Penalty fare
Carriage by devious is in German criminal law, a variant of the offense of fraudulent acquisition services pursuant to § 265a StGB.
- 8.2 Increased carriage charge § 9 VO- ABB
- 8.3 Increased fare to § 12 EVO (excerpt)
- 8.4 jurisprudence
- 8.5 Legal situation in children and adolescents
General
The carriage by devious is one of the four offenses of " Erschleichens of benefits " of § 265a StGB. In addition, the performance of a machine, a telecommunications network and access to an event or a device are protected by this provision. In all cases, there are mass services, which are the law comes to asset protection of those operators, which is not or only random sampling allow for adequate control due to the massive volume customers. Under civil law, the boarding is counted in public transport as an implicit act by which the passenger irrefutable brings his legal binding will to conclude a contract of carriage expressed.
Frequency
Nationwide, the proportion of all bus and rail passengers is estimated at about 3.5 % without a valid travel pass; thereby escape the transport companies in Germany up to 250 million euros annually. Regional, the rate of fare dodgers be quite different, as the following examples show. The Transport and Tariff Association Stuttgart estimated the annual revenue loss due to transport fraudulently to 15 million euros, 3.2 % of the checked users do not have a ticket. In an action about half of the people without a ticket could not demonstrate on site with their personal information, so the police were called in to check their identities.
The Karlsruhe Transport Association reported 1.4% Black drivers that were used in controls by 160 accountants to pay 810,000 euros. The Hohenzollerische Landesbahn caught annually 1,500 deliberate fare dodgers and 1,500 people who have forgotten their personal tickets. The transport association Rhein- Neckar reported for 2001 by 1.93% and for 2010 of 1.18 % controlled users without a ticket. In several hours of total control of all passengers at a subway station in the transport association Rhein- Ruhr 10 % of the passengers did not have a valid ticket.
The police crime statistics ( Germany ) talks under code 515001 for carriage by devious for 2010 by 227,000 appropriate cases, for 2009 from 220,000 cases in 2004 189,000 1998 159,000. For the year 2004 is broken down to 95% of the losses were due to transport fraudulently under 50 euros, the total damage is estimated at 4.3 million euros, the suspects were male, 72%.
Conditions for the application
The offender must intend not to pay the fee. Intention is the purposeful will of the offender to bring about the success of the criminal act. The intention, in turn, is legally a header first degree. At the " dodging " the will of the perpetrator is to be free sneak a ride performance, making it damages the ability of the transport company. However, should anyone be forgotten month, duration, network or company ticket public transport and it can be found on inspection not show an intention, however, is not available. The criminal liability under § 265a StGB presupposes an asset damage is that the offender takes the performance of a transport company to complete, without paying them. Sense of duty, to take away the ticket is the burden of proof, which can be seen in the fact that not the transport operation, the non-payment, but the passenger must prove by entrainment of the ticket, the payment of the consideration.
The term used by the law of " fraudulently " is interpreted by the Supreme Court to the effect that the wording of the rule requires neither evasion nor the elimination of existing security measures or regular inspections. After his general sense of the word, the term " fraudulently " which only provides for achieving a success on unlawful, unfair or immoral ways. Surreptitiously contained at most a " deception similar" moment such that the aspired performance may be purchased with unobtrusive approach; is not necessary that the offender overcome about a concrete guard or bypass a control needs. The Federal Constitutional Court ( Bundesverfassungsgericht ) holds for unjustified enrichment " of each of the order contradictory behavior is sufficient by the offender brings in the enjoyment of power and in which he surrounds himself with the semblance of regularity ."
The previously prevailing view, according to which the offender only bring with a similar deception or manipulative behavior in the enjoyment of the transport service, was not enough from the Federal Court. He notes instead that the wording of the rule requires neither evasion nor the elimination of existing security measures or regular inspections. Since then sufficient that the perpetrator is a transport used unjustified and has been generally surrounds with the impression that he fulfills the conditions required by the terms and conditions of the operator preconditions.
However, not every unauthorized receipt of a transport service are referred to as devious, as when the locking device of a machine fails or if it is used by the perpetrators of violence.
Prosecution
The fraudulent acquisition of low- power (up about 50 Euros ) shall only be prosecuted upon request unless that law enforcement authority holds because of the particular public interest in prosecution an intervention of its own motion offered ( § 265a paragraph 3 in conjunction with § 248a of the Criminal Code ). The criminal complaint can - but need not - put the the " dodging " affected carriers. The prosecutor decides after investigation, whether there are reasonable suspicion exists and is charged against the accused, or whether the proceedings shall be closed due to low fault or due to lack of public interest in the persecution. The law enforcement authorities accuse Displaying surreptitious transport for repeat offenders.
Criminal consequences
Does the offender conditions, he shall be liable 265a of the Penal Code with imprisonment up to one year or a fine pursuant to §. In addition, he has also threatened when repeating an exclusion of the transport undertaking concerned, so in disregard of the offense of trespassing ( § 123 StGB) is realized. The ban may be disposed of as desired and is not even bound to justifiable failure like " dodging ". In the public sector a granted ban is an administrative and needs to fulfill its effectiveness formal and substantive requirements.
To have been falsely, already checked during an inspection Claimed black on the road or it shows an incorrect, invalid or valid only for certain zones ticket before he can be prosecuted make for fraud (Penalty: fine or imprisonment up to five years). In these cases, § 265a StGB is subsidiary. If an incorrect ticket still may be in the alternative of making use of a false or forged document a forgery.
Legal History
The provision of § 265a StGB goes so far as it represents the " dodging " punishable on Article 8 of the Criminal Law Amendment from June 28, 1935 back. You should especially close the gap that resulted in the fraudulent acquisition of mass services on the application of § 263 StGB. The provision of § 265a of the Criminal Code introduced corresponded almost literally the § 347 of the Draft General German Penal Code of 1927 ( " Erschleichen free admission " ), in its ruling stated in part: " Erschleichen is not synonymous with soft start. Even someone who is open through the barrier, thereby but so behaves as if he had paid the price of admission, surreptitiously entry. Even a merely passive behavior can satisfy the conditions defined Erschleichens; as well as the passenger of a streetcar comes under the threat of punishment to take care of against an existing obligation not to obtaining a ticket. "
As far as the literature aspects of the decriminalization of " Black driving" are mentioned, this is for today's interpretation of § 265a StGB irrelevant. In parts of the literature, the above judgments are criticized in some quarters.
The previous civil case law on the " dodging " does not violate the Federal Constitutional Court, according to the constitutional principle of legality under Article 103 § 2 of the Basic Law. After that, it is not constitutionally objectionable when the dominant view in the literature as well as civil jurisdiction under the fraudulent acquisition of carriage of each order goes contradictory behavior by the offender brings in the enjoyment of power and in which he deals with the semblance of regularity surrounds.
Criminology and social backgrounds and Facts
Criminology
The transport surreptitiously is often an offense of juvenile delinquency. The methods end up depending on the region already in the second or third violation before the juvenile courts. In general, the first violation will be adjusted by the prosecution.
The carriage is surreptitiously criminological counted for petty crime or mass and is also a control offense, which is characterized by very high detection rates and a high number of unreported cases.
Dodging as form of protest
In the context of protests against fare increases and for a "right to mobility " is and dodging was used as a political form of protest. Through the open denial of the fare demands for " socially acceptable " fares or even a zero tariff will, that is to be a free public transport underlined. For this purpose, and is organized communal dodging and openly propagated. In some cities, special black driver insurance offered by Dodger organizations through which the payment is to be adopted jointly by fines.
Fare Acher uplift
The increased transport rates, partly also increased fare ( as in the EVO) or fare Acher elevation ( as in the DB AG) called, concessions and on buses and trains, the railways are not ( PbefG transports ) pursuant to § 9, paragraph 3 VO ABB at the railway traffic in accordance with § 9, paragraph 3 EVO 7 euros if the passenger can prove within a week from the determination date in the management of the entrepreneur that he was the holder of a valid personal time card at the time of the determination.
Regardless of the offense and its penalty require many carriers a fee, which is usually referred to as "increased fare ." It is merely a civil claim which make the transport company for a promotion fraudulently on a regular basis against the perpetrators claimed. Whether this requirement as a penalty, as a legal obligation or indeed as ( agreed ) fare is to characterize, is as controversial as the question of whether any constitutional legal basis. The railway companies support the claim regularly to § 12 EVO and its respective Terms and Conditions. § For the bus - and tram 9 to the Regulation on General Conditions of Carriage ( partly as BefBedV, partly as VO- ABB abbreviated ), adopted by the Federal Ministry of Transport on the basis of § 57 Section 1 No. 5 Passenger Transport Act with the consent of the Bundesrat.
§ 12 EVO conforms to § 12 of the Conditions of Carriage of the Deutsche Bahn AG on 12 September 2007. Nord - Ostsee-Bahn GmbH regulates the " increased fare " in § 9 of their conditions of carriage.
Increased travel charge § 9 VO- ABB
The Increased transportation charge ( EBE ) in accordance with § 9 VO ABB is charged for trips that are governed by the Passenger Transport Act ( Passenger Transport Act ). These are the public transport without the railroad, such as bus, trolley bus, tram, monorail, subway. The scheme is there: " ( 1) A passenger is obliged to pay an increased transport rates obliged if he has first to not have a valid ticket purchased, second is a valid ticket has procured, but these can not show in a review, 3 the ticket does not or has not canceled forthwith pursuant to § 6 para 3 or 4 or devalue let the ticket does not present upon request for examination or surrenders. A prosecution in criminal or administrative offense proceedings shall remain unaffected. The provisions in paragraphs 1 and 3 shall not be applied when the procuring, or the cancellation of the ticket was omitted for reasons which the passenger is not responsible. ( 2) In the cases under paragraph 1, the entrepreneur is an increased transport rates rise up to 40 euros. However, it can raise double the carriage charge for one-way on the distance traveled by the passenger route, provided that thereafter results in a higher amount than pursuant to sentence 1; Here, the increased transport rates after the point where the line will be charged when the passenger the distance can not prove. ( 3) The increased transport rates reduced in the case of paragraph 1 No. 2 to 7 euros if the passenger can prove within a week from the Determination Date in the management of the entrepreneur that he was the holder of a valid personal time card at the time of determination. (4 ) When using invalid time cards further claims by the contractor shall remain unaffected. " The provision in § 9 VO ABB differs in content hardly of the provision in § 12 railway transportation regulations (EVO ), which applies to rail transport. The specific terms and conditions of enterprises and associations that are allowed in accordance with § 1 paragraph 1 L - ABB, usually take over the wording of the federal regulation. Since this EBE is therefore agreed not only contractual but its legal basis in a material law, minors are required to make payment if the company not only to its own conditions of carriage ( then contractually entitled ), but on this federal regulation ( then legal obligation ) convene.
Increased fare to § 12 EVO (excerpt)
" The traveler is to pay a higher fare obliged if it is not provided at time of travel with a valid ticket [or] has a valid ticket purchased, but can not produce it on an examination of tickets ... The increased fare ... is twice the usual fare for the distance traveled by the passenger route, at least 40 euros. The increased fare can be calculated for the whole distance traveled by the train track when the traveler fails to show that he has traveled a shorter distance. The increased driving price will be reduced to ... 7 euros if the traveler demonstrates within a week from the Determination Date at a railway station of the railway conveyed that he was the holder of a valid driver's license at the time of determination. "
Court
District courts have already recognized several times with § 12 Section 1 EVO unconstitutional; this is possible because it is a sub-statutory legal norm and no formal law. The standard remains valid subject to the Federal Constitutional Court by way of judicial review proceedings § 12 Section 1 explains EVO unconstitutional.
The District Court of Essen decided as early as 1979:
" ... § 12 EVO ... This ordinance is at least insofar as they pay the penalty ... which also provides for cases not intentional Erschleichens of the transport service, void for violating the Constitution and laws of higher rank. The provisions of § 12 ... EVO violates ... against the principle of equality of Article 3 of the Basic Law, because they treated illegally different situations the same. It is put on the same level with the forgetful and the ignorant black on the road. The bahnbenutzende man should be dressed with civil penalties on the machine. It is irrelevant because it disregards basic distinctions of civil law and the dignity of man, to treat the, devious ' and the ' Nachlösenwollen without prompting ' the same. "
The district court concluded Aachen in 1992 this judgment, by also recognized the provision unconstitutional. According to the reasoning of the Court, it may
" To be determined whether the defendant was acting in good faith upon boarding to be in possession of a valid ticket. The claim of the applicant fails any case, the fact that § 12 para 1 EVO violates the prohibition of excess and is therefore ineffective. § 12 para 1 ... EVO is primarily intended to prevent undeclared trips. By § 12 ... EVO neither differentiated between cases of intentional fraudulent acquisition and transport cases unvorsätzlichen driving without a valid ticket, nor the traveler at least keeps open the possibility of exonerating evidence, the provision on the target overshoots to counter deliberate dodging. "
The District Court of Hannover decided by judgment of 24 February 2010 that dodging also punishable according to § 265a StGB is when a T -shirt " I'm going black " worn with the imprint.
Legal situation in children and adolescents
Children and adolescents under 18 years of age, since they are not or only limited legal capacity, in the case of black driving not be forced by the transport undertaking to pay the increased transport of money, as far as the transport ratio of civil nature. Children under 7 years of age may enter into a contract of carriage not chargeable ( § 104, § 105 BGB), adolescents 7-18 years of age is not effective without parental consent ( § 106, § 107 BGB). If the drive is not already one ( also implied ) consent covered (for example, if the path to school is carried out regularly by bus or train - but this is likely only when driving with valid ticket ) and there is no subsequent approval, then a contract to which the carriers could rely, because § 108 BGB becomes effective.
An enrichment claim, however, comes into consideration, § 812 paragraph 1 sentence 1, 1st or 2nd Alt. , § 818 BGB, just as well as a tort claim for breach of a Protection Act, § 823 para 2 BGB in connection with § 265a StGB (see " flight case "). The fact that the damage or the value of enrichment come up to the height of the elevated transport money, it is doubtful - must prove this in any case, the transport company. The parents themselves are then at least not liable to pay damages if they have complied with their duty of supervision, § 832, § 823 BGB in conjunction with § 265a StGB. Contractually they adhere just as the children and young people.
Since the carrier may not indicate that fact and also in children and adolescents with the usual methods, the increased transport rates rise ( first reminder, second reminder, collection agency, lawyer, legal dunning with the possibility of contradiction ), pay the children and young people or parents often willingly without any legal basis.
The possibility of prosecution by the public prosecutor due to transport fraudulently as a juvenile shall not be affected, however, unaffected. Likewise, the carrier may exclude young people from the use of its transport -limited.