Trespassing (Germany)
The trespass is the intentional violation of constitutionally protected property inviolability pacified possessions . Trespassing is a criminal offense in Germany - despite its classification in the 7th section of the StGB ( "Offenses against public order" ), which only protects individual domiciliary rights .
Legalism
The offense of trespassing is regulated in Germany in § 123 StGB and, in addition to the basic offense ( § 123 StGB), also includes the qualification of serious trespassing ( § 124 StGB).
Constituent elements
The offense is divided into two variants: The offense is intentional intrusion against the will of the authorized person into more precisely defined rooms or not leaving these rooms despite a request from an authorized person. These rooms are apartments , business premises and other pacified properties or closed rooms that are intended for public service or transport purposes.
Examples: someone enters a shop despite a ban ; someone hides in a toilet at close of business.
Pacified possessions are areas that are externally recognizable and are secured against arbitrary entry by boundaries . It is controversial in jurisprudence how strong the pacification protection has to be ( wall , barricade, fence ). Demolished houses and shell structures are also recorded, provided they are pacified by suitable security measures, as well as movable objects that are used for the residence of people (boats, ships, market vendor's wagons, caravans). If movable property is not primarily used for residence purposes, the invocation of domiciliary rights is out of the question (“normal” motor vehicles, passenger cars).
In order to penetrate a room, it is sufficient for the perpetrator to allow part of the body to enter the pacified area without authorization. Entering with the entire body is not necessary; the "foot in the door" is sufficient. Disturbances that still take place outside the home or property or on the edge thereof, knocking or kicking a door, as well as nuisance calls do not fall under trespassing.
agreement
The consent of the authorized owner of the property rights precludes the offense. A general access permit is sufficient for buildings with a large number of visitors (e.g. department stores). On the one hand, it is controversial to what extent the thief who enters the department store to steal is liable to prosecution according to § 123 StGB. This depends on how the thief behaves to the outside world. If he behaves neutrally and a third party cannot recognize that he wants to steal something, he too is subject to consent. House rules with the passage “The general access permit does not apply to persons with criminal intent” is irrelevant, as the condition is aimed at a general group of people. However, an individual house ban is considerable.
The consent can also be made dependent on externally recognizable conditions, such as B. showing a movie ticket.
If the perpetrator has obtained consent with the help of deception , this is generally irrelevant, since it only depends on the will of the owner of the house right at the time the consent is given. Nevertheless, the offender can make himself liable to prosecution according to § 123 Abs. 1 StGB if he stays in the building without authorization, for example after he has been asked to leave by the owner of the house rights.
Defense against trespassing
A house ban can be issued in order to ward off, end or prevent a trespassing. The landlord is authorized to enforce the house ban with force if necessary ( self-defense ( § 32 StGB )).
Competitions
The trespassing often affects tatmehrheitlich with typical theft offenses , such as burglary or shoplifting together, who qualified § 124 of the Criminal Code can tateinheitlich possibly even with robberies , on the other hand but also with assault , criminal damage or bodily injury coincide.
Penalty, statute of limitations
For trespassing within the meaning of Section 123 StGB, the maximum penalty is one year imprisonment , which results in a three-year limitation period according to Section 78 StGB .
Criminal procedural law
In the variant of the basic offense, trespassing is a private indictment offense under Section 374 (1) of the Code of Criminal Procedure and requires a criminal complaint by the injured party or, if applicable, their relatives.
Development approach
Since German criminal law is based on the principles of the Reich Criminal Code of 1871 , “modern” forms of offense such as stalking were not adequately threatened under criminal law until 2007.
literature
- Rudolf Rengier : Criminal Law. Special Part II. 13th edition. Beck Verlag, Munich 2012, ISBN 978-3-406-63289-1 , pp. 251-260.
- Martina Weber: Squatting as a punishable trespassing? (also dissertation Trier 1990) Frankfurt am Main, Lang 1991, ISBN 3-631-43829-X .
- Hero Schall, The protective functions of penal provisions against trespassing, Duncker & Humblot, Berlin 1974.
