A festive intrusion?
Christmas is coming and I'm getting ready to put our stockings in front of the fireplace. My children are excited, but my eldest, who is very articulate and loves her law classes, explained to me that by breaking into our house, Father Christmas could be committing trespassing...
Brigitte, Canton of Geneva
Your daughter's question deserves consideration, because our jolly old man in red enters millions of homes every year without ever ringing the doorbell. Is such behaviour legally permissible?
Indeed, Article 186 of the Swiss Criminal Code protects privacy and punishes anyone who enters a house or dwelling unlawfully and against the will of the owner. The penalty can be up to three years in prison. Suffice to say that Father Christmas is taking a big risk, having been a repeat offender every 25 December for at least several decades.
However, for trespassing to be established, several elements must be present. First, the targeted location must be a place of residence in the broad sense: a house, flat, but also an enclosed courtyard or garden, or even a tent or caravan. A living room connected by a chimney clearly falls within this definition. Secondly, the intrusion must be unlawful, i.e. not covered by legal authorisation or the consent of the occupants. Finally, it must be against their will, which must be recognisable.
This is where the magic of Christmas happens: by placing your slippers out, leaving some biscuits or a glass of milk, you are expressing what lawyers call tacit consent. You are expressly inviting your bearded visitor to burst into your living room, his sack full and his intentions benevolent. In short, you are leaving the door wide open for him, or the airways clear.
The Federal Court itself recognises the primacy of express or implied consent, even in far less festive matters. As this consent removes the unlawful nature of the intrusion, Father Christmas is not acting against the residents' wishes. And in the absence of a complaint – an essential condition for any criminal prosecution for trespassing – the Public Prosecutor's Office cannot take any action.
In summary, reassure your budding lawyer: Father Christmas remains within the law. Thanks to your hospitality, demonstrated by gestures appropriate to the circumstances, he is not committing any offence. But beware of recalcitrant households where there is no sign of celebration: upon entering, the jolly bearded man or his elves could risk... a red card.
Merry Christmas and happy holidays to all Julie readers!
You can read Pascal Rytz's columns on the Tribune de Genève
