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In Germany, children up to the age of 14 are not liable to prosecution. What happens when a child steals a sweet in the supermarket and the parents don't notice at first? Only when they get home do they notice that their child has stolen something. Can the parents be prosecuted from that moment on if they know about it but do not give it back?

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  • Are people typically prosecuted for stealing sweets from the supermarket? If so, how does that happen when the theft is not discovered as the thief is leaving the premises?
    – phoog
    Commented Apr 21, 2023 at 21:16

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  • No, you are not personally criminally liable for a crime a third party has committed, even if you are their guardian. The conflict is managed by civil action, i. e. the store owner sues the child/guardian for damages.
  • In general, it is not a crime to not report a crime, planned, happening, or finished. There is one section that penalizes failing to report a planned crime, § 138 StGB. However, only very serious crimes such as homicide are eligible.
  • So what about aiding theft, §§ 242 Ⅰ, 27 Ⅰ StGB, e. g. by attending the child: This requires criminal intent, that means knowledge about and deliberate intent to commit a crime. Since the guardian wasn’t aware of anything, he can’t be liable.
  • As a guardian (§ 1626 BGB, or in general any guarantor) you can commit a crime by omitting a behavior, § 13 Ⅰ StGB (Garantenstellung). Theft by omission, §§ 242 Ⅰ, 13 Ⅰ StGB. The purpose of § 13 Ⅰ StGB is that you are forced intervene if an infringement of protected legal interests (e. g. life and limb, property, freedom) is imminent. As a parent you are a guarding guarantor (Beschützergarant). You are supposed to protect your child. However, § 13 Ⅰ StGB only has the extent of protecting legal interests of your patron. The supermarket owner’s property is not a legal interest you are mandated to protect. Hence no crime either.
  • Approving or rewarding a crime, § 140 StGB: Theft is not eligible, only crimes that are deemed suitable to disturb public order.
  • Failure to educate, § 171 StGB: If you grossly fail to educate your child, even go as far as encouraging it in engaging in criminal activities, you commit a crime. However, this is a one time occurrence we’re talking about, so not even remotely criminal.
  • Various “gang crimes”. A family should not be considered a gang (Art. 6 Ⅰ GG), but the DA has an infinite amount of fantasy.
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  • Thank you Kai for your detailed and good answer. Top!
    – Maik Lowrey
    Commented Apr 22, 2023 at 8:44
  • Can article 6 of the basic law really be interpreted that people who form a criminal organization should go scot-free if they happen to be related? That would be a serious issue in prosecuting criminal family clans. (I am of course not implying that people should be prosecuted just for being related to known criminals. Only for intentionally and willingly forming a criminal organization with their relatives)
    – Philipp
    Commented Apr 26, 2023 at 15:30
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    @Philipp There are indeed some constitutional concerns: You can only punish voluntary decisions. If you deem, say, marrying someone or conceiving a child (an attempt in) forming a gang for criminal purposes, the special scope of protection Art. 6 Ⅰ GG grants is violated. Family matters, including the decision to found a family, are protected from state interference. NB: This does not mean “crime families” get off scot-free; they are still tried individually for their individually committed crimes. The mere circumstance of accidentally being related will not be penalized, though
    – Kai Burghardt
    Commented Apr 26, 2023 at 19:51

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