Trespassing: What Penalty You Can Expect

What Does Trespassing Mean?

Trespassing under Section 123 of the Criminal Code (StGB) is among the offenses that protect the legal interest of private and public property rights. The focus is on the right of the authorized person to determine who may enter or remain on their premises.

The criminal offense is committed when someone:

• enters the residence, business premises, or enclosed property of another person, or enclosed spaces designated for public service or traffic,
• against the will of the authorized person, or
• remains there without authorization.

The will of the property rights holder is crucial here, which must be expressed through a prohibition or a request to leave the premises.

Elements of the Offense in Trespassing

• Residence: The term residence encompasses all spaces that serve private living and residential purposes. This includes not only houses and apartments, but also hotel rooms, vacation homes, and detention cells.

• Business Premises: Business premises are locations primarily used for commercial, business, or professional activities. This includes offices, workshops, or retail stores.

• Enclosed Property: This refers to land that is clearly protected against entry by unauthorized persons through measures such as fencing, walls, or hedges.

• Enclosed Spaces: This term encompasses spaces designated for public service (e.g., government offices) or traffic (e.g., train stations) that have been demarcated by structural measures.

• Entry and Unauthorized Remaining: Entry means entering the premises without permission from the authorized person. Unauthorized remaining occurs when a person continues to stay on the premises after being asked to leave.

Examples of Trespassing

In practice, there are various scenarios in which trespassing may occur. To illustrate the offense and its facets, here are some examples:

• Unauthorized Entry onto Construction Sites: Construction sites often qualify as enclosed property. Unauthorized entry may therefore constitute the offense, particularly when warning signs indicate the prohibition.

• Demonstrations or Occupations: During demonstrations in public buildings or the occupation of private property, investigations for trespassing frequently occur. It must be examined whether public access was available and whether an express objection was made.
• Disputes Between Neighbors: Trespassing can also become relevant in neighborhood disputes, for example when someone enters or remains on another person’s property without authorization.

Aggravated Trespassing

Aggravated trespassing constitutes a qualified offense of the basic offense under Section 124 StGB. This offense occurs when trespassing is committed in connection with a crowd that uses violence or threatens to do so, such as during riots or a planned occupation. The focus is on protecting public safety.

Unlike simple trespassing, this is a public offense that is prosecuted without a criminal complaint. A defense requires examination of whether the participation was active and intentional.

What Penalty Is Imposed?

The penalty for simple trespassing under Section 123 StGB is a fine or imprisonment of up to one year. In addition to criminal sanctions, civil law consequences may also arise, such as injunctions or claims for damages, for example for the restoration of damaged areas.

For aggravated trespassing under Section 124 StGB, committed in connection with a violent or threatening crowd, imprisonment of up to two years or a fine is imposed. Additional consequences may include professional disadvantages or entries in the certificate of good conduct, which can have far-reaching effects on professional and personal prospects.

Is Attempted Trespassing Punishable?

The attempted trespassing is not punishable. Section 123 StGB does not provide an express provision that criminalizes the attempt. According to Section 23(1) StGB, the attempt of a criminal offense is only punishable if the law expressly so provides, which is not the case with trespassing. Thus, a mere attempt, such as unauthorized entry onto a property, remains without legal consequences, provided the offense is not actually completed.

Trespassing as a Complaint Offense: What Does This Mean?

Trespassing under Section 123 StGB is a complaint offense. This means that prosecution generally only occurs if the injured party files a criminal complaint within three months of becoming aware of the offense and the offender. Without this complaint, no investigation is initiated, unless there is a special public interest in prosecution, which is rarely the case.

In contrast, aggravated trespassing under Section 124 StGB is a public offense. Here, the offense is prosecuted ex officio, regardless of whether a criminal complaint has been filed. This is because aggravated trespassing is usually associated with a threat to public safety by a violent or threatening crowd. Prosecution serves to protect the general public and therefore does not require the private interest of the injured party.

When Does the Statute of Limitations Apply to Trespassing?

The statute of limitations for simple trespassing (Section 123 StGB) is governed by Section 78 StGB and is three years. The period begins upon completion of the offense, for example when leaving the premises. After this period expires, the offense can no longer be prosecuted under criminal law.

For aggravated trespassing (Section 124 StGB), the statute of limitations is also three years, as the statutory penalty provides for a maximum sentence of two years’ imprisonment. Events such as the initiation of investigation proceedings or an interrupting act may, however, suspend or interrupt the statute of limitations.

Complaint for Trespassing: How to Respond Properly

If you have received a complaint for trespassing, it is important to respond calmly. Avoid hasty statements to the police or other parties, as ill-considered remarks could complicate your defense.

Exercise your right to initially make no statements regarding the matter, and consult a criminal defense attorney as quickly as possible. An attorney can request access to the case files to review the specific allegations and develop an appropriate defense strategy. Also clarify whether the complaint was filed within the required time limit, as trespassing is a complaint offense. Professional legal counsel helps protect your rights and minimize negative consequences.