In addition to theft and fraud , damage to property is one of the most frequently committed crimes in Germany. The basic offense of damage to property in Germany is regulated by Criminal Code , which reads as follows:
In addition to the property damage the separate offenses of consist data changes ) and of the Criminal Code ( computer sabotage ), because data no items are in the legal sense. According to StGB, the criminal liability of property damage, data modification and computer sabotage requires a criminal complaint . Damage to property is a private lawsuit .of the Criminal Code (
The term “ thing” includes not only physical objects, but also animals , for which Animal Welfare Act must also be observed. It does not matter whether the thing has any value. House remains that have already been destroyed can be further damaged. The physical state (solid, liquid, gaseous) is also irrelevant. In the case of gaseous things, however, the delimitation of the thing is necessary ( gas bottle or similar).
The criminal liability also presupposes that the damaged thing is foreign . This characteristic is to be understood as with theft : the thing is foreign if it is not the sole property of the perpetrator and is not ownerless .
Acts of action are first of all damage and destruction . Damage is a not inconsiderable violation of the material substance. If something is just dirty and it can be cleaned without great effort, it has not been damaged. Since the entry into force of the thirty-ninth Criminal Law Amendment Act in 2005, the not only insignificant or temporary change in appearance has also been an element of the offense (paragraph 2). This law had the express aim of being able to criminalize graffiti . Only practice can show whether this has been achieved. In legal doctrine, doubts are expressed about the suitability of Section 303 (2) new version with regard to the constitutionally required certainty. Also the constitutionally guaranteed freedom of art ( Abs. 3 S. 1 GG ) does not seem to have been sufficiently observed, so that the law itself is disproportionate. Even before the law was changed, a graffito was subject to the element of damage in paragraph 1 of the regulation if the subsequent cleaning had a not inconsiderable effect on the surface quality, especially when using sandblasting devices. Paragraph 2 therefore relates to graffiti that can be removed without leaving any residue.
A thing does not necessarily have to be damaged in its substance, according to established case law it is sufficient if the thing is impaired in its "intended usability":
- The Federal Court of Justice ruled on property damage when environmental activists blocked a railway line with a device in such a way that the rails themselves were not damaged, but the railway could only make the line passable again by replacing the rails.
- Letting the air out of a car or bicycle tire usually constitutes property damage.
The criminal liability presupposes intent , whereby it is sufficient, as always, if the perpetrator does not want the damage to be done, but nevertheless considers it possible and approves it (so-called "conditional intent", also called contingent intent ). A negligence committed criminal damage is not punishable.
The trial of criminal damage is found in paragraph 3 is punishable.
Damage to property is a common offense accompanying burglary . In most cases, however, a unit of action can be assumed here. Unity occurs in crimes against the person, when a weapon is wielded against the person or violence is exercised and clothing is damaged in the process.
The legal text ofStGB reads:
- (1) Anyone who unlawfully deletes, suppresses, makes unusable or changes data ( Paragraph 2) is punished with imprisonment for up to two years or with a fine.
- (2) The attempt is punishable.
- (3) For the preparation of a criminal offense according to paragraph 1, applies accordingly.
The offense of computer ( StGB) reads:
(1) Anyone who significantly disrupts data processing that is of essential importance for another by the fact that he
- 1. commits an act pursuant to Section 303a (1),
- 2. Entering or transmitting data (Section 202a (2)) with the intention of inflicting another disadvantage
- 3. A data processing system or a data carrier that is destroyed, damaged, rendered unusable, removed or changed is punishable by imprisonment for up to three years or a fine.
(2) If it is a question of data processing that is of essential importance for a foreign company, a foreign company or an authority, the penalty is imprisonment of up to five years or a fine.
(3) The attempt is punishable.
(4) In particularly serious cases under subsection 2, the penalty is imprisonment for a term of between six months and ten years. A particularly serious case is usually when the perpetrator
- 1. causes a large-scale loss of property,
- 2. acts commercially or as a member of a gang that has joined forces to continue to commit computer sabotage,
- 3. the act affects the supply of the population with essential goods or services or the security of the Federal Republic of Germany.
(5) For the preparation of a criminal offense according to paragraph 1, § 202c applies accordingly.
Both of these facts try to protect the new media by protecting data and data processing on a criminal basis. Whether this succeeds has been discussed controversially in the literature. This protection fails especially against virus programmers , however not for legal reasons, but because of the lack of success in investigations. In addition, the investigations often conflict with data protection , so that a constitutional investigation cannot be carried out.
In addition to the basic offense of property damage, there are also three qualifying offenses. They differ from the basic offense in addition to the increased range of penalties in that they are not only prosecuted upon request. Analogous to the paragraphs given below, similar regulations apply in Austria inStGB, in Switzerland in Art. 144 StGB.
Community damage to property
While § 303 StGB protects the property of the individual (partly public property), damage to property of public property, insofar as it falls underStGB, is threatened with an increased range of penalties:
- (1) Anyone who illegally objects to the worship of a religious society existing in the state or objects that are dedicated to worship , or tombs , public monuments , natural monuments, objects of art, science or trade that are kept in public collections or are publicly displayed , or objects which are used for the public benefit or to beautify public paths, squares or facilities, damaged or destroyed, are punishable by imprisonment for up to three years or a fine.
- (2) Anyone who, without authorization, changes the appearance of an item or an item indicated in paragraph 1 in a way that is not only insignificant and not only temporarily will be punished.
- (3) The attempt is punishable.
The peculiarity of the offense is that the perpetrator can also be the owner of the thing. Third-party property is not protected, but the public interest in the integrity of the objects. Since this is a different legal asset, it is disputed whether it is a separate offense in §304 StGB or a qualification of §303 StGB.
Destruction of structures
The destruction of buildings is a qualification according to StGB:
- (1) Anyone who unlawfully destroys a building , a ship , a bridge , a dam, a built road , a railway or another structure that is owned by another person, in whole or in part, is punished with imprisonment for up to five years or with a fine.
- (2) The attempt is punishable.
Destruction of important work equipment
The destruction of important work equipment according toCriminal Code has become particularly important because the vehicles of the police, the armed forces and the aid organizations have been given special protection. The provision was originally intended to protect against terrorist activities.
(1) Anyone unlawful
- 1. A third-party technical work equipment of significant value that is used for the construction of a plant or a company within the meaning of Paragraph 1 No. 1 or 2 or a plant that is used for the operation or disposal of such a plant or such a company , is essential, or
- 2. an essential for the use of technical equipment of the police , the army , the fire brigade , the civil protection or rescue service , which is of significant value, or
- 3. a vehicle used by the police, the armed forces, the fire brigade, disaster control or an ambulance service
completely or partially destroyed, punishable by imprisonment for up to five years or a fine.
(2) The attempt is punishable.
Criminal Code reads:
Protected legal interest is the property of others.
Object of crime
The object of the crime are all physical foreign things, but also animals ( ABGB ). The restriction to physical property results from the acts that the law enumerates: Claims cannot be "damaged". This restriction is relevant in so far as the Austrian ABGB uses a very broad technical term that also includes obligations under the term “personal property rights”. A thing is “foreign” if it is owned or at least jointly owned by a person different from the perpetrator. Own and ownerless things are not included in the offense. According to the wording of § 125 StGB, items with an exchange value as well as items with a mere use value are included in the offense.
With regard to the acts, a distinction is made between “damaging”, “defacing”, “rendering useless” and “destroying”.
An object is damaged when its material integrity is compromised . A functional impairment is insignificant.
A thing becomes defaced when its external appearance is impaired .
Making an object unusable is understood to mean that the perpetrator acts on the object in such a way that it can no longer (fully) fulfill its intended function (e.g. bending an umbrella).
An object is destroyed when it has been rendered unusable by an impairment of the substance and a repair is no longer possible .
Criminal Code reads:
In Switzerland, the issues of property damage are regulated in Articles 144 and 144 bis of the Swiss Criminal Code.
- Friedrich Geerds: Damage to property , Heidelberg 1983, ISBN 3-8114-3883-2
- Ulrich Behm: Damage to property and defacement , Berlin 1984, ISBN 3-428-05644-2
- Thomas Gerhards: Computer crime and property damage , Cologne 1996, ISBN 3-8265-5473-6
- Jörg Wünschel: The Graffiti Fighting Paragraph - A club blow by criminal law against the constitutionally guaranteed freedom of art? . In: KUR year 2008 issue 2, 42 - 45.
- BGH, file number 4 StR 428/97
- BGHSt 13, 207 (July 14, 1959)
- BayObLG / AZ: RReg 1 St 98/87
- Christian Bertel, Klaus Schwaighofer: Austrian Criminal Law: Special Part §§ 75 - 168b StGB. Springer, Vienna New York, 10th edition, p. 162.
- Helmut Fuchs, Susanne Reindl: criminal law, special part: offenses against the individual. Springer, Vienna New York, 2nd edition, p. 101.
- Christian Bertel, Klaus Schwaighofer : Austrian criminal law: special part §§ 75 - 168b StGB. Springer, Vienna New York, 10th edition, p. 163.