Criminal defense for Breach of Trust in Bonn

Legal Basis

§ 266 StGB

Sentencing Range

Imprisonment of up to five years or a fine

Summary

Abusing a power of disposal over or an obligation to safeguard another person's financial interests, thereby causing financial detriment

An accusation of breach of trust under Section 266 StGB targets those entrusted with another’s assets – managing directors, employees, office-holders – and often turns on complex financial questions. The key issues are the duty to safeguard assets and whether a financial loss actually occurred. Attorney Philip Bafteh defends accused persons in Bonn, Cologne and nationwide – after full access to the case file.

Breach of Trust / Embezzlement (Section 266 German Criminal Code) – Criminal Defense Against Breach of Trust Charges

Breach of trust (Breach of Trust) is one of the central property offences in German criminal law and particularly affects persons in positions of trust – managing directors, board members, trustees, guardians, and other fiduciary managers. The offence is complex and its boundaries are intensively debated in case law and legal scholarship. For expats holding management positions in Germany, understanding this provision is essential.

Statutory Text – Section 266 StGB

Paragraph 1: Whoever abuses a power of disposal over the property of another, or an authority to obligate another, granted by law, official mandate, or legal transaction, or violates a duty to safeguard the financial interests of another arising from law, official mandate, legal transaction, or a fiduciary relationship, and thereby causes financial detriment to the person whose interests they are obliged to protect, shall be punished with imprisonment of up to five years or a fine.

Elements of the Offence in Detail

Abuse of authority: The offender exceeds the authority granted to dispose of another’s property or to enter into obligations. They act within their legal capacity but beyond their legal permission. Typical example: a managing director concludes a disadvantageous contract they were formally authorised to sign.

Breach of fiduciary duty: The offender violates a duty to safeguard another’s financial interests without necessarily exceeding formal authority. The duty must be an independent, particularly prominent fiduciary obligation – mere ancillary duties do not suffice.

Financial detriment: The breach of duty must result in financial detriment. The detriment is determined by comparing the financial position before and after the act (balance sheet comparison). An imminent risk equivalent to actual loss may exceptionally suffice.

Intent: The offender must act intentionally, at least accepting the breach of duty and the financial detriment as possible consequences.

Typical Methods of Commission

In practice, breach of trust cases arise as concealed withdrawals from company assets, disadvantageous contracts to the detriment of the company, granting loans without sufficient collateral, private use of company assets, misappropriation of client funds by lawyers or notaries, breach of duty by guardians in asset management, and kick-back payments at the company’s expense.

Sentencing Range

Simple breach of trust is punished with imprisonment of up to five years or a fine. In especially serious cases (Section 266(2) in conjunction with Section 263(3) StGB), the penalty is imprisonment from six months to ten years. For minor losses, prosecution is only on application.

Typical Defense Strategies

Defense against breach of trust charges is regularly complex and requires precise analysis of the accused’s legal powers and duties. Central points of attack include whether a qualified fiduciary duty existed at all, whether a breach of duty occurred or whether the action fell within the scope of business judgement (Business Judgement Rule), whether financial detriment actually resulted, and whether the accused acted intentionally. Attorney Bafteh has particular experience in defending complex white-collar criminal cases and develops a defense strategy tailored to the specific case.

Typical case groups in breach of trust (§ 266 StGB)

Breach of trust requires a duty to safeguard another’s assets – not every breach of duty fulfils the offence. The distinction is demanding, especially for managing directors, association board members and employees with powers of disposal.

Managing directors and board members

For GmbH managing directors or board members, the question is often whether a decision was still covered by entrepreneurial discretion. The overall economic view is decisive here.

Cash and accounting cases

Shortfalls in cash or accounts quickly lead to allegations of breach of trust or misappropriation. It must be clarified whether a qualified position of duty existed at all and whether a financial loss occurred.

Financial loss

Without a concrete financial loss there is no breach of trust. The precise calculation of loss – including possible compensation – is a central line of defense.

Note: This information is general and does not replace advice in an individual case.

Summons or accusation of Breach of Trust? What matters now

Make no statement to the police at first

As an accused person you are never obliged to comment on the allegation. Anything said to the police can be used against you. Provide statements only through your defense attorney and only after reviewing the case file.

File inspection comes first

A sound defense against the allegation of Breach of Trust requires knowledge of the investigation file. Only once the available evidence is clear can we decide whether a statement is advisable or whether remaining silent is the better strategy.

Possible discontinuation of proceedings

Not every case ends in a trial. Depending on the evidence and any prior record, the proceedings may be discontinued for lack of sufficient suspicion (§ 170 II StPO), for triviality (§ 153 StPO) or subject to conditions (§ 153a StPO). Often a penalty order without a public trial can be achieved.

Victim-offender mediation and restitution

In many cases, victim-offender mediation or making good the damage (§ 46a StGB) can significantly reduce the sentence or enable a discontinuation. Whether this is advisable in your case is something we assess based on the file.

What we do after reviewing the file

We examine the evidence for reliability and admissibility, look for procedural errors, develop the defense strategy, seek a dismissal of the proceedings through discussions with the public prosecutor’s office and represent you, if necessary, at trial before the Bonn Local Court or Bonn Regional Court.

Available 24/7: +49 228 504 463 36

This information does not replace a review of the individual case. In criminal proceedings, the defense strategy depends substantially on the case file, the specific allegation and the evidence.