Supreme Court Rules Smartphone Seizure for Data Review Not Theft

The German Federal Court (BGH) has established a critical legal distinction regarding the seizure of smartphones, clarifying that if an individual does not intend to retain the device beyond the examination of its data, there is no criminal intent to appropriate it unlawfully.

This ruling arose from a case initially heard in the Essen District Court, where a defendant and his son confronted a witness, threatening him with a knife to take his smartphone. Their motivation was to search the device for evidence of a potential extramarital affair involving the witness's partner. The scenario unfolded dramatically, resembling a crime thriller. The attacker threatened to abduct the victim's daughter and then attempted to set him ablaze with gasoline. Despite being pepper-sprayed by the defendant's son, the victim managed to start his car, causing the assailant to jump out in a panic, during which the victim's phone went missing.

The Essen District Court convicted the defendant of aggravated robbery and dangerous bodily harm, sentencing him to five years and six months in prison. However, the BGH later overturned this conviction during an appeal, stating that the necessary intent to appropriate the smartphone was not sufficiently demonstrated.

According to Section 252 of the German Penal Code, aggravated robbery requires that the perpetrator takes another's property with the intention of unlawfully appropriating it for themselves or a third party. The BGH judges indicated that such intent is only present if the perpetrator plans to treat the property as their own, at least temporarily, and intends to integrate it into their assets. This intent is absent when the perpetrator merely intends to use the item and return it or destroy it afterward.

The BGH emphasized that without the intention to keep the smartphone beyond what is necessary for the data examination, there is no criminal intent under the theft provision. The mere intention to check or delete data does not suffice to establish such intent.

The court criticized the lower court's assumption that merely placing the phone in a pocket indicated an intent to appropriate it. The action could also be interpreted as a temporary measure for data examination. Without additional evidence showing a broader intent to appropriate, the court ruled that the intention was not proven.

Due to the insufficient demonstration of the necessary mental state -- the defendant's intent -- the BGH annulled the conviction. In its decision, published on August 13, it referred the case back to a different youth chamber of the Essen District Court for retrial.

This ruling highlights the importance of the perpetrator's intent in assessing criminal liability and clarifies the distinction between theft and actions that do not constitute theft. Nevertheless, the deletion of data might still indicate intent to appropriate, depending on the specific circumstances, and such data-related offenses must be evaluated separately.