In the meantime, there is hardly a social problem to which politicians are reacting by tightening up criminal law. The new orientation is not to ask about the causes, but to threaten with the criminal code. Crime has been used by politics for voter favor, for the preservation of power, and by the media for consumer approval.
Both politics and the media play the balls, the game is built up spectacular individual cases. Public excitement leads to a sharpening of political rhetoric, which is followed by the expansion of surveillance, criminal control even in cases of suspicion and the punishing state as the guardian of law and order.
The area in which the punishing state has been providing particularly tragic continuity for decades is the punishment of petty crimes committed by poorer people.
The poverty offence of shoplifting is looked at in more detail below and also how it is punished.
Shoplifting occurs whenever someone takes a good without wanting to pay for it. The classic of land theft is the insertion of goods and the immediate exit of the business. The thief does not even have to leave the checkout area, it may be sufficient for the theft if the goods are still hidden in the store in the handbag or in the clothes. This concealment of the goods is formally called that the object is moved into a “detention enclave(link is external),” namely to the point of being transported to the most personal sphere that the theft has already been fulfilled. The only decisive factor, then, is that the goods have been taken out of the custody of the shopkeeper and it is not necessarily important to leave the shop.
Penalties for shoplifting
The penalty for shoplifting is governed by Section 242 of the Criminal Code (link is external) and ranges from a fine to five years in prison. As a rule, a first offender does not have to expect a prison sentence, which in particular threatens repeat offenders.
Serious cases of shoplifting
If the stolen goods were or are particularly secured against removal and the perpetrator has broken into the shop, this is a particularly serious case of theft. No more fines are possible here, there is always a risk of imprisonment of at least three months up to ten years in prison. If the offender has carried a weapon or dangerous tool, the sentence is even at least six months in prison.
The predatory theft (Section 252 of the Criminal Code (link is external)) is one of the most serious forms of theft. Predatory theft occurs whenever the perpetrator uses force in a shoplifting incident, when he is caught by the department store detective, for example.B, and then violently defends himself or threatens him in order to escape with the stolen goods. Here the sentence begins with one year in prison. If a weapon was present, the minimum sentence is five years.
Small limit for shoplifting
The vernacular always brings the small limit into play in the case of shoplifting, meaning a so-called ‘low value limit’. This limit is not regulated by law and is around EUR 50.00. A thief who steals goods worth less than €50.00 does not necessarily have to be punished for shoplifting. In the case of theft of low-value items, it is necessary for the shopkeeper to make a formal criminal complaint. This is also done in the vast majority of cases. The small limit usually does not help to avoid a penalty.
In practice, this can be the case: in the penalty order issued at the request of the Dortmund Public Prosecutor’s Office, “the 24-year-old Nigerian citizen was fined 20 daily rates of 10.00 euros (=200.00 euros) for stealing low-value items and the costs of the proceedings (here: 70.00) were imposed. Because he stole goods worth EUR 25.81 from the expenses of Aldi GmbH and put this in his pocket with the intention of unpaid take-away”.
Such penalties are intended to deter the other young refugees in the city – the standard requirement under the Asylum Seeker Benefits Act (AsylbLG) was 135.00 euros per month.
Catch premium for shoplifting
Some department stores require the shoplifter to pay a catch premium. The case-law considers that such a catch premium is, in principle, admissible if it does not exceed the amount of up to EUR 50.00 and the premium is actually paid to the shop detective. From a legal point of view, this is a form of compensation.
House ban for shoplifting
Most of the time, the shoplifter is also banned from the shop, as well as a house ban. For this purpose, the shop detectives must be authorized by the shop keeper. As a rule, the house ban is imposed on all branches of the store chain and is often limited to one year. Violation of an effective house ban can also constitute a breach of house peace (Section 123 of the Criminal Code (link is external)) and thus a new offence.
The well-known case of Ms M.
When the old woman was pushed to the dock in her wheelchair, her sixth offence was to be heard. She was alleged to have stolen powder, eyelash ink, hair clips, cleansing cream and cream stiffener worth less than 20 euros. She did not steal, the 85-year-old woman assured, as in previous trials, she said: “I did this because otherwise I would have been starved.”
At that time, her income, including the widow’s pension, amounted to 725 euros per month, and she had not applied for the basic security.
The first time she was stolen, she was caught filling goulash from the meat counter into a freezer bag. After the fifth offence, she was sent to prison for the first time in October 2017. In August 2018, the competent district court sentenced Ms. M. to four months in prison , without parole. The defense said the verdict was too harsh for a woman her age, too lenient for a repeat offender, prosecutors said, and both sides appealed.
The Memmingen District Court ultimately dismissed both views as unfounded and the woman had to be detained again.
If Ms M. had still applied for the basic security under SGB XII, she would now receive EUR 432 per month in accordance with the standard rate - whether she can thereby make a living in this manner is likely to be very questionable.
The value attached to the fundamental right to the protection of property and the fundamental right to guarantee a decent subsistence minimum in our society is not questionable. In Article 14 of the Basic Law (Link is external), the Basic Law protects property as a fundamental right, the fundamental right to guarantee a decent subsistence minimum under Art. 1 sec. 1 GG (Link is external) in conjunction with the welfare state principle of Art. 20 sec. 1 GG (Link is external) guarantees to each person in need of assistance the material conditions that are necessary for his physical existence and for a minimum degree of participation in the social cultural and political life are essential.
While the violation of property rights is punished with draconian penalties, the million-fold violation of the fundamental right to guarantee a decent subsistence minimum *is not punished at all.