BGH: Mobile phone theft for the purpose of viewing data is not theft

The criminal categorization of the seizure of a smartphone poses a complex challenge for courts. This is especially true if the offender is not after the device itself but rather after gaining access to the data stored on it. The Federal Court of Justice (BGH) has now ruled that the intent to seize required for predatory theft under Section 252 of the German Criminal Code (StGB) is lacking if a third party merely takes the mobile phone as evidence for the purpose of checking or deleting data (Ref.: 4 StR 308/25).

In the case, which was initially heard by the Essen Regional Court, the defendant and his son ambushed a witness, threatened him with a knife, and took his smartphone. The intention behind this was to search the device for evidence of a possible extramarital relationship with the wife or mother of the two attackers.

The circumstances are reminiscent of a TV thriller: after threatening, “I will kidnap your daughter” and sexually abuse her, the perpetrator poured petrol on his victim. Despite a pepper spray attack by the defendant's son, the victim managed to start the engine of his car. The attacker was still halfway in the car at this point and jumped out of the vehicle in panic so as not to be dragged along. Meanwhile, the victim's mobile phone was lost and could no longer be found.

“Presumption of use” is not enough

The regional court sentenced the defendant to a relatively high prison sentence of five years and six months for particularly serious robbery combined with grievous bodily harm. However, the Federal Court of Justice has now overturned this judgment on appeal, as the intention to commit—i.e., the will to add the device to one's own assets—theft had not been sufficiently proven.

According to Section 252 of the German Criminal Code (StGB), predatory theft requires the perpetrator to take another person's property to unlawfully appropriate it for himself or a third party. According to the judges in Karlsruhe, this intention only exists if the perpetrator wants to treat the object as his own, at least temporarily, excluding the owner, and “incorporate” it into his assets. In contrast, there is no such intention in the case of mere "usurpation,” i.e., if the perpetrator wants to return the object unchanged after use or destroy it.

The Federal Court of Justice confirms: If there is no intention to keep the smartphone beyond the time required to check the data, there is no intention of appropriation within the meaning of the theft paragraph. The mere intention to check or delete data is not sufficient.

Data offenses must be examined separately

The appellate court criticized the regional court's assumption that simply placing the mobile phone in a jacket pocket automatically indicates an intent to misappropriate. This could also be explained as a short-term backup to check data. Without further evidence of an intent to appropriate beyond this, the intention to appropriate was not proven.

As the necessary internal elements of the offense—the intention of the offender—were not sufficiently proven, the BGH overturned the conviction. In the decision now published on 13 August, it referred the case back to another juvenile division of Essen Regional Court for a new hearing.

According to criminal law expert Jens Ferner, the decision emphasizes the central importance of the perpetrator's intent in the assessment of evidence and ensures a clear distinction between criminal theft and non-theft-related acts. However, depending on the individual case, the deletion of data can still constitute an offense of misappropriation. Data offenses would then also have to be examined separately.

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