Definition and legal definition of embezzlement
Die Embezzlement is a criminally relevant conduct that typically belongs to the group of property offenses. In Germany, it is regulated in the Criminal Code (StGB). Embezzlement describes the unlawful appropriation of another person’s movable property by a person who already has actual control (so-called possession) over this item, but is not the owner. Embezzlement therefore particularly differs from theft, where the perpetrator does not possess the item but only acquires it through taking.
Legal definition
The criminal offense of embezzlement is codified in § 246 StGB. According to the wording of the law, anyone who unlawfully appropriates another person’s movable property for themselves or a third party is liable to prosecution.
Elements of the offense of embezzlement
Object of the offense: Another’s movable item
The object of embezzlement can be any tangible item that is movable and owned by someone else (thus ‘another’s’ property). It should be noted that real estate, animals (with special regulations under the BGB), or data are not objects of embezzlement within the meaning of § 246 StGB.
Perpetrator groups and possession relationships
Any person who already has possession of another’s property can be a perpetrator of embezzlement. The key distinction from theft is that, in theft, the perpetrator did not have legitimate possession, and in robbery, possession is obtained through violence or threat. In embezzlement, already legitimate or at least actual possession is converted into the intent for unlawful appropriation.
Qualification: Breach of trust embezzlement
What is considered particularly serious is the so-called breach of trust embezzlement (§ 246 para. 2 StGB), if the item was entrusted to the perpetrator, i.e., handed over to them with the expectation of a specific use (e.g., as a loan, for safekeeping, rental). The legislature considers the violation of a special trust relationship to be an aggravating factor for punishment.
Actus reus: Unlawful appropriation
The actus reus consists in the appropriation of the item against the will of the owner. Unlawful appropriation means that the perpetrator objectively acts like an owner and subjectively intends to permanently appropriate the item for themselves or a third party. The crucial point is that the former owner is permanently deprived of their ownership position.
Distinction from mere use
Not every use or excessive exploitation meets the criteria for embezzlement. What is regularly required is a so-called intent to dispossess and appropriate. Sometimes this can be inferred from the perpetrator’s overall conduct, such as reselling the item or transferring it for their own benefit.
Intent
Embezzlement is an intentional offense. The perpetrator must be aware of the unlawfulness of their conduct, as well as the fact that the item is not theirs, recognize the situation of possession, and at least accept the appropriation.
Legal distinction from other property offenses
Distinction from theft (§ 242 StGB)
Unlike theft, in the case of embezzlement the perpetrator must already be in possession of the item. While theft is based on the removal of someone else’s item, the embezzler abuses their existing possession to appropriate the property.
Distinction from fraud (§ 263 StGB)
Embezzlement does not require an act of deception towards the owner of the item; by contrast, in fraud the perpetrator obtains a financial advantage through deception.
Distinction from breach of trust (§ 266 StGB)
Breach of trust is an independent property offense, which typically requires that the perpetrator violates a duty of financial care in a special position of trust. However, breach of trust embezzlement can overlap with breach of trust if the conduct involves entrusted assets.
Penalties and legal consequences of embezzlement
Range of penalties
The basic form of embezzlement is punished with imprisonment of up to three years or with a fine. In the case of breach of trust embezzlement, the penalty increases to imprisonment of up to five years or a fine.
Sentencing
For sentencing, the value of the embezzled item, the extent of the breach of trust, and the damage caused are particularly important. Return and restitution can be considered as mitigating factors.
Attempt and completion
Attempted embezzlement is not punishable (§ 246 para. 3 StGB). The offense is completed as soon as the perpetrator objectively and subjectively appropriates the item unlawfully for themselves or a third party.
Criminal law significance and examples
In practice, embezzlement is widely applied, particularly in the context of private loan arrangements, rental relationships, safekeeping, or in the professional sphere, such as when employees retain or resell their employer’s property.
Typical examples:
- Someone who finds a wallet takes it and keeps it instead of handing it in.
- A tenant removes furniture from the rented apartment and transfers it into their own possession.
- An employee sells tools belonging to their employer for their own benefit.
Limitation period for embezzlement
The limitation period in Germany is governed by § 78 para. 3 no. 4 StGB and is generally three years from the commission of the offense. In particularly serious cases, such as breach of trust embezzlement, longer periods may apply.
Embezzlement in an international context
This offense also exists in other legal systems, with similar features. In the Austrian Criminal Code, it is defined as a separate category (§ 133 StGB); in Switzerland as misappropriation (§ 138 StGB).
Conclusion
Embezzlement is a central property offense in German criminal law and is characterized by the unlawful appropriation of another person’s movable property already in one’s possession. It protects the right of ownership as well as existing possession and trust relationships. Distinguishing it from related offenses such as theft, fraud or breach of trust is essential for accurate legal classification. The statutory penalties take into account the value of the item and the degree of trust violation, with entrusted embezzlement in particular constituting a serious misconduct in legal dealings.
Frequently Asked Questions
How is embezzlement prosecuted under criminal law?
The criminal prosecution of embezzlement is governed by the provisions of the Criminal Code, in particular § 246 StGB. As a rule, the investigation begins with a criminal complaint, either by the victim or another person with knowledge of the crime. Upon receiving the complaint, the police, under the direction of the public prosecutor, examine whether there is an initial suspicion. As part of the investigation, evidence is collected, for example through questioning witnesses, seizing relevant objects, or reviewing files and documents. If the facts of the case are sufficiently established and there is sufficient suspicion, the public prosecutor files charges with the competent criminal court. The accused will then have the opportunity to comment and may, if necessary, be held accountable in a main hearing before the court. If it turns out that no criminal conduct has occurred, the proceedings will be discontinued; otherwise, if convicted, a penalty will be imposed.
What penalties can be imposed upon conviction for embezzlement?
In the event of a conviction for embezzlement under § 246 StGB, the perpetrator faces a fine or imprisonment of up to three years. The specific penalty depends on the gravity of the offense, the degree of culpability, and any previous convictions. If ‘breach of trust embezzlement’ (§ 246 para. 2 StGB) applies, for example if the perpetrator obtained the item through a special position of trust (e.g., as trustee or guardian), the law provides for an increased penalty: imprisonment of up to five years or a fine. In especially severe cases, and where further aggravating circumstances exist, the penalty can, in individual cases, go beyond this, particularly if combined with other criminal offenses such as fraud.
Is there a difference between embezzlement and theft in legal terms?
Yes, from a legal perspective, embezzlement and theft differ particularly with regard to how the property or possession of the item is treated. In theft (§ 242 StGB), the perpetrator takes someone else’s movable item against or without the will of the rightful owner. Embezzlement presupposes that the perpetrator is already in possession or co-possession of the other person’s property and now unlawfully retains or appropriates it, even though there is a duty to return it or no right to dispose of it. Another distinguishing criterion is the absence of breaking custody: unlike in theft, embezzlement does not involve breaching another’s custody, but rather the abusive use of an entrusted item.
What role does proof of intent play in embezzlement?
Proof of intent is an essential prerequisite for criminal liability in embezzlement. This means that the perpetrator must know and want to unlawfully use an item entrusted to them for themselves or a third party, even though they are not entitled to appropriate it. Negligent conduct, such as inadvertently passing on or unintentionally retaining another’s property, does not fulfill the offense of embezzlement. In the investigation and court proceedings, the public prosecutor must therefore provide concrete evidence or indications supporting the accused’s intent, for example, from witness statements, correspondence, or the perpetrator’s conduct after the offense.
How can an accused person defend themselves against the allegation of embezzlement?
In the course of criminal investigation and proceedings, an accused has various options for defense. They can, for instance, deny having embezzled another’s property by proving that the item actually belonged to them or that there was a legal claim to appropriate it. The absence of intent can also serve as a defense line—for example, if it can credibly be shown that the item was kept unintentionally. Additionally, consensual agreements about use or effective consent of the rightful owner may be invoked. Another argument can be the low value of the item, which may reduce the penalty. It is generally advisable to seek legal counsel at an early stage to develop the best defense strategy and avoid mistakes in the investigation.
How does the subsequent return of the embezzled item affect the criminal proceedings?
The subsequent return of the embezzled item can have a mitigating effect on sentencing within criminal proceedings, especially in regard to sentencing under § 46 StGB (Sentencing). While return does not, as a rule, eliminate criminal liability itself—since the offense is already complete through commission—it can be considered as a sign of remorse and restitution. As a result, the court may impose a more lenient sentence or, in the case of minor offenses, may discontinue proceedings under § 153 StPO. Full exemption from criminal liability is, however, only possible in rare exceptional cases, for example in the context of offender-victim reconciliation.
Is embezzlement also punishable in a business context?
Embezzlement also frequently occurs in business and corporate environments and is equally punishable there. Employees, managing directors, or other persons who, in the course of their function, are entrusted with assets, goods or money and unlawfully use them for themselves are criminally liable. In such cases, breach of trust embezzlement (§ 246 para. 2 StGB) often applies, which entails a higher penalty if the item was handed over due to a special position of trust (e.g., as authorized signatory, warehouse manager or treasurer). Companies may, under certain circumstances, participate in criminal proceedings as co-plaintiffs and also assert civil claims for compensation against the perpetrator.
