The Austrian Criminal Code protects not only physical integrity and the property of others, but also, amongst other things, personal freedom. In the context of interpersonal conflicts, failed relationships, neighbourhood disputes or digital communication, it is often overlooked that stalking – through repeated attempts to make contact, lying in wait, persistent messages or similar intrusions – may, under certain circumstances, constitute a criminal offence.
In order to deter and punish such behaviour, which continues over a certain period of time and unreasonably interferes with the lives of those affected, Section 107a of the Austrian Criminal Code (StGB), known as ‘persistent harassment’, was introduced into the Austrian Criminal Code. In everyday language, this is usually referred to as ‘stalking’ (English for sneaking up on, stalking, pursuing, lying in wait). A person is said to be persistently harassing another if, over a prolonged period, they repeatedly carry out certain acts which are objectively capable of unreasonably disrupting the other person’s way of life.
It is not a single instance of unwanted contact that is punishable, but rather persistent behaviour over a prolonged period which is likely to unreasonably interfere with the affected person’s way of life. The decisive factors are duration, intensity, repetition, unlawfulness and the likelihood of unreasonably interfering with the affected person’s way of life.
The significance of an unreasonable impairment to one’s way of life
The key element of Section 107a of the German Criminal Code (StGB) is not that behaviour is merely perceived as disruptive, unpleasant or intrusive. Rather, it is necessary that the harassment takes place in a manner that is objectively capable of unreasonably interfering with the affected person’s way of life. The offence therefore requires a certain degree of seriousness.
Indications that the individual’s way of life is being affected may include, for example, the individual changing their daily routine, avoiding certain places, changing their telephone number, deleting social media profiles, only going to work whilst feeling anxious, no longer feeling safe in their private life, or withdrawing from social life. However, what is decisive is not whether the person concerned has actually changed their way of life as a result of the stalking, but merely whether such a change in lifestyle would be objectively understandable in light of the stalking acts in question.
Ob die Schwelle zur Unzumutbarkeit und objektiven Eignung der Beeinträchtigung in der Lebensführung erreicht ist, hängt stets von den konkreten Umständen des Einzelfalls ab.
Whether the threshold of unreasonableness and objective suitability of the impairment to one’s way of life has been reached always depends on the specific circumstances of the individual case.
Section 107a(2) of the German Criminal Code (StGB) sets out the various forms of persistent harassment or stalking. This includes, first and foremost, seeking to be in close physical proximity to a person, for example by repeatedly appearing outside their home or at their place of work. It also includes making contact via telecommunications, other means of communication, or even through third parties. This may include persistent phone calls, messages, emails, social media contact or indirect attempts to make contact via friends, family members or work colleagues.
Furthermore, persistent harassment may also occur where personal data of the data subject is used to order goods or services on their behalf, or to arrange for third parties to contact them. This also includes the publication of facts or images relating to the data subject’s most private sphere of life.
Admittedly, what all these courses of action have in common is that they must be carried out against the will of the person concerned.
The penalty for the basic offence is a prison sentence of up to one year or a fine of up to 720 daily rates. If the period over which the offence was committed exceeds one year, or if the offence results in the suicide or attempted suicide of the victim, the penalty is increased to a prison sentence of up to three years.
Typical forms of stalking
Persistent stalking can take many different forms. Typical examples include repeatedly lying in wait outside the victim’s home, repeatedly turning up at their place of work, making constant phone calls or sending messages despite clear rejection, contacting the victim via a succession of new phone numbers or (fake) profiles, and enlisting the help of third parties to continue exerting pressure on the victim.
It is particularly in digital communication that the boundaries often become blurred. What may appear, from the perspective of the person initiating contact, to be a mere attempt to ‘talk things through again’ or to clarify a relationship may, from the perspective of the person concerned, already constitute an unreasonable intrusion.
Distinguishing this from merely unwanted contact
Nicht jede unerwünschte Kontaktaufnahme stellt bereits strafbare beharrliche Verfolgung dar. Eine einzelne Nachricht, ein einzelner Anruf oder ein einmaliges persönliches Erscheinen wird für sich allein regelmäßig nicht genügen. Auch ein „Sturmläuten“ in einer Nacht, weil der Verschmähte die Zurückweisung nicht verträgt, sein Verhalten aber danach sofort aufgibt und nicht fortführt, wird den Tatbestand idR nicht erfüllen können. § 107a StGB verlangt vielmehr ein fortgesetztes Verhalten über einen längeren Zeitraum, dass geeignet ist, die Lebensführung zu beeinträchtigen.
The situation is different when perpetrators persist in making contact despite clear rejection. If they even use different channels of communication to circumvent being ‘blocked’, the behaviour quickly reaches a level of intensity that noticeably affects the victim’s daily life. In such cases, the overall picture is decisive: case law refers to a so-called ‘flexible system’ of the elements of the offence in cases of persistent harassment under Section 107a of the German Criminal Code (StGB).
Individual acts may appear harmless when considered in isolation; however, when repeated and accumulated over a longer period of time, they may become relevant under criminal law. Similarly, acts carried out over a shorter period of time but with ‘greater intensity’ may already constitute an offence. So ist das zB. das wiederholte unangekündigte Auflauern am Arbeitsplatz der Ex-Partnerin und beim Kindergarten ihres Kindes aufgrund der unmittelbaren räumlichen Nähe idR weitaus eingriffsintensiver als „bloße“ wiederholte Anrufversuche.
Finally, the subjective element of the offence must not be overlooked. In so-called ‘on-off relationships’, where the stalker has in the past succeeded, through persistence, in ‘winning back’ the victim, it may, under certain circumstances, be permissible to conclude that, in the facts of the case under consideration, the stalker’s intent – which is required for the offence to be established – cannot be proven with certainty.
Stalking & Distinction from dangerous threats and coercion
BePersistent harassment must also be distinguished from other offences. If, for example, a person is subjected to a dangerous threat intended to instil fear and anxiety in them, a dangerous threat under Section 107 of the Criminal Code (StGB) may apply in addition to or instead of Section 107a of the Criminal Code. If the person concerned is coerced by violence or a dangerous threat into performing an act, tolerating a situation or refraining from an act, this may constitute coercion under Section 105 of the Criminal Code.
By contrast, the focus of Section 107a of the German Criminal Code (StGB) is not on an isolated threat or an act of coercion, but on persistent harassment and the resulting – or at least objectively possible – unreasonable disruption to the victim’s way of life. Admittedly, perpetrators often also commit isolated acts of threats, coercion or damage to property over the course of a prolonged period of stalking. These individual acts then constitute an additional offence, which is separate from the overall offence of persistent harassment.
It is precisely the commission of isolated criminal acts within the context of the overall pattern of harassment that lowers the thresholds in the aforementioned flexible system. For example, even a shorter duration of the stalking is sufficient, and the situation becomes unreasonable much sooner if, whilst approaching the victim physically or making contact via telecommunications, the perpetrator makes dangerous threats against the victim or a person close to them.
Distinguishing it from cyberbullying
Not every instance of digital harassment automatically constitutes persistent stalking. If, for example, content is disseminated on the internet or via social media that exposes a person to a large number of people over a prolonged period, insults them or infringes upon their most private sphere of life, the offence of persistent harassment via telecommunications or a computer system under Section 107c of the German Criminal Code (StGB) may also apply.
In practice, the elements of different offences may overlap. Repeated messages, fake profiles, the publication of personal content or the involvement of third parties may, depending on the specific circumstances, constitute different criminal offences. This makes it all the more important to examine precisely which conduct is, or should be, alleged.
When does it constitute persistent harassment – and when does it not?
Example 1: A person calls their former partner several times a day for weeks on end, sends them constant messages, repeatedly waits outside their flat and also contacts friends in order to obtain information about them. Despite being clearly asked to stop contacting them, they continue to behave in this way. There are many reasons to pursue this case tenaciously, as the perpetrator has repeatedly committed acts of stalking over a prolonged period and this behaviour may unreasonably interfere with the victim’s way of life.
Given the demand to desist from such behaviour, it stands to reason that the person pursuing the other is acting with the requisite intent.
Example 2: Following a break-up, someone sends a one-off message asking for a conversation. Even though this attempt to make contact may be unwelcome, a single message on its own will not be sufficient to satisfy the criteria of Section 107a of the German Criminal Code (StGB). The required pattern of contact over a prolonged period is lacking.
Example 3: A person repeatedly orders goods, newsletters or services using the victim’s personal details, with the result that the victim is constantly faced with unsolicited contact, deliveries or demands. Even if there is no personal stalking involved, such behaviour may fall under Section 107a of the German Criminal Code (StGB), as the law may also expressly cover the misuse of personal data for the purpose of ordering goods and services in this context.
Example 4: Someone secretly observes another person without the person being observed ever realising it, or being intended to realise it. Whilst such behaviour may well seem strange, it does not constitute a criminal offence under Section 107a of the German Criminal Code (StGB) due to the observer’s lack of intent, because, given the covert nature of the act, the observer has no intent to interfere with the observed person’s way of life.
Practical guidance from defence practice in stalking cases
In cases involving allegations under Section 107a of the German Criminal Code (StGB), it is usually essential to reconstruct the sequence of events in detail. Of particular importance is which attempts to make contact actually took place, over what period they occurred, whether a clear request to cease contact was made, and whether the actions were such as to unreasonably interfere with the affected person’s way of life.
The issue of illegality should not be overlooked. Communication required for professional purposes, legally permissible contact made to enforce legitimate claims, or individual acts that are socially acceptable can certainly be distinguished from persistent harassment. Particularly in emotionally charged conflicts, those involved often confuse criminal and non-criminal acts.
Conversely, from the perspective of those affected, thorough documentation is particularly important. Messages, call logs, screenshots, emails, witnesses and time stamps can serve as crucial evidence in clearly demonstrating the extent and duration of the alleged persecution. Precisely because Section 107a of the German Criminal Code (StGB) requires behaviour to have continued over a prolonged period, the documentation of individual incidents within the overall context is of considerable importance.
Practical tip
Anyone facing allegations of persistent harassment should under no circumstances attempt to ‘sort out’ the matter by making further direct contact. In particular, sending additional messages, making phone calls or paying personal visits can seriously worsen one’s legal position. If, for example, a person were so unperturbed by the criminal proceedings that had been initiated that they continued to make unwanted contact despite the complaint, the authorities might consider the risk of reoffending – the ground for detention – to have materialised.
Similarly, victims of stalking should not simply view individual incidents in isolation, but should document the behaviour as comprehensively and chronologically as possible. Even if victims feel they have too little or no evidence, a solicitor specialising in criminal law can help them to prepare the facts of the case for a police report and apply for further evidence to be obtained.
Whether you are the accused or the victim of stalking, it is advisable to seek legal advice at an early stage in order to take the next steps in a strategically sound manner. It is always advisable to consult a solicitor in stalking cases, regardless of which situation you find yourself in.
Summary
Section 107a of the German Criminal Code (StGB) – Stalking: Stalking occurs when a person unlawfully and persistently harasses another person over a prolonged period in certain ways specified by law, and this behaviour is objectively capable of unreasonably interfering with the affected person’s way of life.
Typical acts: These include, in particular, persistently seeking physical proximity; persistently making contact via telephone, messages, social media or third parties; persistently placing fraudulent orders using personal data; and persistently publishing facts or images relating to a person’s most private sphere of life.
Penalty range: For the basic offence, the penalty is imprisonment for up to one year or a fine of up to 720 daily rates. If the period over which the offence was committed exceeds one year, or if the offence results in the suicide or attempted suicide of the victim, the penalty is increased to imprisonment for up to three years.
Definition: Not every instance of unwanted contact is a criminal offence. The decisive factors are persistence, duration, intensity, unlawfulness and the potential to unreasonably disrupt the victim’s way of life. In cases of persistent harassment, the overall circumstances of the specific individual case take on particular significance in relation to the flexible framework governing persistent harassment.
Stalking: The importance of defence and victim advocacy
Whether a particular case involves persistent harassment, dangerous threats, coercion, cyberbullying or no criminal offence at all depends on the specific details of the sequence of events and the actual acts of communication or harassment.
Allegations of persistent stalking are often characterised by emotionally charged relationship conflicts and histories, as well as digital communication histories. Whether Section 107a of the German Criminal Code (StGB) is in fact satisfied in a specific case, whether other criminal offences may be applicable, or what legal steps are appropriate to protect the person concerned, can only be properly assessed on the basis of the specific facts of the case.
Seeking legal advice at an early stage can therefore play a crucial role in properly assessing the situation, avoiding unnecessary or serious legal consequences, and curbing or putting an end to ongoing stalking. Please contact us to receive early legal advice and support if you are facing allegations of stalking or are a victim of it.
Contact usFAQ: Frequently asked questions about the criminal liability for stalking
In Austria, stalking is legally defined in Section 107a of the Criminal Code (StGB) as persistent harassment. The most common forms of behaviour falling under this offence are repeatedly seeking to be in the victim’s physical vicinity and repeatedly making contact via telecommunications. However, the law provides for other forms of conduct as well. What all forms of conduct have in common, however, is that they must be objectively capable of unreasonably interfering with the affected person’s way of life.
Particularly in the case of persistent harassment, the point at which the threshold for criminal liability is crossed depends very much on the individual case, because the offence of persistent harassment is often described as having a flexible set of constituent elements. A small number of acts of harassment – which are, however, very intense and completely unreasonable – may, under certain circumstances, satisfy the elements of the offence even after a short period of time. Whether there has already been an on-off relationship must also be taken into account.
Cut off all contact with the person who is accusing you of persistent stalking immediately. Do not make any further contact, not even via third parties or social media. Do not try to persuade the person to ‘withdraw’ a complaint or to change their statement. At the very latest when you receive a summons to attend an interview as a suspect, contact a solicitor specialising in criminal law and do not make any statements to the police without first consulting a solicitor.
If someone continues to contact you against your wishes, you should make it clear to them in a firm manner – ideally in writing for evidence purposes and/or in the presence of a witness – that you do not wish to have any further contact and that you find their contact intrusive. You should then refrain from any further contact. If necessary, inform your friends, family and colleagues. Keep a record of any attempts to contact you for evidence purposes. Seek legal advice so that you can submit a well-founded application for a temporary injunction and/or file a well-founded criminal complaint. In threatening situations, contact the police emergency number.
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Call logs and digital message histories are often key pieces of evidence that can substantiate (unwanted) attempts to make contact. Call data records can also be used to investigate the accused or as evidence. Ultimately, however, statements made by the person concerned and those around them are also regarded as evidence that may be used against the accused.
A report to the police usually triggers the opening of a preliminary investigation, as the authorities are required to take action ex officio in relation to this offence. The police often carry out investigations on their own initiative. The report, together with the findings of the investigation, is submitted to the Public Prosecutor’s Office as a case report, and the Public Prosecutor’s Office decides on the next steps in the preliminary investigation.
The Criminal Code provides for a prison sentence of up to one year or a fine of up to 720 daily rates for persistent harassment. If the persistent harassment lasts for more than one year or results in the suicide of the person concerned, the maximum sentence is increased to up to three years’ imprisonment.
Protection against persistent harassment also applies in the digital sphere. In addition to Section 107a of the German Criminal Code (StGB), Section 107c of the StGB also constitutes a further offence that penalises persistent harassment carried out via a telecommunications or computer system. Section 107c of the German Criminal Code (StGB) may be satisfied if, by means of telecommunications or a computer system, an act that undermines a person’s honour is committed in a manner perceptible to a large number of people, or if facts or images relating to the most private aspects of the affected person’s life are made perceptible to a large number of people.
