New criminal complaint for fraud despite probation
January 1, 2010 | 25,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Hello! I have a question regarding criminal law. A year ago, I was convicted of goods credit fraud and sentenced to 3 years and 6 months (probation). In December 2008, I ordered from a mail-order company again, but returned the goods in full. I have the return receipt as proof. However, the mail-order company (collection agency) still wanted the money for the goods, even though I had written to them multiple times. They have now reported me for fraud (since I had already given a sworn statement) and I have to go to court again. I am accused of pretending to be able to pay for the goods and causing 3 damages. But I didn't keep the goods and could have paid for them if I had. So they can't accuse me of that, right? What is the worst that could happen to me? Do I have to serve my 6 months of imprisonment now or do I have a chance of probation extension? What is the likelihood that I will have to go to prison?
Best regards
Dear inquirer,
First of all, thank you for your inquiry!
I would like to address your questions considering the circumstances you have described as follows:
Whether fraud is present in your case is difficult to determine without knowledge of all the circumstances. Many prosecutors assume a so-called fraud in the inception based on the EV. However, there is also case law that does not consider the mere existence of an EV to be sufficient.
It particularly depends on the period between the submission of the EV and the relevant order of goods, as well as the income of the accused, in other words, the specific circumstances of the individual case.
I have attached a link to a relevant judgment for you:
http://www.nacke-leffler.de/mitteilungen/eingehungsbetrug-bei-warenbestellungen-im-versandhandel-verneint.html
You should definitely hire a lawyer to request access to the case files from the prosecutor's office, as only then can you (and the lawyer who will assist you with appropriate arguments) get a complete overview of what facts the competent prosecutor's office is assuming.
The fact that you did not keep the goods is unfortunately not relevant, but it is important that, according to your account, you wanted to pay for and were able to pay for the goods.
In the worst case scenario, probation could be revoked, resulting in you having to serve your prison sentence. An assessment is unfortunately not possible without access to the case files. An extension of probation is also possible. This also depends somewhat on the discretion of the competent prosecutor/judge.
As mentioned before, you should hire a colleague as soon as possible to request access to the case files and then coordinate the further steps, which will mainly involve arguing against your intent regarding goods fraud.
In conclusion, I would like to point out the following:
The legal advice provided by me is based solely on the information provided by you. My response is only an initial legal assessment of the situation and cannot replace a comprehensive examination of the circumstances.
Adding or omitting relevant information can lead to a completely different legal assessment.
I hope that my explanations have been helpful to you. You are welcome to contact me through the follow-up option on this portal or via my email address.
I wish you a happy new year and all the best!
Kind regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney-at-law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax. 0471/57774
