Gross nuisance – Definition, legal classification and areas of application
Definition: What is gross nuisance?
The term ‘gross nuisance’ refers to a form of unlawful, disruptive, or disturbing behavior that, according to common usage, is regarded as a significant annoyance or disturbance to public order or safety. Legally, the expression gross nuisance is found mainly in administrative offenses law and is primarily regulated by relevant statutory provisions.
Historical Development and Legal Foundations
Legal development
‘Gross nuisance’ was originally provided for as a criminal offense in the German Criminal Code (StGB). The provision was first introduced in the Imperial Criminal Code in 1871. As part of the so-called Major Criminal Law Reform of 1974/1975, the criminalization of gross nuisance was abolished. Since then, it is generally no longer treated as a criminal offense, but as an administrative offense.
Current Legal Situation
The former criminal provision of § 360 StGB (‘gross nuisance’) was repealed in 1974. It was replaced by § 118 of the Act on Administrative Offenses (OWiG). According to this, causing gross nuisance constitutes an administrative offense.§ 118 OWiG (Gross Nuisance) “Anyone who commits grossly improper acts that are capable of annoying or endangering the public or disturbing public order commits an administrative offense.”
The current regulation is therefore not aimed at punishing individual offenses, but rather at preventing and sanctioning disturbances without invoking criminal law.
Elements of the Offense and Requirements
Grossly improper act
A grossly improper act exists if the conduct, according to the values of social coexistence, is perceived as extremely inappropriate, offensive, or socially unacceptable. Careless or merely rude acts do not fulfill the offense; rather, there must be a particular quality of disturbance.
Suitability to disturb or endanger the general public or disrupt public order
The conduct must be suitable to generally affect the sensitivities of the population, for example through noise, pollution, or publicly offensive behavior. It does not matter whether an actual disturbance has occurred – abstract suitability is sufficient.
Intent and Negligence
According to § 10 OWiG, grossly negligent conduct is also sanctionable, although intentional conduct is usually required. The person must at least accept the possibility of committing the grossly improper act.
Distinction from Other Offenses
Distinction from criminal offenses
Gross nuisance is especially distinguished from trespassing (§ 123 StGB), disturbance of the peace, or property damage (§ 303 StGB) and similar offenses. If a criminally relevant offense applies, § 118 OWiG is not applicable (‘catch-all provision’).
Distinction from trivial cases
Not every disturbing act constitutes gross nuisance. Trivialities, minor rudeness, or socially tolerated deviations from norms are not considered administrative offenses within the meaning of § 118 OWiG.
Examples of gross nuisance
Classic cases of gross nuisance include:
- Driving loudly around residential areas late at night with motorcycles or cars without good reason
- Defacing public areas, provided no property damage occurs
- Triggering alarm systems without reason
- False emergency calls for prank or amusement purposes (provided there is no further criminal relevance)
- Blocking public paths with objects purely out of spite
Legal consequences of violations
Fines
If an administrative offense under § 118 OWiG is established, the responsible administrative authority may impose a fine. Depending on the severity of the disturbance and the specific circumstances of the case, fines can amount to several hundred euros.
Further regulatory measures
In addition to fines, the competent authority can also initiate further measures to restore public order, such as issuing dispersal orders, orders to refrain from further disruptive behavior, or the removal of sources of disturbance.
Areas of application and significance in practice and case law
The catch-all nature of § 118 OWiG has resulted in gross nuisance actually being sanctioned as an administrative offense in comparatively few cases. However, the provision is always applied when no other specific offense is relevant and there is a societal need to penalize a serious disturbance.
Case law emphasizes the exceptional nature of the provision and requires a certain degree of significance of the disturbance.
Prosecution and limitation
Prosecution
The proceedings are governed by the provisions of the Administrative Offenses Act. Sanctions are imposed by regulatory authorities, i.e., police or regulatory offices at the municipal level.
Statute of limitations
Prosecution is time-barred under § 31 (2) no. 1 OWiG six months from the commission of the administrative offense, unless a longer period applies by way of exception under other provisions.
Conclusion
The term ‘gross nuisance’ has both historical and current significance in German administrative offenses law. The offense serves to protect public order and is intended to sanction grossly improper, disturbing, or dangerous conduct below the threshold of criminal liability. The conduct must be capable of materially disturbing the structure of public life. However, application of the offense is subject to strict requirements and is limited to particularly serious cases where neither criminal law nor specific legislation applies.
Frequently Asked Questions
What are the legal consequences of ‘gross nuisance’ under German law?
In legal terms, the concept of ‘gross nuisance’ is codified in § 118 of the Administrative Offenses Act (OWiG). Gross nuisance occurs when someone intentionally, i.e., deliberately, significantly disturbs public order through a grossly improper act. The legal consequences are usually limited to a monetary fine, the amount of which is at the discretion of the regulatory authority, but generally amounts to between 5 and 1000 euros. When determining the amount of the fine, factors such as the seriousness, type, and circumstances of the offense as well as the offender’s motives are taken into account. A conviction for gross nuisance does not generally result in an entry in the certificate of conduct, as administrative offenses are never entered into the Federal Central Register. However, repeated offenses or severely disturbed public order may be regarded as a criminal offense if other elements of crime (such as property damage, bodily injury) are committed. In such cases, harsher penalties may be imposed, such as fines or imprisonment.
When does gross nuisance become time-barred as an administrative offense?
The limitation period for gross nuisance under § 31 section 2 no. 1 OWiG is generally two years. Within this limitation period, the administrative offense must be sanctioned by the competent authority, otherwise the person concerned can no longer be prosecuted. The period begins on the day the act was committed and can be interrupted by certain measures – such as the hearing of the accused or service of the fine notice – which causes the limitation period to restart. After the expiry of the limitation period, prosecution is excluded.
Can juveniles be held accountable for gross nuisance?
Juveniles between the ages of 14 and 18 can be held accountable for gross nuisance. However, special provisions of the Juvenile Court Act (JGG) apply if the offense fulfills elements of a criminal offense. If the conduct constitutes only an administrative offense, proceedings are usually conducted before the youth authorities. The amount of the fine is adjusted according to the age, maturity, and financial situation. In addition, the guardians of minors can be involved to supervise the juvenile.
Is there a difference between simple and gross nuisance in administrative offenses law?
The Administrative Offenses Act does not explicitly distinguish between ‘simple’ and ‘gross’ nuisance; the offense in § 118 OWiG only refers to ‘gross nuisance’. In everyday language, however, a difference is made: simple nuisance is improper behavior without significant disturbance to public order and usually remains without legal consequences. Gross nuisance, on the other hand, requires a significant disturbance and is penalized accordingly.
What examples have been classified by courts as gross nuisance?
Case law has recognized a variety of actions as gross nuisance. These include, for example, intentionally triggering a fire alarm without risk of fire, removing traffic signs resulting in danger to the public, or blocking public routes with the intent to hinder or unsettle others. Similarly, deliberately placing false warning signs or creating shock moments in public spaces constitutes gross nuisance if a significant disturbance or danger results. Typically, however, minor offenses without lasting consequences are not classified as gross nuisance by the courts.
Can elements of gross nuisance be combined with other criminal offenses?
Yes, an act classified as gross nuisance can also fulfill further criminal offenses, such as trespassing, bodily injury, or coercion. In such cases, however, the administrative offense of gross nuisance is superseded by the criminal law provisions (so-called blocking effect). This means that in the case of a criminal offense, prosecution is carried out primarily under the Criminal Code (StGB) and not additionally under the OWiG.
Is it possible to make an anonymous report of gross nuisance and how does the procedure proceed?
A report of gross nuisance can, in principle, also be filed anonymously with the police or the regulatory authority. The authority will then examine whether the circumstances provide sufficient concrete indications for identifying the perpetrator. After the complaint is filed, investigations are carried out by hearing the accused, possible witnesses, and collecting further evidence. The regulatory authority then decides whether to discontinue the proceedings or to issue a fine notice. The person concerned can appeal the fine within two weeks, in which case the district court will decide.
