Breach of custody

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The breach of custody is a criminal offense under German criminal law. The breach of custody is regulated by law in Section 133 of the Criminal Code and is therefore one of the offenses against public order . Because of the threat of punishment - imprisonment for up to two years or a fine - the offense is an offense .

text

Section 133 of the Criminal Code reads:

(1) Anyone who destroys, damaged, makes unusable or withdraws from official disposal of documents or other movable property that is in official custody or has been given to him or another person in custody is subject to imprisonment for up to two years or a fine fined.

(2) The same applies to documents or other movable property that is in the official custody of a church or other religious society under public law or has been officially given to the perpetrator or someone else in custody.

(3) Anyone who commits the act of a thing that has been entrusted to him or her as a public official or to persons particularly obliged to perform the public service is punished with imprisonment of up to five years or with a fine.

Offense

A protected legal asset is the official custody of movable property. Any movable property in official custody can be the object of the crime . For this, the matter must have been taken into possession by the authority (within the meaning of Section 11 (1) No. 7 StGB) in order to protect it from unauthorized access. This intent to prevent access is lacking in the case of things in mere official possession, such as office supplies or library books. The matter can also have been given into custody by the authority by a sovereign order, as can be the case, for example, with private towing companies. Paragraph 2 equates things in ecclesiastical custody to the offenses specified in paragraph 1.

Destruction, damage, rendering unusable or other removal from custody can be considered as an offense. The thing is withdrawn from official custody if the immediate use of the thing is made impossible, in particular if it is spatially removed in such a way that the readiness for use is suspended or made significantly more difficult. The mere hiding of the thing can thus suffice for the realization of the facts. However, it is always necessary to act against the will of the person entitled.

Section 133 (3) of the Criminal Code qualifies the act for public officials within the meaning of Section 11 (1) no. 4 of the Criminal Code.

literature

  • Joerg Brammsen: On the breach of custody in the form of "withdraw from official disposal" . In: JURA . 1989, p. 81-86 .
  • Volker Brüggemann: The breach of security . Studienverlag Brockmeyer, Bochum 1981, ISBN 978-3-88339-175-5 (dissertation Bochum).

Individual evidence

  1. ↑ BGHSt 5, 159; 18, 312.
  2. ↑ BGHSt 18, 312, 313.
  3. ^ Rudolf Rengier : Criminal Law Special Part II - Offenses against the person and the general public . 14th edition. CH Beck, Munich 2013, ISBN 978-3-406-68815-7 , § 57, Rn. 3 .
  4. ^ Rudolf Rengier : Criminal Law Special Part II - Offenses against the person and the general public . 14th edition. CH Beck, Munich 2013, ISBN 978-3-406-68815-7 , § 57, Rn. 8 .
  5. ^ Thomas Fischer : Criminal Code: StGB - with subsidiary laws . 60th edition. CH Beck, Munich 2013, ISBN 978-3-406-69609-1 , § 133, Rn. 9 .
  6. ^ Rudolf Rengier : Criminal Law Special Part II - Offenses against the person and the general public . 14th edition. CH Beck, Munich 2013, ISBN 978-3-406-68815-7 , § 57, Rn. 10 .
  7. ↑ BGHSt 33, 190.