VERDICT
In the criminal case
against
1. xxx,
Defense Counsel:
Attorney Rasmus Kahlen, Lange Geismarstraße 55, 37073 Göttingen
2. xxx,
Defense Counsel:
Attorney Marlene Jendral, Lange Geismarstraße 55, 37073 Göttingen
3. xxx,
Defense Counsel:
Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen
because of burglary
The Eschwege District Court – Criminal Judge – ruled in the sessions of February 4, 2014 and February 20, 2014, in which the following participated:
xxx
as a criminal judge
xxx
as an official of the public prosecutor's office
Attorney Rasmus Kahlen
as defense counsel for the defendant xxx
Attorney Marlene Jendral
as defense counsel for the defendant xxx
Attorney Sven Adam
as defense counsel for the defendant xxx
Court clerk xxx on 04.02.2014
Chief Court Secretary xxx on 20.02.2014
as certifying officer of the registry
Judicially recognized on 20.02.2014:
The defendants are acquitted at the expense of the state treasury, which must also bear
the necessary expenses of the defendants
Applicable provisions:
Sections 242 para. 1, 243 para. 1 no. 1, 25 para. 2 of the German Criminal Code (StGB).
REASONS:
(abbreviated pursuant to Section 267 Paragraph 4 of the Code of Criminal Procedure)
I.
On September 6, 2013, the Eschwege District Court issued penal orders against the three defendants living and studying in xxx, against which they filed timely and formally correct objections.
The penalty orders accused the defendants of having jointly taken movable property belonging to another person in xxx on June 18, 2013 at around 0:00 a.m., with the intention of unlawfully appropriating the property for themselves or a third party, and of having entered an enclosed space to carry out the act.
The defendants were accused of having gone together to the tegut supermarket located in xxx on the night of June 18, 2013, and of having scaled a metal fence approximately 3.30 meters high in the area of a loading ramp of the supermarket. In this way, they allegedly gained access to the loading ramp and took food that had been set aside for collection and use by the xxx food bank, intending to use it for themselves. In this way, they obtained 28 loaves of bread, 35 rolls, 14 pieces of sweet pastries, 2 begonia plants, 1 pack of Grabower waffles, 4 packages of pre-packaged cheese, 5 pelargoniums, 2 packs of "Viel Leicht" ham sausage, 1 pack of tegut herbal balm, 1 pack of Wilke giant bockwurst, 1 tray of 300g organic strawberries, 1 tray of nectarines, 500g bell peppers, 1 tray of peaches, 1 tray of organic peaches, and 1 tray of organic grapes, which they loaded into backpacks and bags they had brought with them, as well as into a plastic crate and 2 disposable wooden crates, and loaded into their vehicle.
II.
The defendants were to be acquitted of this charge for factual reasons. It cannot be established with the necessary certainty that the food found in the vehicle of defendant xxx at the time of the inspection carried out by witnesses xxx and xxx originated from the tegut supermarket in xxx, and thus that the defendants committed the act with which they were charged.
It is beyond question that at the time of the traffic stop, the police officers suspected the defendants had stolen the food found in defendant xxx's vehicle from the tegut supermarket in xxx. This suspicion stemmed from the fact that the defendants had been seen by police officers xxx and xxx in the tegut supermarket parking lot immediately prior, and that some of the food found in the defendants' vehicle clearly belonged to the tegut supermarket's product range. Further police investigations initially seemed to reinforce this suspicion, as the following morning witness xxx reported that the food items placed on the loading dock of the tegut supermarket xxx, intended for the "Tafel xxx" (food bank), were no longer there. This led to the assumption that the defendants had stolen these items. This assumption is all the more plausible given that the metal fence there can be easily scaled without tools, as evidenced by the photographs taken.
The evidence presented, however, has revealed considerable doubt as to whether the defendants actually gained access to the loading dock of the tegut supermarket in xxx by scaling the metal fence and taking the food located there, particularly items intended for the xxx food bank. It remains unclear whether the food provided on a trolley for the xxx food bank was inside the store or on the loading dock, as this (empty) trolley was not visible in the photographs taken at night by witness xxx. Furthermore, regarding the packaged cheese found in defendant xxx's vehicle, if it was indeed intended for the xxx food bank, it was stored in the cold storage, not on the loading dock, according to the credible testimony of witness xxx. There are no signs of forced entry into the supermarket. Therefore, the origin of the refrigerated goods, especially the cheese found in the vehicle, remains uncertain. It also seems unlikely that the food in question was discarded food, which was also stored in three blue plastic crates on the loading ramp. It is highly doubtful whether the food seized and later donated to the "xxx Tafel" (food bank) was spoiled and therefore discarded. Furthermore, according to witnesses xxx and xxx, the plastic crates are emptied on Tuesdays, and the theft occurred on Tuesday night, a time when the crates could not have been full. In addition, witness xxx stated that the loaves of bread, which were supposed to be returned to the supplier, the xxx bakery, were packaged in bread bags, yet no such empty bread bags were found in the vicinity of the tegut supermarket in xxx, which would have been expected given the large number of loaves allegedly stolen. Empty bread bags are also not visible in the photographs taken at night by witness xxx.
According to witness xxx, it also appears impossible that the defendants took food from another residual waste container belonging to the tegut market in xxx, located in the area of the beverage market, as this container was secured by a chain and lock, and no signs of forced entry were found.
Under these circumstances, it appears entirely possible and plausible that the food items found by police officers xxx and xxx in the defendant xxx's vehicle originated from another supermarket, especially since a few items found in the defendant xxx's vehicle could also be attributed to other discount supermarkets. The fact that witness xxx was able to scan the goods using his scanner is irrelevant in this context, as, according to witness xxx, this only confirms that the goods are listed in the tegut company's product range, without indicating which specific tegut store the goods came from. In light of these circumstances, and in accordance with the principle of "in dubio pro reo" (presumption of innocence), the defendants were acquitted of the charge of aggravated theft pursuant to Sections 242 Paragraph 1, 243 Paragraph 1 No. 1, and 25 Paragraph 2 of the German Criminal Code (StGB), with costs to be borne by the defendants pursuant to Section 467 Paragraph 1 of the German Code of Criminal Procedure (StPO).
