Pretense of false facts
July 15, 2009 | 50,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Hello,
about a year ago, I ordered a birthday gift for my grandmother through a mail-order pharmacy. It was incontinence pads worth almost 40 euros.
I ordered the pads with the correct address - they should arrive after all.
Since I stupidly got myself into debt in the meantime regarding the "oh so great new apartment" and also guaranteed for a former almost-husband, I have now informed myself about the statutory declaration of assets (EV). I already had a warrant for the EV and now I can take monthly settlement offers and pay them off completely, as if everything will drag on longer and the creditors will only receive "3 euros" monthly. So I filed the EV.
Now back to the mail-order pharmacy:
Suddenly, a letter from the criminal police arrived: I was supposed to come for questioning as a suspect. Fraud, misrepresentation of facts.
The mysterious lawyer of the mail-order pharmacy even initiated a personal background check - but unfortunately, it was found that I did indeed provide my correct address. However, I still have to pay for the information.
Now a letter from the district court has arrived, stating that I am being accused of causing harm to another by obtaining an unlawful financial advantage (due to about 40 euros including shipping costs!!) under false pretenses.
Furthermore, the warrant for the EV is mentioned, but not that I have already submitted it.
I have absolutely no idea what consequences I may face. I have no idea where I may have made any false statements.
Meanwhile, through selling a designer bag on Ebay (with original receipt) & with a completely incompetent lawyer, I have already realized that being right does not necessarily mean getting justice.
I now ask for some advice on how to proceed.
Thank you very much.
Dear advice seeker,
Thank you for your inquiry!
I would like to address your questions as follows, taking into consideration your situation and the details you have provided:
If I understand correctly, you had already filed for insolvency at the time of placing an order with the online pharmacy, making you officially insolvent.
Even though it may be hard for you to understand, in such cases, this is considered a form of fraud known as "Eingehungsbetrug," which is a special type of fraud according to § 263 of the German Criminal Code.
The deceptive act lies in the fact that you were deceiving the online pharmacy about your ability to pay. It is established in legal practice that by placing an order, one also implies that they are financially capable of making the payment.
Furthermore, the lack of solvency is often interpreted as a lack of willingness to pay, unless additional evidence suggests otherwise.
Based on your description, it seems that the conditions for "Eingehungsbetrug" (if you have not yet paid the online pharmacy) are unfortunately met.
If possible, and if you have not already done so, you should settle the outstanding amount with the online pharmacy.
In my opinion, defending against the accusations may not be very promising, so it would be best to describe the situation as it happened, express your regret, and explain your circumstances.
Nevertheless, it is advisable to involve an experienced criminal defense attorney in the legal proceedings, as they may be able to negotiate a reduced sentence through strong arguments.
If you have no prior criminal record, the matter is likely to be settled with conditions under §§153 et seq. of the German Code of Criminal Procedure.
Punishment is unlikely in my experience, so it is likely to result in a settlement.
If, however, due to a previous conviction, a settlement is not reached, the penalty is expected to be a small fine of approximately 15.30 daily rates.
I hope that this provides you with some legal guidance, even though I regret not being able to deliver a more positive message. I wish you success and all the best!
One final note: The legal advice I provided is based solely on the information you provided. It is only an initial legal assessment and cannot replace a thorough review of the facts. Adding or omitting relevant information can lead to a completely different legal evaluation.
I hope my explanations have been helpful. Please feel free to contact me through the follow-up option on this platform or via my email address.
Have a pleasant Wednesday afternoon!
Kind regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney at Law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax: 0471/3088316
