Payment with someone else's contactless card is not burglary
Can a payment by an unauthorized person with someone else's contactless card constitute a crime of burglary? However, isn't the contactless function of the payment card a security feature, so the perpetrator has nothing to break - so he can't be attributed to the break-in? (judgment of the District Court in Grudziądz of October 29, 2019, II K 294/19).
The judgment was issued in the case of a man who used someone else's contactless ATM card - found by another person and at her instigation - six times, which the prosecutor classified as breaking electronic security for access to money - burglary (Art. 279 paragraph 1 of the penal code in connection with article 12 paragraph 1 of the penal code, for the total amount of about PLN 115). Another attempt at the transaction turned out to be unsuccessful (because the plastic was blocked), so this act was classified as an incompetent attempt to defeat the electronic protection of the payment card (Article 13(2) of the Penal Code).
The court found that the lost payment card was found by an unidentified man who gave it to the defendant, he bought beer with it, then cigarettes, then the men went to dinner, for which they also paid with someone else's card, then again alcohol and cigarettes ( all using the proximity function). After an hour, the cardholder noticed it was missing from her wallet, so she blocked it; at night, the gentlemen tried to buy alcohol again (at the gas station), but the transaction was rejected.
Burglary is a two-act crime: first, the perpetrator breaks the security that protects the item against theft, which can be physical, but also digital (electronic). There is a view in the judiciary that payment by a contactless card by an unauthorized person is a crime of burglary, because breaking the protection consists in simply applying the card to the terminal (Judgment of the Supreme Court of 22 March 2017, III KK 349/16) - there is also a different line jurisprudence: that contactless payment is only a crime of ordinary theft (Art. 278 par. 1 of the Penal Code) or an offense of theft (Art. 119 par. 1 Kp, cf. judgment of the SA in Gdańsk of November 27, 2018, II AKa 307/18) The essence of a burglary is not physical damage or destruction of an obstacle (security), but a behavior that consists in disrespecting the possessor of the thing and prefers to protect the thing from other people - however, the element serving as security must be effective, so the condition for an act classified as burglary is breaking the security, which is a serious expression of securing things against theft (judgment of the Supreme Court IV KRN 170/58).
Consequently, this means that "the cardholder, choosing the option of contactless payments, in fact voluntarily resigns from the security which is the PIN code for convenience, and the ATM card itself is not an effective security measure", therefore, until the card is blocked, no there is no need to break any security, so the perpetrator can only be held responsible for theft. Liability for the misappropriation of a document is also excluded (Article 275 par. 1 of the Penal Code), because the accused did not intend to include the received card in his assets - he was aware all the time that he would have to return the card to an unknown "finder".
In total, the perpetrator was found guilty of six offenses of theft, so the court finally imposed a fine of PLN 1,000 on him. zlotys, and also ordered to return the money to the card holder (which is interesting because the bank is the owner of the money accumulated in the bank account).
