Embezzlement (§ 246 StGB) – Elements, Penalties and Defense

In brief: Embezzlement under § 246 StGB is committed by whoever unlawfully appropriates a movable object belonging to another that is already in their possession. The range is up to three years of imprisonment or a fine; where the object was entrusted to the offender (aggravated embezzlement), up to five years. Unlike theft, there is no breaking of another’s custody. The defense focuses on the appropriation, on intent and on the distinction from theft, fraud and breach of trust; where the object is of low value, the offense is prosecuted only on complaint.

The accusation of embezzlement arises where someone keeps an object that does not belong to them but is already in their hands – such as found property, borrowed or entrusted items. Because it attaches to everyday situations of possession, the line between a mere civil-law breach and a criminal appropriation is often narrow. This article explains the elements, the sentencing range and the concrete options for action.

What is Embezzlement (§ 246 StGB)?

Liable is whoever unlawfully appropriates for themselves or a third party a movable object belonging to another (§ 246(1)). Unlike theft, the offender need not break another’s custody – they already have the object in their possession. Two elements are therefore central: the object must be another’s (not the offender’s own and not ownerless), and there must be an appropriation. The attempt is punishable (§ 246(3)).

The Manifestation of Appropriation

The appropriation requires an outward manifestation of the intention to permanently take the object into one’s own assets and to exclude the owner. Typical manifestations are selling, giving away, consuming, pledging or processing the object, denying possession of it, or definitively refusing to return it. A merely internal decision, a temporary use with the intention to return, or a delay in returning does not suffice. Precisely when an act crosses the line into a manifested appropriation is frequently the decisive question.

Aggravated Embezzlement (§ 246(2) StGB)

Where the object was entrusted to the offender – for instance as a custodian, employee, tenant or trustee – aggravated embezzlement with an increased range of up to five years applies. The breach of the particular trust is thus punished more severely. This constellation is of great practical importance in the employment relationship and in fiduciary relationships.

Distinction from Theft, Fraud and Breach of Trust

Embezzlement is subsidiary: it applies only where no provision carrying a heavier penalty is applicable. It differs from theft (§ 242) by the absence of a breaking of custody; from fraud (§ 263) by the absence of a deception; and from breach of trust (§ 266) by the absence of a duty to safeguard the assets of another. The correct classification decides the applicable offense and the sentencing range and is frequently the core of the defense – for instance where it is disputed whether the offender still had custody or whether it had already passed to another.

Low-Value Objects: an Offense Prosecuted on Complaint

Where the object is of low value (according to a widespread view up to around 50 euros), embezzlement is prosecuted only on criminal complaint, unless the prosecution affirms a special public interest (§ 248a StGB). The domestic and family sphere is likewise an offense prosecuted on complaint (§ 247 StGB). The complaint can be withdrawn – an important lever for the defense.

Typical Cases

Frequent are the embezzlement of found property (keeping a found object rather than reporting or returning it), the keeping of borrowed or rented items (for instance a leased vehicle or hired equipment), the use of entrusted money by employees or custodians, and the failure to return objects after the end of a contract. In the employment relationship, aggravated embezzlement (§ 246(2)) regularly comes into consideration.

Embezzlement in the Employment Relationship

A special constellation is the embezzlement of entrusted money or goods by employees – for instance cash, company property or collected proceeds. Here criminal proceedings and labour-law consequences (up to and including summary dismissal, including a dismissal on mere suspicion) often run in parallel. The criminal and the labour-law defense should be closely coordinated, and any statement carefully considered, since admissions in one arena have effects in the other. An overly hasty attempt at clarification with the employer can create the very problem one sought to avoid.

Course of the Proceedings

The proceedings usually begin with a criminal complaint by the injured party or the employer. At the end of the investigation there is either a discontinuance, a penalty order or a charge before the Local Court. The earlier the defense begins – and the more carefully any communication with the injured party is handled – the greater the scope for a favorable outcome.

Strategy and Options for Action

1. Remain Silent and Obtain File Access

Make no statement on the matter without defense counsel (§ 136 StPO). Only file inspection (§ 147 StPO) shows on what the allegation of appropriation is based.

2. Dispute Appropriation and Manifestation

Without an outwardly manifested appropriation, the offense is not made out. Whoever merely delays the return or keeps the object in safe custody has not yet appropriated it.

3. Intent and Error

An error about the ownership situation or a supposed right of retention can exclude intent.

4. Complaint Requirement and Compensation

Where the object is of low value, the absence or withdrawal of the complaint can end the proceedings. Victim-offender mediation and the return of the object or payment of its value (§ 46a StGB) have a mitigating effect.

5. Seek Discontinuance (§§ 153, 153a StPO)

For first offenders and a manageable value, a discontinuance – often against a condition – is a realistic aim.

Consequences of a Conviction

Every conviction is entered in the Federal Central Criminal Register; it appears in the certificate of good conduct as a rule from more than 90 daily units of a fine or more than three months of imprisonment (§ 32 BZRG). In the case of aggravated embezzlement in the employment relationship, additional labour-law consequences up to dismissal loom, and for regulated professions further consequences may arise.

Frequently Asked Questions

What is the difference from theft?

In theft the offender breaks another’s custody; in embezzlement they already have the object in their possession and merely appropriate it.

Is keeping found property punishable?

Yes, keeping a found object belonging to another with intent to appropriate it can be embezzlement of found property. It depends on the circumstances and the value.

Can the proceedings be discontinued?

Yes, for low-value objects, first offenders and compensation, a discontinuance under § 153 or § 153a StPO is frequently possible.

What are the consequences for my job?

Embezzlement of entrusted property at work can lead to dismissal – including a dismissal on suspicion. The criminal and labour-law defense should be coordinated.

Is delaying a return already embezzlement?

No. A mere delay in returning, without a manifested intention to keep the object, is not yet an appropriation and therefore not embezzlement.

How We Can Help

In embezzlement cases, appropriation, intent and the distinction from other offenses decide the outcome. Those who remain silent early and work specifically on these points can achieve a great deal. We defend you in Bonn and throughout the Rhineland; more on our page for criminal defense in Bonn.

This article provides a general overview and does not replace advice in an individual case. A reliable assessment is only possible after inspection of the file and a personal consultation.

Written by attorney Philip Bafteh, criminal defense attorney in Bonn. Philip Bafteh publishes regularly on criminal and commercial law and defends accused persons in investigative and trial proceedings.

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Last updated: July 2026