Labello case
The Labello case (file number 4 StR 147/96) is an important case of the case law of the Federal Court of Justice (BGH) in criminal matters . The main issue here is whether an obviously harmless object can be a dangerous tool within the meaning of Section 250 I No. 1b) of the Criminal Code (StGB) . This is denied in the result.
Facts (simplified)
A goes to a drugstore . He pushes a lip balm stick (" Labello ") into the back of employee B and credibly assures her that it is the barrel of a sharp gun. B is so shocked that she hands over the contents of the till to A.
Legal issues
In the opinion of the BGH, which distinguishes the robbery from the predatory extortion according to the external appearance, the act of A is undoubtedly a predatory extortion according to § 255 StGB. It is questionable whether the act also fulfills the criteria of § 250 I No. 1b) and thus a serious predatory extortion exists. In practice, this is important insofar as predatory extortion is punishable by imprisonment for no less than one year, while serious predatory extortion is punishable by imprisonment for no less than three years. In order to fulfill the criteria of § 250 I No. 1b), A would have to “have otherwise carried a tool or means with him during the act in order to prevent or overcome the resistance of another person through violence or threats of violence”.
False weapon problem
The problem is that a lip balm is objectively harmless, so it is not actually a dangerous object, but possibly a so-called dummy weapon. According to the wording and will of the legislature, items that are objectively harmless also fall under Section 250 I No. 1b) of the Criminal Code. It is questionable, however, whether a lipstick can be viewed as a sham weapon. This is supported by the fact that in the context of this provision it is precisely not an objective hazard that matters. In addition, the fear of a victim is just as great as a threat with a plastic weapon (which is indisputably a dummy weapon). However, this is contradicted by the fact that a plastic weapon can, based on its external appearance, give the impression that it is a real weapon, which is clearly not the case with lipstick.
Decision of the BGH
In the case of a recognizable harmless object such as a lip balm stick, the decisive factor is less the nature of the object than the deception of the perpetrator in order to make the victim feel threatened. For this reason, it makes sense to remove such items from the scope of § 250 I No. 1b) in order not to interpret the qualification situation, which has a minimum penalty of three years, too extensive.
Current decisions on similar problems
- OLG Braunschweig, NJW 2002, 1735
- NJW 2003, 1677
- NStZ 2003, 569ff.
See also
Web links
Individual evidence
- ^ Text of the judgment printed in NJW 1996, 2663; NStZ 1997, 184; NStZ 1997, 187; StV 1996, 545
- ↑ http://www.hrr-strafrecht.de/hrr/4/05/4-170-05.pdf
- ↑ Archived copy ( memento of the original dated August 6, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
