Criminal damage
Criminal damage is a central offense under German criminal law and describes the unlawful and intentional damage or destruction of property belonging to another. It protects the rights of third parties to their property and plays an important role both in criminal and civil law. The following article provides a comprehensive overview of the definition, legal elements, sentencing, special forms, and relevant issues related to criminal damage.
Concept and legal basis
Definition of criminal damage
Criminal damage generally refers to the intentional damaging or destruction of another person’s property. The term “property” in this context refers to a tangible object within the meaning of Section 90 of the German Civil Code (BGB). The provision regarding criminal damage is regulated in the German Criminal Code (StGB).
Statutory basis
The criminal law provisions on criminal damage are mainly found in Sections 303 to 305a StGB. The basic offence is covered by Section 303 StGB. In addition, there are qualifying circumstances and special forms, for example, regarding property of public interest or items under special protection.
Elements of the offense of criminal damage
Actus reus: Damaging or destroying
The actus reus comprises damaging or destroying another person’s property:
- Damaging means that the property is more than insignificantly impaired either in its substance or its intended usability. It is not necessary for the item to become completely unusable; a temporary impairment is sufficient.
- Destroying occurs when the property is annihilated in its existence or is so substantially damaged that it loses its intended usability completely.
Third-party ownership of the property
An item is considered “foreign” if it is owned by another person or is subject to co-ownership and is not without an owner. Therefore, no criminal damage can be assumed if the perpetrator damages only his or her own property, unless there are co-ownership conditions or third-party rights.
Intent and unlawfulness
For liability, intentional conduct is strictly required. Negligent acts are not covered by Section 303 StGB. Additionally, the act must be unlawful, meaning there must be no justifications such as self-defense or the consent of the entitled party.
Qualified and special forms
Particularly serious cases of criminal damage
According to Sections 304 and 305 StGB, aggravating circumstances may apply if the criminal damage concerns property that is particularly protected or used by the community, such as monuments, religious facilities, property used for public benefit, or public utility technical installations.
Criminal damage to motor vehicles
Criminal damage to motor vehicles is of particular practical relevance, for example, by scratching, puncturing tires, or other tampering. Section 303 StGB also applies here, with damages often amounting to significant sums.
Destruction of important work equipment and data
Since 2007, Section 305a StGB has provided a regulation supplementing the protection of important tools and data as the object of criminal damage. This also includes digital content, as long as it is essential for operations.
Graffiti or defacement
The unauthorized alteration of the appearance of another person’s property, e.g., by applying graffiti, is explicitly recognized as a variant of criminal damage under Section 303 (2) StGB, even if permanent damage to the substance does not occur.
Threat of punishment and legal consequences
Sentencing
According to Section 303 (1) StGB, criminal damage carries a penalty of imprisonment of up to two years or a fine. In serious cases and where suitable objects are involved (e.g., Sections 304, 305 StGB), the punishment can be significantly higher.
Criminal complaint and interest in prosecution
Simple criminal damage is an offense requiring a complaint according to Section 303c StGB, i.e., prosecution generally requires a complaint by the injured party, unless the prosecuting authorities determine there is a particular public interest, for example, in cases of repeated or significant offenses.
Ancillary penalties and civil consequences
In addition to criminal penalties, the injured party can claim damages under civil law pursuant to Section 823 BGB. This includes the costs of restoring the original state (“natural restitution”) or compensation for the economic loss incurred.
Distinction from other criminal offenses
Theft and embezzlement
While theft (Section 242 StGB) or embezzlement (Section 246 StGB) focus on the intent to appropriate, criminal damage is aimed at the destruction or deterioration of the property without appropriating it.
Arson
If foreign property is damaged by arson, there may also regularly be criminal liability for arson (Sections 306 et seq. StGB), which should be assessed with priority.
Trespass and vandalism
Some instances of criminal damage are accompanied by trespass (Section 123 StGB) or disturbance of the public peace. The term vandalism, which is common in everyday language, is not legally defined, but it often overlaps with criminal damage.
Practical examples of application
- Scratching a car: The deliberate scratching of a parked car by an unknown person objectively constitutes criminal damage.
- Spraying graffiti: Even without substantive damage, merely defacing the appearance can be punishable.
- Destruction of display cases or window panes: In this case, there is substantial damage to the property and thus criminal damage.
Problem areas and borderline cases
Significant impairment
The question of when a demonstrable impairment or “significance” of the damage exists may be disputed in individual cases. The focus is usually on whether there is a noteworthy functional limitation, deprivation of use, or need for repair.
Immunity for damaging own property
No criminal damage is assumed if the owner exclusively damages his or her own property, unless the rights of third parties are also affected (for example, in the case of leased or jointly used items).
Attempt and completion
Attempted criminal damage is also punishable (Section 303 (3) StGB). Even a targeted blow that does not result in tangible damage can be prosecuted at the attempt stage.
Modern developments and outlook
Digitalization requires a constant adaptation of the offense, for example, concerning digital data as “property.” Legal scholars are therefore increasingly considering whether an expansion of criminal law protection is necessary to address modern forms of criminal damage, such as those caused by computer viruses.
Summary
Criminal damage is a widespread criminal offense that serves to protect property and other financial interests. Its legal construction is complex and affects numerous areas of life, from everyday crime to white-collar crime. The legislator addresses the high level of protection required by means of a tiered system of sanctions and ongoing adaptation to social change.
Frequently asked questions
What penalties can be imposed for criminal damage?
The penalty for criminal damage is governed by Section 303 of the German Criminal Code (StGB). As a rule, it is a so-called misdemeanor punishable by imprisonment of up to two years or by a fine. In particularly serious cases, such as joint actions or damage to particularly protected property (such as monuments, religious facilities), the penalties can be more severe. In addition, a higher penalty may be imposed for continued or repeated criminal damage. In juvenile criminal law, mitigating circumstances are possible, such as educational measures instead of a regular sentence. Besides criminal sanctions, the victim may also assert civil claims for damages or removal of the damage.
Does criminal damage always have to be reported to the police?
Criminal damage is a so-called complaint offense, meaning prosecution usually only takes place if the injured party files a complaint (Section 303c StGB). Without such a complaint, the prosecuting authorities will not investigate in regular cases. The only exception is when there is a “particular public interest” in prosecution. Such interest can exist, for example, if the offense is particularly serious or if there is a particularly high amount of damage. In practice, a complaint by the injured party is the standard and a prerequisite for criminal proceedings.
What is meant by joint criminal damage?
Joint criminal damage occurs when several persons cooperate to unlawfully damage or destroy one or more objects. The joint action must be carried out in a planned or coordinated manner so that cooperation is apparent. The participants do not necessarily have to act physically together, but the action must be based on a joint plan. In contrast to mere assistance, joint action frequently increases both the degree of wrongdoing and culpability, which can have an aggravating effect on sentencing (Section 25 (2) StGB, co-perpetration).
Can attempted criminal damage also be punishable?
Yes, attempted criminal damage is also punishable under German criminal law (Section 303 (3) StGB). This means that merely beginning to commit the offense can be sufficient for criminal consequences, even if the intended damage is not ultimately completed. To this end, the perpetrator must, according to his or her view of the crime, directly begin to fulfil the elements of the offense, for example, if someone starts to use a spray can to create graffiti but is prevented from doing so by external circumstances. In the case of attempts, the penalty is individually mitigated depending on the circumstances of the particular case (Section 23 StGB, Section 49 StGB).
How does criminal damage affect civil claims for damages?
Irrespective of criminal prosecution, the injured party in a case of criminal damage can take civil action to recover the loss suffered. This is generally done through a lawsuit for damages under Section 823 BGB (German Civil Code). The perpetrator must then restore the original condition (natural restitution) or, if that is not possible, compensate for the value of the damaged object or the cost of repairs. In some cases, additional costs such as expert fees or loss of use can also be claimed. Civil liability exists independently of the outcome of criminal proceedings, but requires proof of culpable action.
Are there special protection provisions for certain items in criminal damage cases?
Criminal law provides for enhanced protection for certain items. For example, Section 304 StGB affords special protection to property used for the public benefit, i.e., the damage of objects serving public utility (such as roads, bridges, traffic signs, monuments, churches, schools). Especially mentioned are monuments, public parks, and objects serving the beautification of public places. The penalties for criminal damage to community property are often more severe. Similar special provisions exist for technical installations and vehicles in the transport sector as well as works of art.
What role does the perpetrator’s intent play in the assessment of the offense?
For criminal liability for criminal damage, so-called intent is required. This means the perpetrator must have acted deliberately and consciously and must have intended the damage or destruction of the foreign object. Mere negligence, such as accidentally damaging a mobile phone, does not fulfill the elements of criminal damage, although civil liability may arise in some circumstances. Only if intentional conduct can be proven will criminal prosecution follow. In cases where the motive is revenge, anger, or ideological grounds, this may be relevant for sentencing and assessing culpability.
