Entry theft – Legal definition and classification
The term entry theft describes a specific method of committing theft according to German criminal law. It is associated with so-called ‘qualified forms of theft,’ where the means of committing the offense is unlawfully entering an enclosed space by climbing in. Entry theft is of significant practical importance and is expressly regulated by law.
Legal basis
Entry theft in the German Criminal Code (StGB)
Entry theft is regulated in German criminal law under § 243 para. 1 sentence 2 no. 1 StGB. There it is stipulated that a particularly serious case of theft exists, among other things, if the perpetrator ‘breaks into, climbs into […] a dwelling, business premises, or any other enclosed space to commit the act.’
The relevant passage of the law reads:
“In particularly serious cases, theft is punishable by imprisonment from three months up to ten years. A particularly serious case usually exists when the perpetrator […] enters an enclosed space by climbing in, in order to steal movable property belonging to another person inside.”
Characteristics of entry
Definition of entry
Entry means overcoming obstacles that allow access to an enclosed space by a means not intended for that purpose. This distinguishes entry from other modes of commission, such as breaking in or gaining entry with a false key.
The perpetrator thereby gains access through physical effort, for example by climbing through windows, skylights, balconies, or shafts, even if these access points are open or only offer a narrow passage.
Object of the offense: Enclosed space
For an entry theft, there must be an ‘enclosed space.’ This includes in particular:
- apartments and residential houses
- business premises and workshops
- storage rooms, garages, basement compartments
- vehicles (under certain conditions)
An ‘enclosed space’ is any type of space that serves, at least for the purpose of theft, to protect against unauthorized entry and is surrounded by structures that are intended to prevent entry.
Distinction from other modes of commission
- Breaking in: Forcible opening of an access barrier, e.g., prying open a door.
- Entry with a false key: Use of an unlawfully obtained or duplicated key.
In contrast, entry does not require forcible opening, but overcoming the enclosure in an unintended way.
Overview of the elements of the offense
Subjective element
The perpetrator must act with intent to steal, i.e., with the purpose of unlawfully appropriating a movable item belonging to another for themselves or a third party.
Objective element
- Entry occurs by climbing into an enclosed space.
- The act directly serves the preparation or execution of a theft.
Attempt and completion
An attempt at entry theft is punishable as soon as the perpetrator, in carrying out their plan, begins the act of entering and penetrates the space, even if they have not yet taken any items.
Sentencing and legal consequences
Sentencing framework
Entry theft constitutes a particularly serious case of theft under § 243 para. 1 StGB. The sentencing framework ranges from imprisonment of three months to ten years.
Sentencing in individual cases
Although the law refers to a ‘regular case,’ the court may decide otherwise in individual cases if special circumstances exist, for example, an especially low value of the loot (petty value clause) or exceptional motives for the offense.
Significance of the qualification
By being classified as a particularly serious case, the otherwise significantly lower penalty for simple theft (imprisonment of up to five years or a fine) is substantially increased.
Distinction from other theft qualifications
Entry theft is one of several qualified forms of commission. To be distinguished, for example, are:
- residential burglary: Particularly protected (especially under § 244 StGB), since privacy is affected.
- theft with weapons: § 244 StGB imposes even stricter penalties for being armed or carrying dangerous tools.
- gang theft: Increased penalty for acting in concert.
Entry theft can be combined cumulatively with other qualifications, further increasing the sentence.
Practical significance and case law
Entry theft occurs in various scenarios, particularly in burglaries into residential houses or business premises through windows, skylights, or similar openings. The case law interprets the term based on the protective purpose of the respective structures against unauthorized intrusion.
Key principles from case law are:
- Entering through a tilted window already fulfills the elements of the offense.
- ‘Entry’ generally also exists when the perpetrator partially enters the space, provided that this allows access to the stolen goods.
- The mode of entry plays a decisive role for the criminal law assessment in qualifying the act as a particularly serious case.
Summary
Entry theft is a qualified form of theft under § 243 para. 1 sentence 2 no. 1 StGB, which criminalizes unlawfully entering enclosed spaces by climbing in. The provision also protects property and the security interest in spaces designed to prevent unauthorized entry. Due to the severe threat of punishment, this form of theft is of significant practical relevance and is a recurring subject in judicial case law.
See also:
- <a href="https://www.gesetze-im-internet.de/stgb/243.html”>§ 243 StGB (particularly serious case of theft)
- <a href="https://www.gesetze-im-internet.de/stgb/244.html”>§ 244 StGB (theft with weapons; gang theft)
- Extensive literature and case law on entry theft
Frequently asked questions
What penalties can be imposed for entry theft under German law?
Entry theft is treated in Germany under § 243 para. 1 no. 1 StGB as a particularly serious case of theft if the perpetrator climbs into a space, a building, or an enclosed premises to commit the act. The standard penalty is imprisonment from three months up to ten years. In less serious cases, the sentence may be reduced to between three months and five years (§ 243 para. 2 StGB). In addition to criminal penalties, the court can also impose additional consequences, such as a driving ban or confiscation of tools used in the offense. The exact sentence depends on the circumstances of the individual case, particularly the intensity of the conduct, the amount of damage, and any prior convictions of the perpetrator.
Are there differences between completed and attempted entry theft?
An attempt at entry theft is also punishable under § 244 para. 2 StGB. What matters is that the attempt itself—that is, the direct approach to the act, for example breaking into the building, even if the theft ultimately did not take place—is prosecuted. However, the penalty for the attempt may be mitigated (§ 23 para. 2, § 49 StGB), with the trial court determining the reduction of penalty at its discretion. Of particular importance is how far the perpetrator completed the act and what circumstances speak for or against mitigation, such as voluntary abandonment of the crime plan.
What role does ‘entry’ play in criminal liability?
Physical ‘entry’ is an independent qualifying feature of the particularly serious theft. Entry means gaining access to a protected space by overcoming an unconventional entry point, typically through a window or skylight, while regular entrances such as doors remain unused. This conduct demonstrates a higher degree of criminal energy, which is why the law provides for stricter penalties. The feature is met as soon as the perpetrator has at least partially entered the space with their body and thereby has the opportunity to remove goods.
What significance does the object of the offense have in entry theft?
For the qualification as entry theft, the theft must take place in a room, building, or specially secured enclosed space protected against intrusion. Open properties or generally accessible areas do not meet the requirements. Rooms and buildings within the meaning of the law are any spatially delimited structures with walls and a roof. In special cases, such as vehicles, it must be examined whether these can be classified as ‘enclosed spaces.’ This also applies to tents or caravans—as long as they serve as accommodation and are locked, they fall under this protection.
Are there exceptions or justifications for entry theft?
As with other offenses, criminal liability for entry theft can also be excluded if a justification exists. These include, among others, self-defense (§ 32 StGB), justifiable necessity (§ 34 StGB), or presumed consent of the person entitled. However, such cases are rare in practice, since unauthorized intrusion usually does not serve a legitimate interest. If excusing necessity (§ 35 StGB) applies—for example in an acute danger to life—penalties may be waived in individual cases. Each case requires careful individual assessment.
How does a report of entry theft affect criminal proceedings?
If entry theft is reported, the police will initiate an investigation. Due to the particularly serious nature of the case, it is an official offense, pursued even without an express criminal complaint. The public prosecutor’s office then examines the facts and decides on prosecution or discontinuation of the proceedings. The accused has obligations to cooperate, especially providing information about their person. A defense lawyer can be involved at any time, and the investigative authorities are required to strictly observe criminal procedure rights and secure evidence. The proceedings end with an indictment, discontinuation, or a penal order. The judgment is in principle enforceable immediately, unless an appeal is lodged.
Can juvenile offenders be criminally liable for entry theft?
For juvenile offenders (ages 14–17) and young adults (ages 18–20), the Juvenile Court Act (JGG) applies if the act is considered a juvenile offense. The punishments focus on educational measures, such as warnings, work requirements, or juvenile detention up to ten years in particularly serious cases. Decisive are the offender’s capacity for insight and sense of responsibility. Juvenile criminal law takes a primarily educational approach rather than one of pure repression.
How does entry theft differ from other theft qualifications?
Entry theft is one of several qualifications of particularly serious cases of theft under § 243 StGB. Other qualifications include, for example, theft involving the use of tools, exploiting a helpless situation, theft from a church, or theft of car parts. The common feature is always a heightened degree of criminal energy or special need for protection of the victim or object. Classification as entry theft is independent of whether further qualifications apply; however, multiple qualifications can further complicate sentencing.
