Criminal Trespass

Criminal trespass means the unauthorized entry into a protected space that is clearly assigned to a private or professional domain. All areas where someone is authorized to decide on access are protected. Failure to leave despite being requested is also covered.

objective elements of the offence

The objective elements of criminal trespass cover any unauthorized entry into a protected space as well as failure to leave despite a clear request. The spatial privacy of a person is protected, meaning the area in which they themselves decide who may enter. It does not matter who owns the space. What is crucial is that the area is clearly demarcated and the will of the authorized person is recognizably against entry. For the basic form of the offense, mere physical entry without authorization is sufficient.

In addition to this basic form, there is a more severe variant. This occurs when entry is forced with violence or under threat of violence and special circumstances are present that make the act more dangerous. These include, for example, the planned exercise of violence inside, the carrying of weapons or similar objects to overcome resistance, or the joint violent entry of several persons. In these cases, the risk to persons and property is significantly higher, which is why the conduct is punished more severely.

Steps of legal assessment

Perpetrator:

Any person who enters a protected space without authorization or fails to leave despite being requested can be an offender.

Object of the Offense:

Protected are apartments, houses, enclosed spaces of daily life or work, as well as fenced-in areas that offer a person spatial privacy. In the more severe variant, public service premises or professionally used areas are also included.

Act:

The act consists of entry without permission or lingering against the express will of the authorized person. In the qualified form, it is added that the entry is forced through the use of violence or by threat of violence and an aggravating circumstance exists, such as carrying weapons, planned violence against persons or property, or a joint violent action by several participants.

Result of the Offense:

No specific damage needs to occur. The offense is already complete as soon as the peace of the home is violated, i.e., the protected area is entered or not left against the will of the authorized person.

Causality:

The unauthorized conduct must have caused the disturbance of the peace of the home. In the case of qualified criminal trespass, the violence or threat must also have been causal for the entry.

Objective Attribution:

The conduct is attributable if the offender has created the legally disapproved disturbance of the spatial area and precisely this disturbance materializes. In the more severe variant, the increased danger resulting from the use of violence, carrying of weapons, or group action must also materialize in the facts.

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Distinction from other offences

The offense of trespassing according to § 109 StGB (German Penal Code) covers conduct by which a person using force or threatening to use force forces entry into a dwelling or other protected space, or in the qualified cases of paragraph 3, under the same circumstances, enters a house, a dwelling, a closed professional or official room, or an enclosed area. The focus is on the spatial violation of the domestic peace and thus on the protection of the private or professional sphere of the entitled person. The injustice does not arise from damage to property, but from the disregard of the will to access and the resulting disruption of the protected area.

• § 105 StGB – Coercion: Damage to property protects the substance and functionality of things, while trespassing secures the spatially protected area of a person. If a door, window, or fixture is damaged during entry, both offenses may be present simultaneously. The trespassing is not superseded because the protection of the domestic peace exists independently of damage or financial disadvantage.
• § 129 StGB – Burglary: In the case of burglary, the removal of other people’s property is the focus, whereby entering with tools or overcoming obstacles has a qualifying effect. § 109 StGB is to be distinguished from this, as it only sanctions the disturbance of the protected spatial sphere. If both elements of the offense occur during entry, the offenses exist side by side; there is no displacement, as § 109 StGB is not a property offense.

Concurrences:

Genuine Concurrence:

True concurrence exists when further independent offenses are added to the violent entry, such as coercion, dangerous threat, bodily harm, property damage, or theft. Criminal trespass does not supersede these offenses but regularly stands independently alongside them, because different legal interests are affected.

Spurious Concurrence:

Supersession due to specialty is only considered if another norm fully covers the entire wrongfulness of the entry. This is rarely the case, as neither property offenses nor coercion or violent crimes encompass the protection of the peace of the home as an independent offense. Therefore, § 109 StGB generally remains independently applicable.

Multiple Offenses:

Plurality of offenses exists when the offender repeatedly and in independent sequences enters or forces entry into protected spaces. Each independent disturbance of the peace of the home constitutes a separate offense, provided there is no single continuous course of events.

Continued Action:

A single offense is assumed if the offender in close temporal connection enters multiple times or continuously maintains the disturbance of the peace of the home, for example, through continued threats or repeated violent entry into the same area. The offense ends as soon as the disturbance no longer persists.

Burden of proof and evaluation of evidence

Public Prosecutor’s Office:

The public prosecutor’s office must prove that the accused unlawfully entered a protected space or failed to leave despite being requested and thereby violated the peace of the home. Decisive is the proof of a concrete spatial encroachment that occurred against the recognizable will of the authorized person. It is not about misunderstandings, accidental overstepping, or socially customary entries, but about objectively unauthorized conduct that impairs the protected area.

It must be proven, in particular, that

• the area in question was a protected space in the sense of criminal trespass,
• the accused entered without authorization or failed to leave,
• the will of the authorized person was recognizably opposed,
• the disturbance is objectively attributable to the accused.

In the qualified form of the offense, it must additionally be proven that the entry was forced under violence or threat of violence and one of the aggravating circumstances (e.g., carrying weapons or joint violent entry) was present.

Court:

The court examines all evidence in its overall context and assesses whether the conduct, according to objective standards, was suitable to actually violate the peace of the home. The central question is whether the entry or lingering occurred against the clearly recognizable will of the authorized person and whether the conduct, based on the overall picture, is legally to be classified as unauthorized.

In doing so, the court particularly considers:

• the nature of the affected space and its actual demarcation,
• the authorization status and the recognizable will of the affected person,
• whether the entry was socially customary or to be regarded as a clear transgression,
• whether the accused should have recognized that they were not permitted to enter,
• whether the conduct is in close temporal or local connection with a request to leave.

The court clearly distinguishes from mere misunderstandings, incidental touching of common areas, or situations without a recognizable opposing will.

Accused Person:

The accused person bears no burden of proof. However, they can raise reasonable doubts, particularly regarding

• the question of whether the affected area was actually a protected space,
• whether permission or toleration existed or could be assumed,
• whether the opposing will of the authorized person was clearly recognizable,
• whether the conduct is to be classified as socially customary or unintentional,
• whether requests to leave were clear and understandable.

It can also demonstrate that certain events were not violent, only short-term, accidental, or, due to the situation, not recognizable as prohibited.

Typical Assessment

In practice, the following evidence is particularly important for § 109 of the Austrian Criminal Code:

• Video recordings, surveillance systems, or photos documenting the entry,
• Witness statements regarding access authorizations, requests, and the recognizable attitude of the authorized person,
• Messages, house rules, or prior agreements from which the access situation arises,
• Documentation of the use of violence or threats (in the qualified form),
• technical or written evidence regarding the temporal sequence of entry and possible requests,
• spatial documents or plans that clarify the demarcation of the protected area.

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Practical example

• Forcing entry by threatening violence: The perpetrator demands entry into the apartment of a known person who expressly refuses him entry. He then threatens to kick in the door or inflict physical violence on the person present. Fearing the threatened violence, the victim opens the door, allowing the perpetrator to force entry. The intervention directly affects the protected domestic sphere and leads to a clear violation of the right to domestic peace. The act is already completed by the forceful or threatening forcing of entry, regardless of whether the perpetrator subsequently commits further offenses.
• Entering enclosed private property while carrying a means of overcoming resistance: The perpetrator climbs over the fence of a residential building and gains access to the garden in order to then advance into the house area. He carries a tool with him that he intends to use, according to his own idea, if someone prevents him from entering. The victim does not have to react to the intrusion; the decisive factor is that the perpetrator enters a protected private area without authorization and carries a means intended to overcome expected resistance. The legal violation lies in the forced intrusion into the spatial privacy, which is particularly protected against violent access.

These examples show that a breach of domestic peace pursuant to § 109 StGB exists if someone forces entry into a dwelling or a protected space by force or threat of force, or under qualifying circumstances enters the spatial protection area of another.

subjective elements of the offence

The subjective element of § 109 StGB requires intent. The perpetrator must know that he is entering a protected space without authorization or does not leave despite being asked to do so, and he must also want this unauthorized behavior. It is sufficient that he recognizes that the area in question is assigned to a person who decides on access and that his behavior is against their recognizable will.

The offender must therefore understand that their entry or lingering in the overall picture constitutes a deliberate violation of the peace of the home and is typically suitable to impair the privacy or spatial protected area of the authorized person. It is crucial that the disturbance of the peace of the home is intended; a mere accidental or socially misunderstood entry is not sufficient.

No subjective elements exist if the offender genuinely believes they are authorized to enter, for example, because they assume an invitation, tacit permission, or a misconception about jurisdiction. Likewise, there is no intent if they could reasonably assume that their stay is tolerated or that there is no clear opposing will of the authorized person.

Ultimately, intent is present when someone knows and deliberately aims to enter or not leave a protected space against the will of the authorized person and thereby violate spatial privacy. In the more severe variant of the offense, the intent must additionally relate to the violent or threateningly forced manner of entry and to the respective aggravating circumstances (for example, carrying weapons or joint action by several persons).

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Culpability and mistakes

Mistake of prohibition:

A mistake of prohibition only excuses if it was unavoidable. Anyone who engages in conduct that recognizably interferes with the rights of others cannot claim that they did not recognize the illegality. Everyone is obliged to inform themselves about the legal limits of their actions. Mere ignorance or a reckless error does not absolve one of responsibility.

Principle of culpability:

Only those who act culpably are punishable. Intentional offenses require that the perpetrator recognizes the essential events and at least accepts them as a possibility. If this intent is lacking, for example, because the perpetrator mistakenly assumes that their behavior is permitted or is voluntarily supported, at most negligence exists. This is not sufficient for intentional offenses.

Incapacity to be held accountable:

No guilt is attributed to someone who, at the time of the offense, was unable to recognize the injustice of their actions or to act in accordance with this insight due to a severe mental disorder, a pathological mental impairment, or a significant inability to control their actions. In case of corresponding doubts, a psychiatric assessment will be obtained.

Excusable state of necessity:

An excusable state of necessity may exist if the perpetrator acts in an extreme situation of duress in order to avert an acute danger to their own life or the lives of others. The behavior remains unlawful but can have a mitigating or excusing effect if there was no other way out.

Putative self-defense:

Anyone who mistakenly believes that they are entitled to an act of defense acts without intent if the error was serious and comprehensible. Such an error can reduce or exclude guilt. However, if a breach of duty of care remains, a negligent or mitigating assessment comes into consideration, but not a justification.

Extinction of punishment and diversion

Diversion:

Diversion is generally possible for criminal trespass. The offense protects the peace of the home and spatial privacy, and the degree of culpability depends primarily on the nature of the entry, the intensity of the disturbance, and the personal responsibility of the offender. In cases of minor transgressions, clear insight, and no prior convictions, a diversionary resolution is regularly considered in practice.

However, the clearer a systematic, aggressive, or violent approach is recognizable, or the higher the potential for danger of the act, the less likely a diversion becomes, especially if the entry was forced with violence or under threat.

Diversion may be considered if

• the culpability is minor,
• the disturbance of the peace of the home was only brief or not severe,
• no persons were injured or significantly threatened,
• there was no systematic or repeated entry,
• the facts are clear, manageable and unambiguous,
• and the offender is immediately insightful, cooperative, and willing to make reparation (for example, through an apology, compensation for collateral damage, or commitments to keep distance).

If diversion is considered, the court can order monetary payments, community service, supervisory instructions, or victim-offender mediation. Diversion leads to no conviction and no criminal record entry.

Exclusion of Diversion:

Diversion is excluded if

• the entry was forcibly compelled or involved a clear threat,
• the act was targeted, planned, or intimidating,
• several persons in the protected area were endangered,
• there is a prolonged continuous or repeated entry,
• weapons or dangerous objects were carried,
• the conduct led to significant physical, psychological, or security-relevant consequences,
• or the overall conduct constitutes a serious violation of the privacy and integrity of the authorized person.

Only with clearly minimal culpability and immediate insight can it be examined whether an exceptional diversionary procedure is permissible. In practice, diversion remains possible for criminal trespass, but is rare in violent or intimidating constellations.

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Sentencing and consequences

The court determines the penalty based on the extent of the disturbance of the peace of the home, the nature of the entry, and how severely the act has impaired the privacy or security of the affected person. Decisive is whether the offender acted repeatedly, purposefully, or in an intimidating manner over a longer period and whether the conduct caused a lasting burden or impairment of the protected living area.

Aggravating Factors Exist in Particular If

• the intrusion occurred repeatedly over a longer period of time,
• there was a systematic or particularly persistent entry against the will of the entitled party,
• persons inside were specifically endangered or massively unsettled,
• Violence or threats were used or threatened,
• despite clear requests, the intrusion continued or the person did not leave,
• a significant psychological burden has occurred due to the violation of privacy,
• or relevant prior convictions exist.

Mitigating Factors Include

• a clean record,
• a full confession and recognizable insight,
• an immediate cessation of the deceptive behavior,
• Restitution efforts, such as repairs or apologies,
• Particular psychological stress on the perpetrator,
• or an excessively long duration of proceedings.

The court may conditionally suspend a prison sentence if it does not exceed two years and the perpetrator has a positive social prognosis.

Penalty Range

In its basic form, trespassing is punishable by imprisonment of up to one year or a fine of up to 720 daily rates. This penalty framework applies to unauthorized entry that is enforced by force or threat of force, provided that there are no qualifying circumstances.

In this basic form, trespassing is an authorization offense. This means that prosecution can only be initiated if the person concerned expressly declares that they wish to be prosecuted. Without this authorization, no proceedings will be conducted.

For the more serious variant of trespassing, the penalty is increased to imprisonment of up to three years. This form exists if the intrusion is enforced by force or threat and an additional aggravating circumstance is met, such as carrying a weapon, a planned use of force inside, or the violent action of several people. In these cases, the offense is not an authorization offense, therefore the prosecution takes place ex officio.

A subsequent apology, a settlement, compensation for damages, or the voluntary termination of the behavior do not change the statutory penalty framework. Such circumstances only have an effect within the scope of sentencing.

Monetary Penalty – Day-fine System

Austrian criminal law calculates monetary penalties according to the day-fine system. The number of day-fines depends on the guilt, the amount per day depends on the financial capacity. In this way, the penalty is adapted to the personal circumstances and yet remains noticeable.

• Range: up to 720 day-fines – at least 4 euros, at most 5,000 euros per day.
• Practical formula: Approximately 6 months imprisonment corresponds to around 360 day-fines. This conversion serves only as orientation and is not a rigid scheme.
• In case of non-payment: The court can impose a substitute custodial sentence. As a rule, the following applies: 1 day of substitute custodial sentence corresponds to 2 day-fines.

Note:

In the case of trespassing, a fine is primarily considered if no qualifying circumstances are present and the act was committed without significant use of force.

Imprisonment and (partially) suspended sentence

§ 37 StGB: If the statutory penalty extends up to five years, the court may impose a fine instead of a short prison sentence of no more than one year. This possibility also exists in the case of trespassing, as the basic offense provides for imprisonment of up to one year or a fine, and the qualified form has a penalty range of up to three years. In practice, § 37 StGB is applied rather cautiously if the behavior was particularly stressful, violent, or intimidating. In less serious cases, such as a short-term and non-aggressive disturbance of domestic peace, § 37 StGB may well be applied.

§ 43 StGB: A prison sentence can be conditionally suspended if it does not exceed two years and the perpetrator has a positive social prognosis. This also applies to trespassing. Conditional suspension is granted more cautiously if violence or threats were used during the act, if persons inside were massively unsettled, or if there is a repeated intrusion. A conditional suspension is particularly realistic if the behavior is less serious, arose situationally, or no lasting burden has occurred for those affected.

§ 43a StGB: The partially conditional suspension allows a combination of an unconditional and a conditionally suspended part of a prison sentence. It is possible for penalties over six months and up to two years. Since penalties in the middle range of the penalty framework can occur in the case of qualified trespassing, § 43a StGB is regularly considered. However, it is applied much more cautiously in the case of particularly serious circumstances, when carrying weapons, or when several people forcibly enter.

§§ 50 to 52 StGB: The court may also issue instructions and order probation assistance. In particular, refraining from the protected area or from the person concerned, care or therapy programs, as well as measures for conflict avoidance or behavioral stabilization are possible. The goal is lasting legal probation and the avoidance of further transgressions. Particular attention is paid to the protection of spatial privacy and the clear prevention of further unauthorized approaches or attempted intrusions.

Jurisdiction of the courts

Subject-matter Jurisdiction

Due to the penalty range of up to one year imprisonment or up to 720 daily rates fine, the district court is generally responsible for trespassing. Offenses with such a low penalty fall within the first-instance decision-making competence of the district courts according to the statutory rules of jurisdiction.

However, since trespassing has a qualified variant with a higher penalty (up to three years imprisonment), there is a scope of application for the regional court as a single judge for these cases. A lay judge court is not considered because a higher penalty would be legally required for this.

A jury court is excluded because trespassing does not allow for life imprisonment and therefore the legal requirements are not met.

Local Jurisdiction

The court of the place of the offense is competent. Particularly relevant is

• where the unauthorized entry was made,
• where the remaining despite request took place,
• where violence or threat was used (in the qualified variant),
• or where supplementary actions were taken that are essential for the intrusion.

If the place of the offense cannot be clearly determined, the jurisdiction is based on

• the residence of the accused person,
• the place of arrest,
• or the seat of the competent public prosecutor’s office.

The proceedings are conducted where a practical and orderly implementation is best guaranteed.

Hierarchy of Courts

An appeal to the regional court is possible against judgments of the district court. The regional court decides as a court of appeal on guilt, punishment and costs.

Decisions of the regional court can then be challenged by appeal on points of nullity or further appeal to the Supreme Court, provided that the legal requirements are met.

Civil claims in criminal proceedings

In the case of trespassing, the victim themselves or close relatives can assert civil claims directly in the criminal proceedings as private parties. Since the act often leads to damage, consequential costs or personal impairments, the following claims in particular come into consideration:

• Compensation for damaged or destroyed objects (e.g. doors, windows, furniture)
• Compensation for repair and restoration costs
• Compensation for necessary consequential costs such as locksmith services, emergency closures or security measures
• Compensation for special expenses, such as for advice, security measures or organizational measures
• Compensation for immaterial damages, insofar as a concrete psychological impairment is demonstrable

The private party joinder suspends the statute of limitations for all asserted claims as long as the criminal proceedings are pending. Only after a legally binding conclusion does the limitation period begin to run again, insofar as the claim has not been fully awarded.

Voluntary reparation for damages, such as a sincere apology, financial compensation, or active support for the affected person, can have a mitigating effect on the sentence, provided it is timely, credible, and complete.

However, if the perpetrator has entered rooms without authorization systematically, repeatedly or over a longer period of time, used violence or threats or caused a particularly intensive disturbance of privacy, a later compensation will usually largely lose its mitigating effect. In such constellations, a subsequent settlement cannot decisively relativize the injustice.

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Overview of criminal proceedings

• tart of investigation: formal suspect status upon concrete suspicion; from that point onward, full rights of the accused apply. In the case of trespassing under § 109 para. 1 StGB, however, the proceedings only begin after the authorization of the entitled party has been submitted, as prosecution is otherwise not permitted.
• Police / Public Prosecutor: the public prosecutor directs the proceedings, the criminal police conduct the investigation; objective: dismissal of the case, diversion, or indictment.
• Interrogation of the accused: prior instruction on rights; involvement of a defense attorney leads to postponement; right to remain silent remains unaffected.
• Access to the case file: available at the police, public prosecutor’s office, or court; also includes evidence items (insofar as the purpose of the investigation is not jeopardized).
• Main hearing: oral taking of evidence and judgment; decision on civil claims joined to the criminal proceedings.

Rights of the accused

• Information & defense: right to notification, legal aid, free choice of defense counsel, translation assistance, and submission of evidence motions.
• Silence & counsel: right to remain silent at any time; if a defense attorney is requested, the interrogation must be postponed.
• Duty to inform: prompt notification of suspicion and rights; exceptions only permitted to safeguard the purpose of the investigation.
• Practical access to files: investigation and trial records; access by third parties is restricted to protect the accused.

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Practical guidance and behavioural advice

1. Maintain silence.
   A brief statement is sufficient: “I am exercising my right to remain silent and will first speak with my defense counsel.”
   This right applies from the very first interrogation by the police or the public prosecutor.
2. Contact defense counsel immediately.
   No statement should be made without access to the investigation files. Only after reviewing the files can the defense assess which strategy and evidence preservation measures are appropriate.
3. Secure evidence immediately.
   Obtain medical reports; take photographs with date and scale and, where appropriate, X-ray or CT images. Store clothing, objects, and digital records separately. Prepare a witness list and contemporaneous recollection notes within two days at the latest.
4. Do not contact the opposing party.
   Your own messages, calls, or posts may be used as evidence against you. All communication should take place exclusively through your defense counsel.
5. Secure video and data recordings in time.
   Surveillance videos from public transport, venues, or property management systems are often automatically deleted after only a few days. Requests for data preservation must therefore be submitted immediately to the operators, the police, or the public prosecutor’s office.
6. Document searches and seizures.
   In cases of house searches or seizures, you should request a copy of the warrant or record. Note the date, time, persons involved, and all items taken.
7. In case of arrest: make no statements about the matter.
   Insist on immediate notification of your defense counsel. Pre-trial detention may only be imposed if there is strong suspicion of guilt and an additional ground for detention. Less severe measures (e.g., pledge, reporting duty, contact ban) must take precedence.
8. Prepare compensation for damages strategically.
   Payments or offers of reparation should be handled and documented exclusively through defense counsel. Structured compensation for damages has a positive effect on diversion and sentencing.

Your Benefits with Legal Assistance

Cases of trespassing concern interventions in the spatial privacy, the personal safety and often also the relationship of trust between the parties involved. The crucial question is whether the behavior actually constitutes an unauthorized intrusion or failure to leave despite request and whether the opposing will of the entitled party was recognizable. Even small differences in the process, in the communication or in the spatial situation can significantly change the legal assessment.

Early legal representation ensures that all relevant processes such as requests, reactions, spatial demarcations, possible misunderstandings and any elements of violence or threat are correctly documented and legally classified. Only a structured analysis shows whether a punishable trespassing has actually occurred or whether individual actions are misunderstood, unclearly communicated or legally not to be regarded as unauthorized intrusion.

Our law firm

• examines whether the legal requirements of § 109 StGB are met
• analyzes the process, local conditions and communication for exculpatory or contradictory aspects
• protects against one-sided representations and premature evaluations
• develops a clear defense strategy that presents the actual process in a comprehensible manner

As specialists in criminal law, we ensure that the accusation of trespassing is precisely examined, realistically assessed and the proceedings are conducted on a complete and well-documented factual basis.

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FAQ – Frequently Asked Questions

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