Criminal trial for fraud
May 16, 2011 | 50,00 EUR | answered by Jan Wilking
Through an Ebay classified ad, a best friend sent an I-phone for a price of 486 euros. The package was shipped weighing 1.02 kg (DPD receipt available). According to the recipient's statement (email message available), the package arrived with only 300g. The package was accepted by a neighbor (DPD receipt). Now the best friend is being charged with fraud by the district court. I would compensate the recipient for the damage, as a potential trial could ruin their budding career.
Is my proposal good and could the plaintiff withdraw the charges if I were to persuade her with financial compensation? Or would it be better to go through with the trial? Unfortunately, the defendant has already been convicted of fraud.
Thank you for your response.
Dear seeker of advice,
I am happy to answer your inquiry taking into consideration the facts you have presented and your input as follows:
A criminal complaint for fraud cannot be withdrawn. Only a criminal charge for an "offense requiring a complaint" can be withdrawn. In this case, it is considered an "official offense" as the value of the object is over €50. Only if it were below that amount could fraud be classified as an offense requiring a complaint under § 263 paragraph 4 of the Criminal Code in conjunction with § 248a of the Criminal Code. Filing a criminal complaint, with an existing initial suspicion (§ 152 paragraph 2 of the Code of Criminal Procedure), will therefore lead to the initiation of an investigation by the public prosecutor against the reported person and possibly to prosecution. The complaint is not legally necessary for prosecution, so withdrawing the complaint cannot end the already initiated proceedings. However, a repayment during the process would be considered mitigating.
Based on your description, it seems doubtful that your friend can be proven guilty of fraud. In criminal law, the principle of "innocent until proven guilty" applies. If your friend can prove that the package weighed significantly more when shipped than when received, it is more likely that the iPhone was removed from the package during transport or after being handed over by the neighbor. If your friend sold the iPhone privately and not as a commercial trader, there should be no legal claim against him since the buyer then bears the so-called shipping risk, i.e. the risk of the goods being lost in transit. In this case, your friend would have fulfilled his obligation by handing it over to DPD. Therefore, if the buyer's claims for reimbursement are already doubtful under civil law, it is unlikely that your friend will be able to be proven guilty of fraud in criminal law.
Before refunding the money, your friend should therefore engage a lawyer specializing in criminal law locally to handle the matter, who can then assess, after reviewing the case files, the best course of action for your friend.
I hope this has provided you with a helpful initial orientation. If you have any further questions, please use the free follow-up function.
Please note that without knowing all the circumstances, I cannot provide a final recommendation within the scope of this initial consultation. If you require a final assessment of the situation, I recommend contacting a lawyer and discussing the situation with them after reviewing all documents.
Best regards
