serious case is as a rule present where the offender acts on a commercial basis or as a member of a gang that has joined together for the continued commission of forgery of documents or of Betrug (number 1), where they cause a loss of assets of large extent or intend to expose a large number of people to the risk of losing assets (number 2), or where they bring another person into economic hardship (number 3). Numbers 4 and 5 concern public officials and faked insurance claims.

In reports arising from online trade, number 1 above all comes into consideration, by way of the element of acting on a commercial basis. Whether several sales are to be assessed as a continuing source of income is a matter of evaluation that is not decided by the number of reports alone.

Three distinctions are to be borne in mind alongside.

• Unterschlagung. Whoever unlawfully appropriates a movable item belonging to another for themselves or for a third party is punished with imprisonment of up to three years or with a fine, where the act does not carry a heavier penalty under other provisions (§ 246 Abs. 1 StGB). Where the item was entrusted to them, for example goods held on commission, the range reaches up to five years (§ 246 Abs. 2 StGB).
• Hehlerei. Whoever buys, procures, disposes of or helps to dispose of an item that another person has obtained through an unlawful act directed against another's assets, in order to enrich themselves or a third party, is punished with imprisonment of up to five years or with a fine (§ 259 Abs. 1 StGB).
• Falsification of data relevant as evidence. Whoever, in order to deceive in legal dealings, stores or alters data relevant as evidence in such a way that on being perceived they would amount to a forged or falsified document, or uses such data, is punished with imprisonment of up to five years or with a fine (§ 269 Abs. 1 StGB). An invented dispatch receipt can fall under this; whether it does depends on which data were stored or altered and who appears from them as the issuer.

For Betrug under § 263 Abs. 1 StGB the limitation period is five years, because the offence carries a maximum of more than one year and up to five years of imprisonment (§ 78 Abs. 3 Nr. 4 StGB). What governs is the penalty threatened, without regard to increases for particularly serious cases (§ 78 Abs. 4 StGB); the period begins when the offence is completed (§ 78a Satz 1 StGB). A period you have calculated yourself is of only limited help, because investigative acts can interrupt its running. The details are in the guide on limitation in criminal law.

I did not deliver the goods because I was broke. Is that a Betrug? Not automatically. § 263 StGB requires intent and an intention to obtain a benefit; negligent conduct carries no penalty (§ 15 StGB). What is decisive is what you intended when the transaction was concluded.

Do I have to comment on the report? No. At the start of the examination you must be informed that you are free to comment on the allegation or not to make a statement on the matter, and that you may at any time, including before the examination, consult a defence lawyer of your own choosing (§ 136 Abs. 1 Satz 2 StPO).

Does anything change if several buyers have made reports? Several reports do not automatically lead to a particularly serious case. They can, however, trigger an examination of whether the person acted on a commercial basis under § 263 Abs. 3 Satz 2 Nr. 1 StGB.

The amount was very small. Does that matter? Yes, at one particular point. § 263 Abs. 4 StGB declares § 248a StGB to be applicable accordingly; in the case of items of low value the offence is prosecuted only on application, unless the prosecuting authority intervenes of its own motion because of the special public interest.