The Austrian Criminal Code protects property not only against unlawful taking, deception, or the use of force, but also against damage. The integrity of another’s property is safeguarded in particular by the offence of criminal damage in Austria pursuant to Sections 125 and 126 of the Criminal Code. While Section 125 sets out the basic offence of criminal damage, Section 126 addresses those situations in which, owing to the particular protection afforded to the property concerned or the extent of the damage, significantly harsher penalties are prescribed.
In offences against property, it is therefore not only the taking or deprivation of another’s belongings that is of significance; the destruction, damage, defacement, or rendering of property unusable is likewise subject to criminal penalties.
The Significance of Impairment to the Property as a Key Criterion of Distinction
Particularly in cases involving allegations of criminal damage, it is often underestimated that the law does not cover only the complete destruction of property. Liability may already arise where another person’s property is damaged, defaced, or rendered unusable. This makes it clear, even at the level of the statutory elements, that for the purposes of Section 125 of the Criminal Code it is not necessary for an item to have been permanently destroyed. It is sufficient that there has been a relevant impairment of its condition, its appearance, or its usability.
For that very reason, criminal damage typically encompasses not only smashing a window or destroying an object, but also acts such as scratching a car or spraying graffiti on another person’s façade. Conversely, not every unauthorised interference with another’s property automatically constitutes an offence under Section 125 of the Criminal Code. If an item is merely taken, moved, or used without being destroyed, damaged, defaced, or rendered unusable, the offence of criminal damage will generally not be made out.
Simple Criminal Damage in Austria under Section 125 of the Criminal Code
Section 125 of the Criminal Code constitutes the basic offence of criminal damage. Any person who destroys, damages, defaces, or renders another’s property unusable is liable to prosecution. The penalty is imprisonment for up to six months or a fine of up to 360 daily rates. The basic offence does not require any minimum level of damage; accordingly, even comparatively low-value items may be the subject of criminal damage.
Example: Someone scratches the paintwork of another person’s car with a key. In such a case, this will typically constitute criminal damage, as the property of another has at least been damaged. For the basic offence, it is not necessary for the vehicle to be rendered unusable.
Of particular practical importance is the fact that criminal damage is an offence requiring intent. Under Section 7 of the Criminal Code, unless the law provides otherwise, only intentional conduct is punishable. Pursuant to Section 5, intent is already present where the offender seriously considers the realisation of the statutory elements to be possible and reconciles themselves to it. Mere negligence (for example, accidental damage) therefore does not fulfil the requirements of Section 125. Thus, a person who, through carelessness while parking, grazes another vehicle does not automatically commit criminal damage, as the requisite intent is lacking.
Serious Criminal Damage in Austria under Section 126 of the Criminal Code
Section 126 of the Criminal Code governs aggravated criminal damage.
This aggravated form does not depend solely on the amount of damage caused; it is already fulfilled if the offence is directed against particularly protected property. This includes, for example, property dedicated to religious worship or infrastructure, graves, other burial sites, tombs or memorials in cemeteries or places of worship, public monuments, items protected as listed heritage, objects of recognised scientific, ethnological, artistic, or historical value held in publicly accessible collections or public buildings, as well as essential components of critical infrastructure. Irrespective of the extent of the damage, the penalty in such cases is imprisonment of up to two years.
Note: In practice, damage to critical infrastructure occurs relatively frequently and results in aggravated criminal damage being assumed, regardless of the extent of the loss. Critical infrastructure includes, in particular, facilities that are essential to public safety, healthcare services, energy and water supply, as well as central information and communication systems. Traffic lights, snow poles, road traffic signs, guardrails and similar installations are also considered part of critical infrastructure.
Example: A person destroys a grave monument in a cemetery or damages a public memorial. Such cases will regularly no longer fall merely within the scope of Section 125 of the Criminal Code, but may already be classified as aggravated criminal damage under Section 126.
Where the offence does not involve particularly protected property, the amount of damage determines whether aggravated criminal damage is constituted. If the offender causes damage exceeding EUR 5,000, a custodial sentence of up to two years may be imposed.
If the damage exceeds EUR 300,000, the offence is punishable by a term of imprisonment ranging from six months to five years.
Defence in Criminal Proceedings for Criminal Damage
In defence practice, it can be observed that in cases involving allegations under Sections 125 and 126 of the Criminal Code, the legal classification often depends on the specific details of the facts. Of central importance is, in particular, whether a “foreign” item was actually affected, whether there is a relevant impairment fulfilling the statutory elements or merely an alleged unauthorised use or relocation, the actual extent of the damage, and whether any qualifying circumstances under Section 126 are present.
Especially in cases involving façades, vehicles, monuments, burial sites, or infrastructure-related facilities, a precise legal assessment typically requires a careful, case-by-case professional evaluation.
In addition, the issue of intent is of decisive importance for the outcome of criminal proceedings. Not every damage caused automatically constitutes criminal damage in criminal law terms. Whether a person deliberately damages property, seriously considers the possibility of causing damage and reconciles themselves to it, or whether the incident is merely the result of an accident or careless conduct, is a central factor in the legal assessment.
For this reason, statements regarding the precise course of events, the intensity of the act, and the condition of the property should not be made lightly or without prior legal advice and the assistance of a criminal defence lawyer.
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Allegations under Sections 125 et seq. of the Austrian Criminal Code should by no means be underestimated and may result in significant penalties as well as adverse consequences for those affected. Our criminal law advice can make a decisive contribution to avoiding unnecessary or severe criminal repercussions for you or persons close to you.
If you or someone close to you is facing such allegations, please feel free to contact us.
Summary of Criminal Damage in Austria
Section 125 of the Criminal Code – Criminal damage: In Austria, criminal damage occurs when another person’s property is destroyed, damaged, defaced, or rendered unusable. The penalty is imprisonment of up to six months or a fine of up to 360 daily rates.
No minimum damage requirement under the basic offence: Section 125 of the Criminal Code does not require any specific minimum amount of damage. Even items of relatively low value can therefore constitute the subject matter of criminal damage.
Intent required: Criminal damage is generally only punishable if committed intentionally. Mere negligent damage therefore does not fulfil the requirements of Section 125 of the Criminal Code.
Section 126 of the Criminal Code – Aggravated criminal damage: Aggravated criminal damage may be considered in cases involving particularly protected property or where the damage exceeds EUR 5,000. If the damage exceeds EUR 300,000, the applicable penalty increases to a term of imprisonment of six months to five years.
Importance of defence: Whether, in a particular case, criminal damage, aggravated criminal damage, or no criminally relevant conduct at all is present often depends on the specific circumstances of the case (such as whether the property belongs to another person, whether damage actually occurred, the extent of the damage, and intent).
