Concept and Definition of Fencing
Fencing is a central concept in German criminal law, concerning the illegal utilization and redirection of assets obtained through a criminal act. The aim of the criminal provision is both to prevent the continued illegal use of a stolen or otherwise unlawfully acquired good and to avert the risks to legal commerce associated with the original crime. The relevant legal basis is found in Section 259 of the German Criminal Code (StGB).
Statutory Regulation According to Section 259 StGB
According to Section 259 (1) StGB, anyone who buys, procures for themselves or a third party, sells, or assists in the selling of an item that another has obtained through an unlawful act against another’s property, with the intention of enriching themselves or a third party, is liable to prosecution for fencing. Thus, the legislator covers various forms of dealing with property acquired through a criminal offense.
Elements of the Offense of Fencing
Fencing consists of several objective and subjective elements of the offense.
Objective Elements
Prior Offense
A prerequisite for fencing is a so-called prior offense through which the item was obtained. This must be an unlawful act directed against another’s property, such as theft (Section 242 StGB), robbery (Section 249 StGB), fraud (Section 263 StGB), or embezzlement (Section 246 StGB). The object of fencing must be directly linked to the unlawful prior offense.
Fencing Actions
The criminally relevant act can take one of the following forms:
- Buying: Acquisition of actual control over the item in exchange for payment.
- Self-Procurement: Obtaining one’s own, independent control over the item without necessary consideration.
- Selling: Promoting resale or utilization in one’s own or someone else’s name.
- Assisting in Selling: Supporting the prior offender in selling the item to a third party.
The object of fencing must be tangible (e.g., movable items, cartons of cigarettes, vehicles), although in exceptional cases, rights may also be recognized as suitable objects of the offense.
Subjective Elements
Intent regarding all objective elements is required. The offender must know the item originates from an unlawful prior offense and must pursue an intention to gain, which can be for oneself or for another.
Distinction from Other Offenses
A clear distinction must be made to Aiding and Abetting the Prior Offense, to Embezzlement as well as to Possession Offenses When the acquirer of the item is the same person who obtained it through the prior offense (identity between prior offender and fence), criminal liability for fencing is excluded, as the statute technically requires a third-party involvement.
Threat of Punishment and Legal Consequences
For fencing, the law generally provides for a prison sentence of up to five years or a monetary fine. In especially serious cases under Section 260 StGB, e.g., when committed on a commercial basis or as a gang, the penalty range increases to a prison sentence of six months to ten years. In addition to the main penalty, measures such as confiscation of the object and civil claims for damages and return may be imposed under civil damages law.
Attempt and Completion
Under Section 259 (2) StGB, the attempt to commit fencing is also punishable. An attempt particularly occurs when preparatory acts to procure or utilize the stolen goods have already been undertaken, but the actual act of acquisition has not yet been completed.
Special Aspects and Relevant Constellations
Fencing Ring
The organization of fencing in criminal associations or gangs is punished particularly severely, as is participation in organized distribution systems, such as in the international motor vehicle or art trade.
Money Laundering and Fencing
The boundaries between fencing and money laundering (Section 261 StGB) are fluid. While fencing focuses on physical items, money laundering primarily addresses the processes involving assets obtained unlawfully and their introduction into the legal economy.
Restitution Claims and Protection of the Owner
Victims of theft or other property offenses have civil law claims against fences and acquirers for surrender or return of the item, regardless of criminal consequences, pursuant to the provisions of the German Civil Code (§§ 985 et seq. BGB).
Limitation Period
The prosecution of fencing is subject to the general statutes of limitations. The standard limitation period is five years (Section 78 (3) no. 4 StGB). In serious cases, the limitation period is extended accordingly with the penalty range.
Significance in Business and Everyday Life
Fencing is not only of great practical relevance in the context of classic property offenses, but also has significant importance regarding works of art, antiques, vehicles, jewelry, and electronics. It also plays a considerable role in the context of organized crime, such as the international trade in stolen cultural goods.
International Aspects
Forms of fencing are also prosecuted as criminal offenses at the Union level. There are international agreements and mechanisms for cooperation to combat property offenses and fencing activities. Many neighboring countries have similar offense requirements and penalties.
Literature
- Fischer, Strafgesetzbuch, Commentary, § 259 StGB
- Schönke/Schröder, Strafgesetzbuch, Commentary
- Kindhäuser/Neumann/Paeffgen, Nomos Commentary, StGB
This encyclopedia article provides a comprehensive and detailed overview of the concept of fencing under German law and examines all relevant aspects for a deeper understanding and practical classification within criminal law systems.
Frequently Asked Questions
What penalties apply upon conviction for fencing?
Upon conviction for fencing under German criminal law, Section 259 StGB provides for a fine or imprisonment of up to five years. In especially serious cases, Section 260 StGB provides for imprisonment from six months up to ten years. An especially serious case, for example, exists if the fencing is committed on a commercial scale or as a gang member. For repeated offenses, significant value of the obtained items, or the use of dangerous means, the court can impose a correspondingly higher sentence. Additionally, secondary penalties such as a professional ban or confiscation of items obtained through fencing may be imposed. The specific penalty depends on the individual case and the circumstances of the offense, for example, whether the fencing was planned and the extent of the illegal business.
Is the purchase of fenced goods always punishable, even if the buyer was unaware of the illegal origin?
No, criminal liability for fencing requires that the buyer knows the goods are from an unlawful prior offense or at least accepts this possibility (intent). Someone who acquires an item without knowledge that it was obtained by crime is not criminally liable. However, according to case law, so-called conditional intent is sufficient; that is, if the buyer seriously considers that the item may be from a crime and accepts this risk. Duties of care can also play a role: if the buyer deliberately ignores or overlooks obvious clues, criminal liability may nevertheless arise.
Is attempted fencing already punishable?
Yes, under Section 259 (2) StGB, attempted fencing is also punishable. This means that even offering, concealing, disposing of, or procuring an unlawfully obtained item with intent, even if unsuccessful, can lead to prosecution. The penalty for the attempt is determined under Sections 23 and 49 StGB and is usually less severe than for a completed offense. The specific sanction depends on the stage of the act and the individual circumstances.
Can a company or legal entity also be prosecuted for fencing?
Under German criminal law, criminal liability is primarily directed at natural persons. Legal entities, such as companies, are not themselves criminally liable. However, responsible individuals within a company, such as managing directors or senior employees, may be prosecuted if they were actively involved in fencing or knowingly tolerated it. In addition, under the Administrative Offenses Act (OWiG), particularly Sections 30 and 130 OWiG, substantial fines can be imposed on companies if managerial personnel enable or fail to prevent crimes such as fencing.
What evidence is required for a conviction for fencing?
For a conviction for fencing, the law enforcement authorities must prove that the defendant knowingly accepted the illegal origin of the goods and engaged in one of the actions specified in the law (such as buying, selling, procuring, disposing, concealing, or utilizing). Evidence includes witness statements, documents (e.g., purchase agreements, invoices), expert reports, investigation records, technical evidence (such as fingerprints, surveillance videos), and electronic communications (e.g., emails, messenger logs). It is especially important that intent (knowledge of the prior offense) can be proven, which places high requirements on evidence in criminal proceedings.
What role does the value of fenced goods play in sentencing?
The value of the fenced goods can be decisive in individual cases for sentencing. A high value of the item can be considered an aggravating factor and may lead to the classification of a particularly serious case under Section 260 StGB. This is especially relevant if the fencing was carried out commercially or as part of a gang, or if the acquired goods have significant material value. For goods of low value, the court may decide leniently and, in especially minor cases, discontinue prosecution or impose only a small fine.
Is the offense of fencing subject to a limitation period and if so, after what period?
Yes, the offense of fencing is also subject to a limitation period. The regular limitation period is five years according to Section 78 (3) no. 4 StGB. Limitation means that after this period, prosecution is no longer possible. For especially serious cases or activities within organized crime, longer limitation periods may apply. The limitation period begins with the completion of the offense, i.e., upon acquisition or sale of the fenced goods. Under certain circumstances, such as interruption actions (e.g., searches, indictment), the limitation period can be extended.
