In Germany, children up to the age of 14 are not liable to prosecution. What happens when a child steals a sweet in the supermarket and the parents don't notice at first? Only when they get home do they notice that their child has stolen something. Can the parents be prosecuted from that moment on if they know about it but do not give it back?
- No, you are not personally criminally liable for a crime a third party has committed, even if you are their guardian. The conflict is managed by civil action, i. e. the store owner sues the child/guardian for damages.
- In general, it is not a crime to not report a crime, planned, happening, or finished. There is one section that penalizes failing to report a planned crime, § 138 StGB. However, only very serious crimes such as homicide are eligible.
- So what about aiding theft, §§ 242 Ⅰ, 27 Ⅰ StGB, e. g. by attending the child: This requires criminal intent, that means knowledge about and deliberate intent to commit a crime. Since the guardian wasn’t aware of anything, he can’t be liable.
- As a guardian (§ 1626 BGB, or in general any guarantor) you can commit a crime by omitting a behavior, § 13 Ⅰ StGB (Garantenstellung). Theft by omission, §§ 242 Ⅰ, 13 Ⅰ StGB. The purpose of § 13 Ⅰ StGB is that you are forced intervene if an infringement of protected legal interests (e. g. life and limb, property, freedom) is imminent. As a parent you are a guarding guarantor (Beschützergarant). You are supposed to protect your child. However, § 13 Ⅰ StGB only has the extent of protecting legal interests of your patron. The supermarket owner’s property is not a legal interest you are mandated to protect. Hence no crime either.
- Approving or rewarding a crime, § 140 StGB: Theft is not eligible, only crimes that are deemed suitable to disturb public order.
- Failure to educate, § 171 StGB: If you grossly fail to educate your child, even go as far as encouraging it in engaging in criminal activities, you commit a crime. However, this is a one time occurrence we’re talking about, so not even remotely criminal.
- Various “gang crimes”. A family should not be considered a gang (Art. 6 Ⅰ GG), but the DA has an infinite amount of fantasy.