A Nazi-Era Law Still Lands Poor People in Jail in Germany
In Germany, at least 8,000 people go to jail each year for failing to pay public transit tickets. The relevant part of the criminal code was introduced under the Nazis — yet is still routinely used to imprison mostly poor non-payers.
An employee of the Hochbahn guard is on duty at a station in Hamburg, Germany, on December 7, 2020. (Daniel Reinhardt / Picture Alliance via Getty Images)
Between eight and nine thousand: this is the rough number of people who go to jail in Germany each year for failing to pay a public transportation ticket. Once discovered, passengers are asked to pay a fine, which normally amounts to €60 ($70). Those who can’t pay and see the fines build up face a prison sentence of up to one year. Unsurprisingly, it is mainly the poor who end up in jail. According to the Freiheitsfonds (Freedom Fund), which campaigns in favor of those incarcerated for fare evasion, 87 percent are unemployed, 15 percent do not have a home, and 15 percent are at risk of suicide. Compounding the problem, many of the people imprisoned have lost their homes by the time they come out again.
Section 265a of the German Criminal Code, the legal provision responsible for punishing fare dodgers so severely, was first introduced in September 1935, more than two years after the Nazis took power. Nicole Bögelein, a criminologist at the University of Cologne, told me about the historical origins of Section 265a. She comments that the measure originally aimed not to prevent transport fraud but to reduce “the misuse of a coin-operated telephone.” At the time, “the misuse of vending machines was considered the ‘most frequent and economically most dangerous type of service fraud.’”
Nowadays, fare evasion represents most cases under Section 265a. Leo Ihßen, who works for the Freiheitsfonds, tells me that “it is not unique that laws with roots in the Nazi period continue to exist in the German penal code.” Still, Section 265a “is a particularly clear example of how a law introduced during that time continues to produce harsh social consequences today, especially for people living in poverty.” Ihßen adds that this legal provision “not only comes from an extremely problematic and historically charged period; it also clearly reflects the mindset of the social-chauvinist lawmakers of that era.”
The Reform That Didn’t Happen
November 2024 saw the collapse of the German government made of the center-left Social Democrats (SPD), the Greens, and the neoliberal Free Democratic Party (FDP). After months of increased internal tensions, then chancellor Olaf Scholz asked FDP leader and Finance Minister Christian Lindner to leave the government. Two other FDP ministers also vacated their positions, including Justice Minister Marco Buschmann.
Buschmann had been talking about the need to reform Section 265a of the penal code since 2022. And yet, he left the government without the draft law to change Section 265a having reached a plenary session of parliament. Buschmann intended to downgrade fare dodging from a criminal offense to an administrative matter, similar to parking wrongly, which would have meant that no one else would have gone to prison for it.
Such a reform enjoyed public support across party preferences. According to a 2023 poll, 69 percent of Germans supported its reclassification into an administrative offense. Voters for the Greens and the left-wing Die Linke were the most in favor but there was a majority for change even among the most reluctant, i.e., voters for the far-right Alternative für Deutschland (AfD) and the FDP. The data was less conclusive when pollsters asked citizens whether they approved of the principle that fare dodgers might end up in jail. Fifty percent found this wrong, but 45 percent considered it appropriate.
This cross-party support is not so surprising if we consider that a change to the current legislation has been defended from very different political positions. Whereas a left-wing perspective emphasizes the inequality between poor and rich before the law, a more neoliberal argument complains of the unnecessary costs for the state. The expenditure on jailing someone for forty days in costly Berlin — a realistic penalty — can reach €9,000 ($10,560) without considering the costs incurred by the courts and police.
In Berlin, Hamburg, and Munich, the country’s three largest cities, the local public transportation authorities continue to report to the police those who repeatedly fail to pay a ticket. But others such as Cologne, Bonn, Bremen, Dresden, or Leipzig have taken a different path in recent years. Although fare evasion is still punished with a fine, fare dodgers are no longer reported to the police.
University of Cologne criminologist Bögelein argues that “fare dodging should be completely removed from penal or administrative law.” For her, this offense is currently being punished twice, by the public transportation company and then by the state. While the public transportation companies demand the payment of a fine, the state punishment comes on top of that.
Bögelein instead proposes to have fare dodging only in civil law. Similarly, the Freiheitsfonds’s Ihßen explains that his organization calls for going beyond Buschmann’s proposal and abolishing Section 265a without replacement. It argues that “the existing civil law procedures are fully sufficient to handle unpaid fares. People should not face criminal charges or imprisonment for not having a ticket.”
A Sign of Wider Problems
Fare dodgers represent only a fraction of the approximately fifty thousand people imprisoned in Germany each year despite initially not having been sentenced to jail time. They end up behind bars because they do not have the money to pay fines. Beyond fare dodging, other common offenses in this group include driving without a license or theft.
The statistics about the prisoner population do not only show the effects of poverty but also the rifts that continue to divide Germany thirty-five years after reunification, as the five federal states that belonged to the German Democratic Republic (GDR) continue to be the five poorest.
The eight federal states with the lowest rate of prisoners for not paying fines in 2021 were either Berlin or in western Germany. Meanwhile, three of the five federal states that belonged to the GDR were among the five states with the highest rate of prisoners due to unpaid fines. In 2020, for instance, 10 percent of all prisoners in the eastern state of Brandenburg belonged to this group.
The harsh punishment of those who cannot pay a fine illustrates a more general problem, namely the criminalization of poverty in an increasingly unequal society. In the 2010s, in the heart of the so-called “Merkel years”, Germany saw its Gini index (which measures economic inequality) rise from 30.8 to 32.4. During the same time, the at-risk-of-poverty rate increased from 14.5 to 16.3 percent of the population.
This is unlikely to improve under the current German government, led by the right-wing Christian Democrats. The new chancellor, Friedrich Merz, likes to call himself a member of the upper-middle class, but he is a millionaire, a former manager at the investment management company BlackRock, and the proud owner of a private jet.
Judging by his emphasis on the topic, Merz’s recipe for restoring German economic growth, as enthusiastically shared by his Economy Minister Katherina Reiche, largely consists of asking Germans to work longer hours and until later in life. In one of its first major economic decisions, the government adopted subsidies to decrease the energy prices for agriculture and industry while leaving them untouched for small businesses and households. This is wealth redistribution from bottom to top, as well as a breach of the promise of lowering energy prices for all, announced after the government was formed in May.
The energy prices debacle raises further doubts regarding whether Chancellor Merz’s junior partner, the Social Democrats (SPD), will be willing or able to rein in his worst neoliberal excesses. Labor Minister Bärbel Bas, who is SPD coleader, belongs to the nominally left-wing side of the party and started her career from humble beginnings. However, her fellow SPD coleader Lars Klingbeil, who is also Finance Minister and Vice-Chancellor of Germany, is a member of the Seeheimer Kreis, a conservative faction in the party. Klingebeil has installed many of his loyalists in government.
Bas, who promised at the last SPD party congress that there would be no major social cuts with her as minister, faces an uphill challenge after the summer parliamentary recess, when fundamental changes in the Bürgergeld or citizen’s benefit are expected. This state welfare program, reserved for those who have no income or do not earn enough to support themselves and their dependents, has been targeted by influential tabloid Bild (generally considered the highest circulation newspaper in Europe) and politicians from the Right and far-right.
In their view, any real or alleged case of welfare fraud is grounds for the general condemnation of a benefit received by over 5.5 million people in Germany. They also demand tougher sanctions for those who reject job offers not fitting their qualifications, and less money to be spent on housing costs. Absent from the discussion is the fact that rising numbers of working people are entitled to Bürgergeld because salaries have not kept up with inflation, and having a job is no guarantee of avoiding poverty. Despite the media attention toward it, Bürgergeld fraud amounts to €260 ($301) million annually, an insignificant fraction of the €100 ($115) billion lost every year by Germany to multinational companies operating with offshore companies and tax loopholes.
So, what hope of fare evasion being decriminalized under this government? The Freiheitfonds’s Ihßen notes that the SPD now holds the Justice Ministry and “the party has repeatedly spoken out in favor of abolishing this outdated provision.” The time has come to prove whether they mean it, says Ihßen, who nonetheless considers the Christian Democrats the key player.
Meanwhile, this September the Freiheitfonds plans to mark the ninetieth anniversary of the introduction of Section 265a in a rather original way. They are collecting money to pay the fines of imprisoned tax dodgers and celebrate, in their own words, “the largest prisoner liberation in the history of the Federal Republic of Germany.”