Residential Burglary (§ 244(4) StGB) – Elements, Penalties and Defense

Residential Burglary (§ 244(4) StGB) – Elements, Penalties and Defense

Residential burglary (Burglary) was established as a separate felony (Verbrechen) under § 244(4) StGB by the 2017 amendment to the Criminal Code. The legislature responded to the high number of residential break-ins and their severe impact on public safety. The offence carries a minimum sentence of one year’s imprisonment. For expats and foreign nationals in Germany, a conviction can have serious consequences for residence status and personal liberty.

Legal Framework – § 244(4) StGB

§ 244(4) StGB: In cases falling under subsection (1) No. 3, the penalty is imprisonment from one to ten years where the offence is directed against a permanently used private dwelling.

Subsection (1) No. 3 covers theft in which the offender breaks into, climbs into, enters using a false key or another instrument not intended for regular opening, or remains concealed within a dwelling in order to commit the offence.

Key Elements

1. Underlying Offence: Theft (§ 242 StGB)

Residential burglary requires the commission of an underlying theft: the taking of another person’s movable property with the intent to appropriate it.

2. Permanently Used Private Dwelling

Dwelling: Premises that serve as the centre of a person’s private life. This includes houses, flats, granny flats, inhabited caravans and motorhomes. Purely commercial premises, cellars not forming part of the living area, garages, and holiday homes used only occasionally are not covered.

Permanently used: The dwelling must serve the occupant as their actual centre of life. Holiday homes and second residences used only occasionally do not fall under § 244(4) StGB but under § 244(1) No. 3 StGB (a misdemeanour carrying six months to ten years).

3. Breaking In, Climbing In, Entering or Remaining Concealed

Breaking in (Einbrechen): Forcibly opening a barrier designed to prevent entry – levering open a door, smashing a window, breaking a lock. The barrier must serve to protect against unauthorised entry.

Climbing in (Einsteigen): Entering premises by a route not intended for regular access, involving a degree of physical effort – for example, climbing through a window or over a balcony.

Entering with a false key or other instrument: A key is “false” when it is not (or no longer) intended for opening the lock – duplicated keys, found or stolen keys, keys unlawfully retained after the end of a tenancy. “Other instruments” include lock picks, bump keys, and manipulated chip cards.

Remaining concealed: The offender hides inside the premises in order to steal after regular closure – for example, hiding in a shop until after closing time and then entering the connected private dwelling.

Subjective Element

The offender must have intended to commit theft at the time of entering or remaining in the dwelling. If the intent to steal arose only after lawful entry, the qualifying element is not satisfied.

Procedural Implications

Since residential burglary under § 244(4) StGB is a felony, the court must appoint mandatory defense counsel (Court-Appointed Defense Lawyer) under § 140 StPO. In cases involving serial burglaries, pre-trial detention is frequently ordered on grounds of risk of repetition (§ 112a StPO), which further supports the need for immediate legal representation.

Defense Strategies

1. No Permanently Used Private Dwelling

Where the premises in question are not a permanently used private dwelling – such as a holiday home, cellar, or commercial premises – the felony under § 244(4) StGB does not apply. The offence may instead constitute a misdemeanour under § 244(1) No. 3 StGB, carrying a significantly lower sentencing range.

2. No Break-In in the Technical Sense

Where the door was unlocked and the offender merely walked in, the qualifying modes of commission – breaking in, climbing in, using a false key – are absent. In such cases, only simple theft may apply.

3. DNA Evidence and Forensic Traces

Burglary cases frequently rely on DNA evidence. The defense should examine whether the trace was collected in accordance with procedures, whether contamination can be excluded, and whether the DNA match is sufficiently probative. The mere presence of a DNA trace at the scene does not establish that the accused was involved in the burglary – alternative explanations may exist.

4. Challenging Identification Evidence

Where identification rests on witness testimony, CCTV footage, or circumstantial evidence, there is often scope to challenge the reliability of these forms of proof. Misidentification is a well-documented source of wrongful convictions.

5. Negotiating a Lesser Charge

Where the specific requirements of § 244(4) StGB cannot be fully established, a conviction under a lesser provision – such as simple theft (§ 242 StGB) or theft with aggravating circumstances under § 244(1) StGB – may carry significantly lower penalties and allow for a suspended sentence.

How We Can Help

Residential burglary charges are among the most serious property offences in German criminal law. At BAFTEH Criminal Defense, Attorney Bafteh provides experienced defense representation in burglary and organised property crime cases. We scrutinise the forensic evidence, challenge the prosecution’s theory, and develop a strategy tailored to the individual case. Contact us at any time for a confidential consultation.

Written by attorney Philip Bafteh, criminal defense attorney in Bonn. Philip Bafteh publishes regularly on criminal and commercial law and defends accused persons in investigative and trial proceedings.

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Last updated: June 2026