Definition and Legal Classification of Trespassing
The Concept Trespassing refers under German criminal law to the unauthorized entry or remaining within the protected premises of another person. The relevant criminal provision is Section 123 of the Criminal Code (StGB). Trespassing serves to protect the right to undisturbed possession and the privacy of both natural and legal persons. This criminal offense applies not only to living spaces, but also includes a variety of other premises and properties, provided they are suitably secured against unauthorized entry or qualify as protected property.
Elements of Trespassing
Protected Legal Interests
At the core of trespassing is the protection of ‘protected property,’ and thus the individual’s right to freely decide who may enter their apartment, house, or other specific rooms and properties. The legislator thus protects both the personal sphere of life and the publicly accessible area that is secured against unauthorized entry.
Objective Elements of the Offense
Protected Property
Protected property particularly includes fenced grounds, enclosed rooms, apartments, business premises, and other spaces intended for public service or transportation. The criteria for protected property include:
- Apartments and Commercial Buildings: Any kind of residential space, offices, shops, and medical practices.
- Fenced Properties: Gardens, courtyards, construction sites, and similar, provided they are visibly secured against easy entry.
- Rooms for Public Service or Transport: Offices, courts, hospitals, railway stations, airports, etc. – unless explicitly open to the public.
The term ‘protected’ refers to a visible boundary that distinguishes the area from arbitrary entry. This can be achieved using fences, walls, doors, or visibly recognizable demarcations.
Unauthorized Entry
Entry is any act of entering the protected area against or without the owner’s will. It is irrelevant whether force is used or an obstacle is overcome—it is sufficient to enter the room or property without or against the express or presumed will of the authorized person.
Remaining Despite a Request to Leave
Remaining in the protected place against the will of the authorized person can also constitute the offense of trespassing. The right to be present ceases at the moment the authorized person explicitly requests that one leave.
Subjective Elements of the Offense
Intent is required for criminal liability. The perpetrator must know and intend to act without authorization and to be in the protected area. Negligence is not sufficient.
Criminal Provisions and Sanctions
Statutory Text (§ 123 StGB)
Section 123 StGB states:
(1) Whoever unlawfully enters the dwelling, business premises, protected property of another, or enclosed spaces intended for public service or transportation, or remains therein without authorization, shall be punished with imprisonment of up to one year or a fine.
(2) The act is prosecuted only upon application.
Penalties and Sentencing
The punishment for trespassing ranges from a fine to imprisonment of up to one year. Due to the requirement for a criminal complaint (§ 123 para. 2 StGB), trespassing is generally only prosecuted if the injured party or an authorized body files a criminal complaint.
Complaint Offense and Prosecution
Trespassing is a so-called ‘relative complaint offense.’ Prosecution is initiated only upon application by the authorized person, i.e., the person with the right of possession. This means law enforcement authorities may only act upon suspicion of trespassing after receiving a relevant complaint from the affected party.
Exemptions from the Offense and Justifications
No criminal liability arises where entry or remaining is legally permitted. Justifying reasons may include, in particular:
- In cases of necessity (§ 34 StGB) or self-defense (§ 32 StGB).
- Where a third party was demonstrably authorized at the time of entry, such as in emergencies by rescue services, fire brigade, or police.
- With the consent or acquiescence of the authorized person.
- If there are unlawful obstructions to the execution of public duties, it may be separately examined whether a justification exists.
Trespassing in Connection with Assemblies and Demonstrations
Trespassing is of particular relevance in the context of sit-ins or occupations of buildings and land, for example, during political protests. Here, there is a typical tension between the right of assembly and the right of the owner or possessor. In such cases, courts weigh the fundamental right to freedom of assembly against the owner’s rights.
Distinction from Other Criminal Offenses
Trespassing is distinguished from, among others:
- Breach of the Peace (§ 125 StGB): This requires acts of violence against property or persons in connection with gatherings of people.
- Burglary (§ 243 StGB): Entering with the intent to steal generally involves a higher degree of criminal wrongdoing.
- Particularly Serious Case of Theft (§ 243 para. 1 sentence 2 no. 1 StGB): This refers to break-ins committed with intent to commit a crime.
Case Law and Practical Application
Case law interprets the terms ‘protected property’ and ‘unauthorized entry’ according to the specific circumstances in each individual case. The extent of physical or symbolic boundaries is also assessed case by case, as is the question whether remaining after express demand to leave constitutes a criminal act. In practice, typical cases include unauthorized entry into private apartments, commercial or storage premises, as well as unauthorized remaining after events have ended.
Civil Consequences and Compensation Claims
In addition to criminal penalties, trespassing may also give rise to civil claims. These particularly include the owner’s right to injunction and, if applicable, to compensation for damages caused, pursuant to Sections 823 et seq. of the German Civil Code (BGB).
Prevention and Protective Measures
Occupiers of the premises may take preventive measures:
- Clear and visible marking or fencing of properties
- Use of access controls or technical security systems
- Clear signs indicating the prohibition of unauthorized entry
Summary and Significance in Day-to-Day Legal Practice
Trespassing is a key offense for protecting private and commercial living spaces. It covers a large number of everyday situations, making it a frequently occurring offense of considerable practical importance. Its legal structure requires a balance between the right to inviolability of property and public interests or other fundamental rights. Comprehensive understanding of trespassing is therefore crucial for assessing many everyday scenarios and for choosing appropriate protective measures.
Frequently Asked Questions
What requirements must be met for trespassing under Section 123 StGB?
Several requirements under Section 123 para. 1 StGB must be met for actionable trespassing. First, there must be ‘protected property,’ meaning an area demarcated against unauthorized entry, such as apartments, business premises, fenced gardens, or business grounds. The boundary must be clearly recognizable and suitable for protecting the property against unauthorized intrusion, for example with fences, walls or closed doors. Unauthorized entry presupposes that the perpetrator enters or remains in the protected area without the express or implied consent of the authorized person. Mere entry is sufficient; actual lingering is not necessary. A person may also be criminally liable for failing to leave after being requested to do so by the authorized person. The act must be committed intentionally—accidental entry, such as due to misunderstanding the property line, is generally not sufficient. In exceptional cases, such as police measures or emergencies, justification may exist that negates the offense.
Who is authorized to issue an eviction notice and how must it be communicated?
The right of possession, and with it the authority to issue an eviction notice, generally lies with the owner or the person lawfully in actual control of the premises (e.g., tenant, lessee, or shop operator). The eviction notice may in principle be informal, oral or written; even an implied declaration is possible in exceptional cases, insofar as it is clear and understandable to the person concerned. What is important is that the eviction notice is issued unequivocally and recognizable to the affected individual, as otherwise, they would not be acting without authorization and the criminal offense would not be fulfilled. A general or indefinite eviction is as possible as a limited or specific one. Violation of a valid eviction notice can constitute the offense as soon as the protected premises are entered or remaining occurs despite a request to leave.
What penalties can result from trespassing?
Trespassing is punishable under Section 123 para. 1 StGB by imprisonment for up to one year or a fine. The law classifies the offense as a so-called complaint offense—meaning prosecution is generally only initiated at the request of the owner or occupier (Section 123 para. 2 StGB). The actual level of penalty depends essentially on the individual circumstances, in particular the seriousness of the trespassing, any criminal history, and the behavior of the perpetrator (e.g., immediate departure upon request or aggressive conduct). In less serious cases, fines are most commonly imposed in practice. If there are aggravating circumstances—such as connection with other offenses (e.g., theft, property damage, coercion)—imprisonment may also be imposed.
Does trespassing also apply for public buildings or events?
Public buildings such as government offices, courts, or schools are fundamentally protected under Section 123 StGB, unless they are generally and at all times open to everyone. For example, if a school is entered outside opening hours or a government building is entered after closing time without permission, this may constitute trespassing. During events, open and officially designated areas are generally accessible; the offense only arises when certain areas are cordoned off or entry is expressly forbidden—such as VIP areas, backstage, or technical rooms. The discretionary character of the right to control premises remains in place in public buildings, so that bans can be issued. What is decisive is always whether a specific spatial demarcation and the will of the owner to exclude exist.
In which cases is trespassing not punishable despite objectively unauthorized entry?
The criminal offense of trespassing does not apply if a justification exists. This can be the case, for example, if entry is necessary to avert danger (necessity under § 34 StGB), such as to save lives, fight fires, or protect legitimate interests. Police enforcement actions, searches based on judicial order, or emergencies also constitute justified actions and are not punishable. In addition, presumed consent of the authorized person (e.g., tradespeople entering for maintenance with a prior order, even if no one is present) can be grounds for justification. The decisive factor is always the demonstrable will of the owner and the specific emergency or exceptional situation.
How can trespassing be proven and what evidence is relevant?
Trespassing is typically proven by witness testimony, especially that of the occupier and any other present persons. Technical evidence such as video footage, photos from surveillance cameras, or traces (e.g., damage to locks, windows, or doors) can also be important. In civil disputes, the burden of proof is also relevant: in criminal proceedings the prosecution must prove unauthorized entry, the accused does not have to prove innocence. For conflicts regarding the existence or validity of an eviction notice, the form and delivery of the notice matter. Written communications, protocols, and—where available—documented oral statements help with judicial clarification. Where several persons are involved, individual participation (perpetrator, instigator, accomplice) is relevant for criminal assessment.
Are there special rules for minors or persons with diminished criminal responsibility regarding trespassing?
Minors, i.e., persons under 14 years of age, are not criminally responsible under § 19 StGB and cannot be prosecuted for trespassing. Juveniles (14 to 17) and young adults (18 to 20) are subject to juvenile criminal law, which focuses on education and prevention and is generally more lenient than adult criminal law. For persons with diminished or suspended criminal responsibility (e.g., due to mental illness or intoxication), the provisions of §§ 20, 21 StGB apply; their responsibility is assessed in each case by expert opinion. If incapacity is established, there is generally no punishment, but the court may impose security measures. For all these groups, the right to control premises can still be enforced at any time by eviction or other means; civil claims remain unaffected.
