written and translated by Ali Tahir Sen

The withdrawal from the attempt and the robbery are highly relevant areas of criminal law for the exam. On the basis of the decision of the Federal Supreme Court of 24 November 2021 (4 StR 345/21) on the judgement of the Münster Regional Court of 26 May 2021 (22 KLs-61 Js 3088/20-5/21), we delve into both (1) attempted robbery and finally (2) withdrawal, whereby the focus here is on the failure of the attempt.

A. Circumstances

In order to finance his daily drug consumption, T decides one evening, after consuming eight or nine bottles of beer and up to a maximum two grammes of cocaine, to go to the 82-year-old O, intimidate him by holding out a 30-centimetre-long knife and thereby take money and valuables without any resistance. As he has known O since childhood, he does not want to use the knife beyond a mere threat and masks himself with a black tube scarf and a black cap in order to remain unrecognised. Only his eyes are visible.

At about 11 p.m., T reaches O’s house, which is about 150 metres away, and rings the doorbell while standing directly in front of the front door with the knife in his hand. O opens the door and grabs the knife, which is about twenty centimetres away from him, with his right hand before T can speak or act. As a result, O suffers a bleeding cut approximately two centimetres long in the palm of his hand between his thumb and index finger.

Although O does not recognise T because of his mask, he shouts loudly “I know you! There’s nothing to get here!” and attempts to unmask him. T retreats, but manages to adjust his cap and scarf and to take the knife from O without further injury.

Latest here T recognises the injury of O. Although he had thought it was possible that O would injure himself during the act, he had not wanted to and possibly trusted that this would not happen. He is aware that he is physically superior to the considerably older O and could have continued to physically overpower him, especially with the the knife. However, he is also aware that, as a result of O’s determined resistance, he cannot achieve his goal – obtaining money or valuables – without using further means of coercion that go beyond a threat. O’s spontaneous and determined resistance took him by surprise and he trusted from the outset that the clearly older O would be compliant out of panic and fear. However, the use of force to the detriment of O with the possible consequence of an injury is still ruled out for T. This is “definitely too extreme” for him. He does not want to use the knife in an actively injurious way to enable the taking away of money or valuables. Injuring O, whom he has known for years, with a targeted stab or cut is out of the question for him. In addition, at this moment, in view of O’s exclamation, he considers it at least possible that O has recognised him because he has been unmasked. T flees.

Note: T’s culpability was affirmed on the basis of an expert opinion. The expert opinion found a dissocial personality disorder, but this did not fulfil the criterion of a “severe other mental disorder”. There were no indications for the criteria of “pathological mental disorder” and “reduced intelligence”. Overall, in the absence of an entry criterion within the meaning of §§ 20, 21 of the Criminal Code, it was to be assumed that the person had retained full culpability at the time of the offence.

B. Court proceedings

In its judgment of 26 May 2021 (22 KLs-61 Js 3088/20-5/21), the Münster Regional Court sentenced T to a three-year imprisonment term for attempted particularly aggravated robbery (§§ 249 I, 250 II no. 1, 22, 23 I German Criminal Code, StGB) and negligent bodily harm (§§ 223 I, 229, 230 StGB) in unity of offence (§ 52 StGB) and ordered the defendant to be placed in a rehabilitation institution. In his appeal, T complained of a violation of substantive law. By order of 24.11.2021 (4 StR 345/21), (a) the judgment of the Regional Court was set aside and (b) the case was remanded to another criminal division of the Regional Court for a new hearing and decision. A further judgement is still pending.

C. Criminal liability of T according to §§ 249 I, 250 II No. 1, 22, 23 I StGB

Criminal liability according to §§ 249 I, 250 II No. 1, 22, 23 I StGB can be examined according to the following scheme:

0. Preliminary examination
   1. Non-completion of the act
   2. Criminality of the attempt
1. Intent to commit a crime
   1. Third-party movable object
   2. Taking away
      16. Distinction from predatory extortion (§§ 253, 255 StGB)
   3. Use of a qualified means of coercion
      1. Violence against a person or
      2. Threats of present danger to life or limb
   4. Connection between coercion and taking away
   5. Qualification: § 250 II no. 1 StGB
      1. Weapon & dangerous tool
      2. Use
   6. Intent of unlawful appropriation
      1. Intent to expropriate
      2. Intention to acquire
      3. Illegality
      4. Intent with regard to illegality
   7. Interim result
2. Approach
   16. Approach in “doorstep cases”
3. Illegality
4. Debt
5. Grounds for exclusion and annulment of sentences (here: resignation according to § 24 I 1 Alt. 1 StGB)
   1. No failed attempt
      16. Relevant time and horizon of the determination of the failure
   2. Distinction between terminated/unterminated attempt (here: unterminated attempt)
   3. Voluntary abandonment of further execution of the offence
6. Criminal complaint, further requirements/obstacles to prosecution (if applicable)

0.Preliminary examination

The offence is not completed if a constituent element of the objective offence is not fulfilled. In the present case, T could not take the money and valuables, could not fulfil all the elements of the offence and thus could not complete the crime. The attempt of aggravated robbery is punishable according to §§ 250 I, 12 I, 23 I StGB.

I. Intent to commit a crime

1. Taking away a third-party movable object

In order to finance his drug consumption, T wanted to take money and valuables from O. This would have to be a third-party movable object and T would have to have the intention to take it away. Both the money embodied in banknotes and the valuables are physical objects and thus things in the sense of § 90 of the German Civil Code (BGB).

Things are movable if they can actually be moved. This is the case with banknotes and coins. In the present case, it is not specified in detail which valuables T wanted to take, but it can be assumed – based on a true-to-life interpretation of the facts – that the objects he wanted to take and remove are movable.

An object is third-party to the offender if, at the time of the commission of the offence, it is in the sole, co- or joint ownership of another natural or legal person and the offender does not thereby acquire ownership, but not if it is ownerless or incapable of ownership. Both the money and the valuables are not the property of the T, so that they are foreign to him.

The banknotes, coins and valuables are therefore foreign movable things.

T would have had the intention to take them away. Taking away means breaking someone else’s custody and establishing new custody, not necessarily the offender’s own, without or against the will of the previous custodian.

Custody is the actual dominion over an object, taking into account the perception of the market, which is borne by a natural will to dominate. In principle, actual domination exists if there are no obstacles to the direct realisation of the will to influence the object. For objects in the spatial sphere of control of a person, there is a general will to have custody. The values of the common understanding of the situation must be taken into account. If the facts of the case are interpreted close to reality, the money and the valuables are on O’s body (e.g. in the purse, valuable object in the form of a watch on the wrist) or in O’s house, thus at least in the spatial sphere of control of O and consequently in his actual control.

The actual control of the object must be borne by the natural will of the owner to deal with the object according to his own will. This is undoubtedly the case for all objects that O carries on his body. The natural will to dominate does not have to refer to a specific thing, nor does it have to be current at all times. A general will to dominate all objects in one’s own spatial sphere of power also establishes custody, so that O has a natural will to dominate all objects in the house – thus also the money and the valuables.

Custody ends when the actual control of the object ends or the will to control the object is relinquished, e.g. the object is lost or forgotten unnoticed. This is not the case here, so that O has custody of the money and valuables.

New custody is established according to the view of the public as soon as the offender or a third party has gained control of the property in such a way that he can exercise it without substantial obstacles and the previous custodian can no longer influence the thing without having to eliminate the now existing power of disposal of the offender or the third party. In the present case, T wanted to take the money and the valuables from O in order to finance his drug consumption; there is an intention to establish new, own custody.

The custody of another person is broken if the previous custodian’s control over the property is revoked against or without his will. T wanted to take money and valuables from O while threatening him with the knife. If the facts of the case are interpreted in a lifelike manner (the judgement of Münster Regional Court does not go into this), it must be assumed that T did not actively want to take the money and valuables from O, e.g. by searching out the wallet, taking out the money and inserting it, loosening the strap of a watch and inserting it or searching the flat, but that he wanted to threaten O with the knife while he took out the money and valuables and handed them over to T. This interpretation, however, does not mean that T wanted to take away O’s money and valuables. However, since O would have handed over the money and valuables to T according to this interpretation, it is questionable and disputed whether the dominion over the property would have been lifted against O’s will.

According to one view (jurisdiction^[5] & parts of the literature^[6] ), the existence of a breach of custody against the will of the custody holder is to be assessed according to the outward appearance. If the offender takes the thing, it is a case of a breach of custody against the will of the custody holder, whereas if the victim hands over or gives the thing to the offender, it is not. Assuming that O takes the valuables and hands them over to T, it would not be a case of taking, but of giving, so that in the absence of a breach of custody against the will of O, a taking away and consequently robbery would be excluded.

According to another view (probably the majority opinion in the literature^[7] ), this is judged exclusively on the basis of the victim’s inner direction of will, since predatory extortion, in contrast to robbery, is an offence of self-harm on the part of the victim and requires that the victim significantly harms himself. According to this view, self-harm is present if the victim is in a so-called key position. If the perpetrator – according to the victim’s perception – cannot take the object without the victim’s cooperation, the victim is in a key position, so that the result is not a taking away but a disposition of property and thus a predatory extortion and not a robbery is relevant. If the victim assumes that the perpetrator can take the object of the crime without his or her cooperation, such a key position does not exist and there is a breach of custody against the will of the custody holder.

In the present case, there are no indications that T cannot access the money and the valuables without the cooperation of O (safe, hiding place, …), so that it must be assumed that O does not have a key position and, according to this view, there would be a breach of custody against the will of the custody holder.

As the views reach divergent conclusions, a dispute decision is required.

The grammatical interpretation (the wording) of § 249 StGB and §§ 253, 255 StGB shows that none of the provisions contain the word “disposition of property”, which is required according to parts of the literature, in particular cannot be concluded from the word “property disadvantage”, as this does not presuppose a “disposition of property”. Only the word “tolerate” could, within the framework of the grammatical interpretation, speak for the requirement of a disposition of property, but while a “disposition” describes an actively undertaken action, the “toleration” of an action is the passive – possibly willing – acceptance of an action undertaken by someone else. The grammatical interpretation thus speaks against the requirement of a disposition of property and in favour of the view held by case law and parts of the literature.

In the context of systematic interpretation, the view of the literature is basically supported by the fact that fraud does not contain a “disposition of property” as a prerequisite in its wording either, but that this element of the offence is considered necessary by case law. This is based on parallels between fraud and extortion as well as theft and robbery. The case law objects that there are parallels between coercion and extortion rather than between fraud and extortion, but this is not convincing in view of the connection of fraud and extortion with the requirement of pecuniary damage or pecuniary disadvantage. Another argument against the view of case law and literature is that robbery, as a special law, comes before the general offence of predatory extortion, which is always realised, and §§ 253, 255 refer to the more specific rule, both in terms of the penalty and for the qualifications. The systematic interpretation thus speaks in favour of the view held by parts of the literature.

Within the teleological interpretation (meaning and purpose), both value contradictions and unjustified gaps in protection can be addressed

It is argued against this view by parts of the literature that this leads to unjustified gaps in protection if the perpetrator acts with force that breaks the will (vis absoluta) and, due to the lack of free will or formation of will, the victim has no possibility to act according to his or her own will, predatory extortion is excluded and – for example in the absence of an intention to appropriate – robbery is also not fulfilled.

However, the view of case law and literature is contradicted by the fact that without the requirement of a disposition of property in the offence of predatory extortion, the distinction between theft and its privileges (§§ 243 II, 248a, 247 StGB), the fundamental privilege of the presumption of use and robbery is undermined if every coercion in combination with a property disadvantage in the form of a taking away or presumption of use leads to the penalty of robbery, which requires a qualified act of coercion.

In the absence of systematic contradictions and inconsistencies in valuation, the view of the literature is therefore to be preferred despite remaining gaps in protection, so that the existence of a breach of custody against the will of the custody holder is to be assessed on the basis of the inner direction of the will of O and in the present case, in the absence of a key position of O (cf. above), a breach of custody against the will of O is to be assumed.

T thus had the intention to break O’s custody of the money and valuables and to establish his own new custody against O’s will, so that the intention to take away was present.

2. Use of a qualified means of coercion

In addition, T would have had to have had the intent to use a qualified means of coercion, violence against a person or a threat of present danger to life or limb.

Violence is physical coercion triggered by direct or indirect action which, according to the perpetrator’s conception, is intended and suitable to prevent the victim’s actual or expected resistance and to impair the victim’s free decision or formation of will.

In the present case, however, T only wanted to threaten O. The injurious = physical and coercive use of the knife is “definitely too extreme” for him, so that there was no intent to use violence against a person.

Threatening is the prospect of a future evil, the occurrence of which the offender pretends to have influence over. The addressee of the threat can be anyone who, in the perpetrator’s mind, is willing or obliged to protect the custody.

Already according to the facts of the case, T wants to use the knife (only) for a threat, so that the threat of a present danger to life or limb towards O is undoubtedly present. This would also have to be present. A danger is present if it is either imminent or can turn into harm at any time and can no longer be averted without immediate measures of defence. This is the case at the latest when the door is opened.

Thus, T has used a qualified means of coercion.

3. Connection between coercion and taking away

There must be a connection between the taking away of another person’s movable property and the use of a qualified means of coercion. This is the case when the coercion has been used to take away the object.

In the present case, T wanted to achieve by threatening O with the knife that he could take the money and valuables from O, so that there is a connection between coercion and taking away

4. Qualification: § 250 II no. 1 StGB

In addition, T could have had intent to fulfil the qualification of § 250 II no. 1 StGB. This requires that T used (a) a weapon or (b) a dangerous tool in the act.

A weapon is any object which, by its nature and purpose, is capable of inflicting substantial injury when made or modified for use against a person. Although a knife is capable of inflicting significant injury on a person by its nature and when used appropriately, a household knife lacks a corresponding intended purpose. T did not have the intent to use a weapon.

However, he could have shown intent to use a dangerous tool when committing the offence. The definition of a dangerous tool within the meaning of § 250 II no. 1 alt. 2 StGB is disputed.

According to one view, the concept of a dangerous tool is to be interpreted uniformly within § 250 StGB, so that the definition is based on that of § 250 I no. 1 alt. 1 StGB. This in turn is disputed, whereby three different views can be distinguished:

According to the so-called subjective purpose solution, the subjective purpose by the offender is decisive, so that an object is dangerous if the offender intends to use it in such a way in case of need that it would fulfil the requirements of section 224 I no. 2 StGB in case of its actual use. According to section 224 I no. 2 of the Criminal Code, any object is a dangerous tool which, taking into account its nature and use in the specific case, is capable of causing significant bodily harm. This is not the case with a knife that is only used as a threat, so that according to the subjective solution of purpose, it is not a dangerous tool.

According to the so-called objective quality solution of case law, the abstract injury potential of the object is decisive, so that any object that is capable of inflicting significant injuries due to its objective quality, such as a weapon, constitutes a dangerous tool. A knife, regardless of its length, is capable of inflicting significant injuries due to its hardness and sharp blade or point, so that according to this view there is a dangerous tool under section 250 I no. 1 alt. 1 StGB and, if interpreted uniformly, also according to § 250 II no. 1 alt. 2 StGB.

The so-called objective combination solution of the prevailing doctrine requires that the object is not only capable of causing significant injuries due to its objective nature like a weapon, but that this object can also only be intended for dangerous use from the perspective of an objective third party according to the circumstances of the individual case. From the point of view of a third party who is not aware of the reservation that the knife is only to be used as a threat, an object intended for dangerous use is present if the knife is used as a means of threatening, since if an offence is announced, it can also be assumed that it will be carried out, or this idea gives rise to the effect of the threat.

Thus, a dangerous tool is present both according to the objective quality solution and according to the objective combination solution, but not according to the subjective purpose solution. The argument against this solution is that according to § 250 I no. 1a StGB no intention of use is required, so that the dangerousness of an object cannot be determined subjectively, so that in the result of a uniform interpretation of § 250 StGB a dangerous tool is present.

According to case law, however, a dangerous tool under § 250 II no. 1 alt. 2 StGB, in contrast to section 250 I no. 1 alt. 2 StGB, a dangerous tool is any tool that, according to its specific use, is capable of causing serious injury, which is the case with a knife used as a threat.

T must have used this dangerous tool. A perpetrator uses a weapon or a dangerous tool in the sense of section 250 II no. 1 StGB if he uses it as a means of violence or under the perception of the victim to threaten, as T intended to do in the present case.

Thus, T had the intention to use a dangerous tool and thus for the qualification of § 250 II No. 1 Alt. 2 StGB.

5. Intent of unlawful appropriation

In addition, T would have had to have had the intention of unlawfully appropriating the object for himself or a third party. This presupposes that he wanted to appropriate the object at least temporarily and to achieve the permanent expropriation of the owner with at least contingent intent.

Appropriation is the assumption of a power of domination similar to that of an owner, aimed at annexing the thing at least temporarily to one’s own property. T wanted to finance his further drug consumption by committing the offence, which requires that he incorporates the money and the valuables into his property at least temporarily.

Expropriation is the permanent, de facto displacement of the owner from his position of ownership, which must be intended by the offender with at least contingent intent. In order to finance his drug consumption, T inevitably had to displace O from his position as owner and acted with at least contingent intent in this regard.

Furthermore, the intended appropriation would have to have been objectively unlawful, for which T would also have had intent. For the appropriation of the money and valuables, there is no due claim to transfer of ownership without a defence, so that the appropriation contradicts the legal order of ownership and is therefore objectively unlawful. There is also intent in this respect.

6. Interim result

The intention to commit aggravated robbery according to §§ 249 I, 250 II no. 1 alt. 2 StGB is present.

II. Approach

An immediate onset is when the offender has subjectively crossed the threshold of “here we go” and objectively a danger or violation of the legal object is imminent.

In the present case, T not only knocked (masked and with the knife in his hand) on the door, thus crossing the threshold of “here we go”, but also violated the legal interest of O’s physical integrity by injuring him.

Therefore, there is an immediate approach.

III. Illegality & IV. Debt

Neither justification nor reasons for exclusion of guilt or excuses are apparent, so that T acts unlawfully and culpably.

V. Grounds for exclusion and annulment of sentences (here: resignation according to § 24 I 1 Alt. 1 StGB)

However, T’s criminal liability could be excluded due to a withdrawal from the unfinished attempt according to § 24 I 1 Alt. 1 StGB. This requires (1) an attempt that has not failed, (2) an unfinished attempt and (3) the voluntary abandonment of the commission of the offence.

1. No failed attempt

An attempt has failed if the offender, according to his subjective perception, can no longer complete the act with the means already used or at hand without a break in time.

The decisive factor is the offender’s conception after the completion of the last act; the original plan of the offence has only an indicative effect.

In contrast to the LG Münster, the BGH negates a failure of the attempt and states:

2. Distinction between terminated/unterminated attempt (here: unterminated attempt)

The existence of an unsuccessful attempt enables the offender to withdraw from it. The requirements for this depend on whether it is a completed or an unfinished attempt.

An attempt is unterminated if the offender has not yet done everything that is necessary for the completion of the offence. On the other hand, an attempt is terminated if the offender believes that he has done everything necessary to bring about the success of the offence.

3. Voluntary abandonment of further execution of the offence

According to the established case law and the general opinion, the abandonment of the further execution of the offence is voluntary if

According to these standards, T acted voluntarily.

VI. Result

T resigned from the attempt of aggravated robbery according to §§ 249 I, 250 II No. 1, 22, 23 I StGB.

D. Negligent bodily injury (§§ 223 I, 229, 230 StGB)

The Münster Regional Court also convicts T of negligent bodily harm according to §§ 223 I, 229, 230 StGB. Although the BGH does not recognise any legal errors in this, it sets aside the sentence also with regard to this conviction because of the concurrence of the offences.

X. Footnotes

[1] This was already the case with the Imperial Court in its judgement of 06.01.1927 – III 917/26 on the savings bank book.

[2] Regional Court of Gießen, decision of 29 May 2013 – 7 Qs 88/13: “For criminal liability for embezzlement (§ 246 StGB), a movable object is missing, as it is only a “virtual” voucher.”

[3] BGH, judgement of 09.11.1993 – VI ZR 62/93: “The situation is different if the separated body parts are not intended by the legal entity to be reincorporated into its body. In such cases of final separation, it remains the case that the separated parts of the body lose their allocation to the body as an object of protection and become objects in the legal sense; this is because the idea according to which the right of self-determination of the legal entity allows the body and its separated parts to continue to appear as a functional unit does not come into effect here. This applies in particular to donated organs which, according to the will of the donor, are intended to be implanted in another person, or to blood donations intended for another person.”

[4] Basics on “black fuelling” at self-service petrol stations Ernst, JURA 2013, 454 et seq., who subsumes this in the case of a perpetrator determined from the outset to black fuelling (BGH NJW 2012, 1092) not under strangeness but in the taking away.

[5] Thus already the Reichsgericht in RGSt 4, 429 (432): “It must be recognised that in § 235 StGB’s the word ‘force’ is to be understood in the same sense as in § 240. For the offence of extortion (§ 253) differs from that of coercion (§ 240) only in that, on the one hand, extortion presupposes an intention directed towards obtaining an unlawful pecuniary advantage, on the other hand, in the case of coercion the “threat” is limited to certain means, otherwise the wording of the provisions in §§ 240 and 253 coincides …”; confirmed in BGHSt 7, 252 (255), as well as e.g. NStZ-RR 2011, 80 et seq.

[6] E.g. NK-Kindhäuser, 5th ed. 2017, § 253 marginal no. 16 et seq.: “[E]ach coerced conduct of the coerced person – act, acquiescence or omission – that leads to the reduction of assets [can be] constituent. The conduct does not have to have the character of a disposition of property”.

[7] E.g. Lackner/Kühl/Kühl, 29th ed. 2018, § 253 Rn 3: “The coerced act, acquiescence or omission must fulfil the requirements of a disposition of property”.

[8] For example, BGH NJW 1976, 58 and states: “The co-defendants assumed that a person would appear when the bell rang, against whom the means of coercion of robbery could be used immediately. In this assumption, they stood masked and with the weapon in their hands “on the jump”. Subjectively, they had crossed the threshold of “here we go” […] and objectively, they had started the criminal act of assault, because their actions were to lead to the realisation of the criminal act (the threat of the person appearing with the pistol) without intermediate acts”.

[9] E.g. BGH NStZ 2018, 616 (617, at 2.b.aa.1), according to which “the execution of the theft presupposes that [the victim] would take off the security chain, open the door, let the two defendants in and allow himself to be distracted by the defendant D.”. Only then would the other perpetrators have been able to search the flat and steal objects. Thus, their actions should not yet directly lead to acts of taking away.

written and translated by Ali Tahir Sen

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