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For most traffic related offences in Germany, eg: illegal parking, driving intoxicated and speeding, the punishment is a fine. But, if you enter the public transprot without ticket, then you are liable to jail time.

Can someone explain what the rationale is to increase the punishment of getting on public transport without a ticket than the driving fines?

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  • 2
    Questions about why politicians made particular decisions would probably be more on-topic at Politics.
    – Sneftel
    Commented Feb 26, 2023 at 13:08
  • 3
    Excessive speeding will get you to jail, see Criminal Code §315d.
    – PMF
    Commented Feb 26, 2023 at 14:28
  • @Sneftel, it is not actually a question of different punishment, it is a quite technical effect of unpaid fines hitting certain demographics more than others.
    – o.m.
    Commented Feb 26, 2023 at 15:53
  • @Sneftel in this case, it's a growth from history, and the jailtime is the absolute last ditch punishment
    – Trish
    Commented Feb 26, 2023 at 18:29

3 Answers 3

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Because that's the law since 1935!

StGG§ 265a (eng) declares, that it is a criminal offense to take transportation without a ticket and not wanting to pay.

(1) Wer die [...] die Beförderung durch ein Verkehrsmittel [...] in der Absicht erschleicht, das Entgelt nicht zu entrichten, wird mit Freiheitsstrafe bis zu einem Jahr oder mit Geldstrafe bestraft, wenn die Tat nicht in anderen Vorschriften mit schwererer Strafe bedroht ist.

(1) Whoever [...] uses a means of transportation [...] with the intention of not paying the fee therefor incurs a penalty of imprisonment for a term not exceeding one year or a fine, unless the offence is subject to a more severe penalty under other provisions.

But how come transportation fares are in the same paragraph as tricking a vending machine into selling you an item or phones to call without paying the full or any fee? In this case, it's history:

§265a was first enacted in 1935, targeting mainly public telephones and vending machines, because those could be tricked by modifying 2 pfennig coins to have the diameter of 10 pfennig coins. The wording was quickly broadened to encompass any machinery controlling entry, but not all sorts of transportation (e.g. a taxi). But where did this come from? Well, the need for the law came from a problem the lawmakers and justice system faced: Because no human was tricked into letting people use the machine for less than the price or nothing at all, it wasn't fraud, because fraud was defined to interacting with a human in such a way. So there had to be a separate offence that targeted tricking machinery. When enacted, Tickets and ticket vending machines were in the scope of the paragraph from day one, as ticket sales or access to the train in many places was handled by automatic machines already or you could buy pre-paid ticket booklets/strips which would then be stamped and devalued in the transportation or at the station.

In 1953, the scope was broadened to any use of the telecommunication infrastructure without pay, as the upcoming lack of telephone company employees creating a physical connection would mean it wouldn't be fraud anymore, so they used the same reasoning.

Finally, in 1997 the telephone network was renamed communication network, also encompassing the internet and cellphones.

One year or fines

The punishment is one year or fine. In Germany, that is a fine of up to 365 day-values, which then are determined by the wealth and income of the convicted person. If you can't pay or want to pay, you can instead go to prison, each day serving also reducing your fine. That is called Ersatzfreiheitsstrafe. Only in exceptional cases like a massive repeat offender, the sentence would be only jailtime and no fine instead.

Also note that all transport is companies and not conducted by the state (even if the DB is state-owned), and as such it is an Antragsdelikt - the damaged private party has to convince the state attorney that going to court is worth their time. However, it is much better for the transportation company to instead leverage the Terms of Transportation and gain the increased fare - usually at minimum 60 € or multiple transport price, whichever is higher.

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There are a couple of mix-ups and mis-understandings in the question that I would like to clear up, even though some of them have already been addressed directly or indirectly in other answers.

Traffic-related offense

Fare-dodging is not a traffic offense. It is treated more similar to fraud than to speeding or a parking violation. [See Trish's answer for an explanation why a specific offense is needed and fraud is not enough – the short answer is because you can only defraud a human, not a vending machine.]

The actual offense is Erschleichen von Leistungen (literally "sneaking a service", a more precise translation might be "subreption of services").

Traffic offenses lead to fines

For most traffic related offences in Germany, […] the punishment is a fine.

That is technically true. Not just for traffic-related offenses but for all offenses. Most offenses don't carry jail sentences. In fact, that is probably true not just for Germany but most jurisdictions.

However, there are traffic-related offenses that do carry potential jail sentences. For example, willful or reckless endangerment of traffic carries a sentence of up to 5(!!!) years.

Also, not all offenses in traffic are traffic offenses. Nötigung (coercion) is an example of an offense that drivers are convicted of on a regular basis that is not specific to traffic: aggressive tailgating for example is considered to "coerce" the driver in front to do something they wouldn't normally want to do and can be punished as coercion without needing any traffic-specific offense. And obviously, you can be convicted of property damage, assault, assault resulting in death, manslaughter, and murder for your behavior in traffic.

In fact, you can get in serious trouble just for parking tickets. There was a story of a guy who figured out that parking tickets were cheaper than renting a parking space, so every day he illegally parked his car in the same spot, every day he got a ticket, and every day he paid the fine … until his driver's license got taken away on the grounds that he showed blatant disregard for traffic rules and thus was morally incapable of participating in traffic after having received over 150 parking tickets and 20 speeding tickets in less than a year.

Conviction for jail time

While technically fare dodging carries a maximum sentence of one year in prison, most people who go to jail for fare dodging are not actually sentenced to jail time. They are sentenced to a fine but are unable to pay it. [See o.m.'s answer for details.]

And the same thing would happen if you are fined for speeding but can't pay the fine. It just so happens that the social groups who tend to commit fare dodging tend to be more likely to be unable to pay a fine than the social groups who tend to commit speeding. (Getting a driver's license is expensive, and a car even more so, so if you are caught speeding, chances are you have the money to pay a fine.)

Specific to Germany

It is actually not that unusual. For example, the equivalent offense in New York (Theft of Services) carries the exact same 1 year maximum sentence.

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Ersatzfreiheitsstrafe, not Freiheitsstrafe.

The assumption behind the question is not quite correct, and I edited the subject line because of this. There is a problem with prison time for fare evasion, but it is not quite the problem the question describes. The defendants are not sentenced to a Freiheitsstrafe, a prison term. They are sentenced to a fine which gets converted into an Ersatzfreiheitsstrafe, a prison term in lieu of a fine, when they "refuse" to pay. Someone who gets a parking ticket, and who simply ignores every letter and payment request, will also go to jail in the end (§96 OWiG).

As the answer by Trish pointed out, the punishment for fare evasion is normally a fine or up to a year in prison. When a range of punishments like that is given, the courts are supposed to use the maximum only in exceptionally grave circumstances. So if the case goes to court, and if the court finds the defendant guilty, the options are a fine or a prison sentence.

For a first offender, a prison sentence is very unlikely. Even if the defendant was sentenced to prison, it would be very likely that for a first offender, the sentence would be suspended and the offender be put on probation. On top of that, the transport operator has the option of collecting a penalty fare and not filing criminal charges, which is routinely done if the defendant had no prior cases in their transport system. If a defendant gets a prison sentence for fare evasion, it is almost certain that there is a lengthy criminal history. More likely, the sentence is a fine.

But there is a problem with criminal fines in these cases.

The German legal system sees a fine as the lesser punishment, compared to a prison sentence or even a suspended prison sentence. That's somewhat counter-intuitive. A defendant who can leave the courtroom with a suspended sentence faces the risk of having the suspension revoked if he or she offends again, a defendant who gets sentenced to a fine has to pay up. But the theory values freedom over money.

When the court passes a criminal fine, there are two elements to the judgment. The fine consists of a number of day-equivalents (Anzahl der Tagessätze) and the amount per day-equivalent (Höhe des Tagessatzes). The number depends on the severity of criminal responsibility, the amount depends on the wealth of the criminal, and they are multiplied to get a total.

The court can set an amount per day-equivalent between €1 and €30,000. Normally, it is set at 1/30th of the monthly net income, or at €5 for people on welfare. In theory, that means both rich and poor people are equally "chastised" by the fine. The more money they have, the more money it takes to make them "feel the slap" from the justice system. And when the criminal does not pay, the fine is converted into prison time at a rate of one day per day-equivalent. It may be possible to pay in installments, or to do social work instead of paying, but prison is the default. Anything else needs to be arranged, which requires at least a passing familiarity with the legal system.

In practice, often it does not work out that way. A typical sentence for fare evasion is around 30 day-equivalents.

  • Someone with a monthly income of €10,000 gets sentenced to 30 times €330 or so (the court would not use fiddly decimal points in the sentence). A good lawyer and a good tax advisor might even bring it down a little, but let's ignore that for this example. He or she can pay €9,900 or spend 30 days in prison. A defendant with such an income is extremely likely to be able to pay, either from savings or by taking a loan.
  • Someone on welfare might get sentenced to 30 times €5. He or she can pay €150 or spend 30 days in prison. But a defendant on welfare is not likely to have €150 in the cookie jar. A good lawyer might be able to argue for a lower amount per day-equivalent, but the defendant probably won't have a good lawyer who spends an hour to make the case that the fine should be lower by a couple dozen Euros. Either the defendant borrows from friends or family, or the defendant goes to prison, or the defendant arranges to pay in installments, or the defendant arranges the option to do social work in lieu of the fine. Such a defendant is less likely to be able to pay than the defendant in the first bullet point.
  • A homeless drug addict would probably ignore the summons to court, possibly get a default judgement at the rate of €5 per day equivalent even if there is a very good case for a lower amount, ignore the request to pay, and gets an arrest warrant. When the defendant is picked up for an unrelated drunk-and-disorderly offense, the arrest warrant shows up in the computer.
    (I realize that this sounds disrespectful of homeless people, but it would take a homeless with a very good support network to navigate the legal proceedings successfully. Having no postal address is a massive problem, on top of the other effects.)

So while it is true that fare evasion is more likely to result in prison terms than parking offenses, the correlation is not causation.

Only very poor people are likely to go to prison over either offense, and very poor people are less likely to own and operate a motor vehicle.

That being said, it is recognized by many activists, legal professionals, and by politicians specializing in justice or welfare, that there is a massive problem. The number of inmates on Ersatzfreiheitsstrafe is unclear, but significant, and keeping them there is rather expensive. During the Corona pandemic, the state of Berlin simply stopped administering Ersatzfreiheitsstrafen to reduce crowding in prisons. Now they apply the normal laws again, arguing that "sorry, no cells available" is not a way to approach the structural problem.

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  • What’s the definition of ersatzfreiheitsstrafen? Commented Feb 28, 2023 at 2:42
  • @Seekinganswers, prison time in lieu of an unpaid fine. I'll edit.
    – o.m.
    Commented Feb 28, 2023 at 5:22
  • Can you tell us what the literal translation is? Ersatz (synthetic, in lieu of I guess) freiheits (freedom) … Commented Feb 28, 2023 at 12:40
  • 1
    @Seekinganswers, I'm not sure if a literal translation is helpful. "Substitute freedom-related punishment" maybe. Ersatz means replacement, with some connotations of "no better than the original." The customary words in a judgement strongly imply that payment is the preferred resolution. Freiheitsstrafe is a generally known word meaning "prison term", while Ersatzfreiheitsstrafe is mostly known to legal professionals and social workers/activists, or those who got a criminal fine for speeding or drunk driving themselves.
    – o.m.
    Commented Feb 28, 2023 at 16:51

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