On 11 July 2025, the Braunschweig Higher Regional Court (OLG) published a landmark decision on the theft of Bitcoin. The decision met with great interest both in legal circles and among the public, as it deals with the criminal law classification of digital assets and addresses fundamental questions regarding the legal treatment of cryptocurrencies under German law. The background to the case, the key legal issues in dispute, the court's reasoning and the likely impact of the decision are described in detail below.
Background to the case
The case centred on the theft of a significant amount of Bitcoin by a former employee of an IT company based in Lower Saxony and specialising in cryptocurrencies. The accused had gained access to the company's digital wallets by circumventing security mechanisms and transferred a total of 7.3 Bitcoin to his own address. The incident was discovered in spring 2024, whereupon the company filed a criminal complaint.
The public prosecutor's investigations came up against the central legal question early on as to whether and to what extent the theft of Bitcoin falls under the offence of theft under Section 242 of the German Criminal Code. While experts and lawyers disagreed on whether Bitcoin should be regarded as a "thing" within the meaning of the Criminal Code, the Braunschweig Higher Regional Court had to clarify the matter in principle as part of the appeal.
Key legal issues
German criminal law only considers theft under Section 242 of the German Criminal Code to have been committed if someone takes "another person's movable property" from another person in order to unlawfully appropriate it for themselves or a third party. The central issue is therefore:
- Is Bitcoin to be classified as a "thing" under criminal law?
- How is a seizure to be understood in connection with digital assets?
- Is criminal liability possible under other provisions (e.g. computer fraud pursuant to Section 263a StGB)?
The legal classification of Bitcoin
Bitcoin are digital, decentrally managed units that consist exclusively of data. They do not exist physically and are therefore not property under civil law (Section 90 BGB). Nevertheless, they are traded as assets and have considerable economic value. The legal debate as to whether and how Bitcoin should be categorised under existing law has been the subject of intense discussion for years.
The decision of the OLG Braunschweig
On 11 July 2025, the Braunschweig Higher Regional Court ruled that Bitcoin does not qualify as a "thing" within the meaning of Section 242 StGB. The offence of theft requires the object to be physically present and accessible for actual removal in the sense of a breach of custody. However, as Bitcoin merely consists of a sequence of data and has no physical existence, it lacks the element of an object.
Key points of the court's reasoning:
- Bitcoin are not physical objects, but data.
- The definition of "object" in criminal law requires a physical existence.
- The transfer of Bitcoin does not mean a breach of custody of an object, but rather a change in the power of disposal over digital information.
- An analogy to the factual definition is inadmissible due to the principle of certainty under criminal law (Art. 103 para. 2 GG).
However, the court expressly clarified that although the withdrawal of Bitcoin is not punishable as theft within the meaning of Section 242 StGB, it could be punishable as computer fraud in accordance with Section 263a StGB if there is an act of deception or manipulation of electronic data to obtain the Bitcoin.
Differentiation from other offences
The Braunschweig Higher Regional Court emphasised that, despite the rejection of the theft offence, access to third-party Bitcoin is indeed relevant in terms of criminal law:
- Computer fraud (Section 263a StGB): Anyone who deceives or manipulates data in order to obtain Bitcoin may be liable to prosecution for computer fraud.
- Data modification (Section 303a StGB): The unauthorised modification of stored data may also be punishable.
- Unauthorised access to computer systems (§ 202a StGB): Spying on other people's access data or wallets is also a punishable offence.
Overall, the court confirmed that Bitcoin thefts by no means take place in a "legal vacuum", even if the classic theft standard does not apply.
Reactions and significance for practice
The decision of the Braunschweig Higher Regional Court triggered a broad response:
- Legal experts welcomed the clarification, but called for the legislation to be quickly adapted to the reality of digital assets.
- IT security experts and companies recognise the urgent need to expand the protection of digital assets under criminal law.
- There have been calls in politics and administration for a reform of the Criminal Code to explicitly include cryptocurrencies in the offences.
Critics fear that criminals will use the decision as an invitation to steal digital assets.
Comparison with the legal situation abroad
There are also different international approaches to the criminal law treatment of cryptocurrencies:
- In the USA, bitcoins have been recognised as "property" in some court rulings, which makes it possible for theft to occur.
- Case law in the UK also tends to classify digital assets as property offences.
- In German-speaking countries, the restrictive interpretation, as confirmed by the Braunschweig Higher Regional Court, has dominated to date.
What happens next?
The decision of the Braunschweig Higher Regional Court of 11 July 2025 marks an important step in the legal debate on digital assets. It highlights the limits of existing criminal law and emphasises the need to adapt the legal offences to the requirements of the digital age. It remains to be seen whether the legislator will react in the short term. In any case, the protection of digital assets and the fight against cybercrime will remain a central topic of legal policy.
Should I be worried?
There is a clear answer to this: Yes!
The principle of personal responsibility remains unchanged; it cannot be transferred and should always be exercised. Overall, the process described can also be characterised as a judgement of convenience. The number of cases of cyber fraud in connection with crypto-assets is steadily increasing, but due to limited personnel capacities and a lack of qualifications, many of these proceedings remain unprocessed and are often discontinued.
With its decision on Bitcoin theft, the Braunschweig Higher Regional Court has made important clarifications regarding the criminal categorisation of digital assets. Although Bitcoin is not property within the meaning of Section 242 of the German Criminal Code (StGB) and is therefore not subject to classic theft, unauthorised access to Bitcoin is certainly punishable under other criminal law provisions. The decision emphasises the need for action on the part of the legislator and thus has a signal effect far beyond the individual case.
Appeals against decisions of the Braunschweig Higher Regional Court (OLG) are generally possible, such as appeals on points of law or appeals on points of law, depending on the type of proceedings and the decision made. The exact legal remedies and their admissibility are governed by the relevant laws, such as the Code of Civil Procedure (ZPO) and the Code of Criminal Procedure (StPO).
It therefore remains to be seen what further case law will look like. Some renowned lawyers have strong doubts about the position of the Braunschweig Higher Regional Court.
