The Austrian Criminal Code protects property not only against fraudulent or violent attacks, but also against the unauthorised taking of another person’s property. This is set out in particular in Sections 127 to 130 inclusive of the Criminal Code. Whilst Section 127 of the Criminal Code covers the basic offence of theft, Sections 128, 129 and 130 of the Criminal Code deal with those circumstances in which the legislature provides for significantly harsher penalties due to the value of the property, the specific manner in which the offence was committed or the organisational background to the offence.
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The significance of the distinction between simple theft and aggravated theft
Particularly in cases involving allegations of theft, it is often overlooked that it is not only the value of the stolen item that determines the applicable penalty. Rather, the legal classification may depend crucially on the circumstances in which the offence was committed – for example, whether a secure premises was entered, whether a dwelling was involved, or whether the allegation is that the offence was committed on a commercial basis or as part of a criminal organisation. This classification determines whether merely the basic offence under Section 127 of the German Criminal Code (StGB) applies, or whether one of the significantly more severe aggravated forms of the offence under Sections 128 to 130 StGB applies.
A professional criminal defence therefore begins with the question of how the facts of the case fit into the various offences, as potential consequences – such as the admissibility of pre-trial detention, financial measures and the applicable penalty – are linked to this. Distinguishing between the various offences is therefore of essential importance for the defence.
What constitutes petty theft under Section 127 of the German Criminal Code (StGB)?
The basic offence of theft is set out in Section 127 of the German Criminal Code (StGB). A person is guilty of an offence if they take another person’s movable property with the intention of unlawfully enriching themselves or a third party by appropriating it. There are therefore three key elements:
- another person’s movable property,
- the removal and
- an intent aimed at misappropriation and unjust enrichment.
The penalty provides for a prison sentence of up to six months or a fine of up to 360 daily rates.
The objects of theft are another person’s movable property which is not entirely worthless and is in the custody of another person. An item is considered to belong to another person if it is at least jointly or solely owned by that person. It should also be noted that Section 127 of the Criminal Code (StGB) does not require the item to have a specific minimum value. Even items of low value can, in principle, be the subject of a criminal offence of theft; however, the value becomes particularly significant when determining subsequent classifications of the offence. For the basic offence of simple theft, it is sufficient that the item has an exchange value in an economic sense.
Example:
Even items of little value, such as stale bread, an old mobile phone and the like, can be the subject of theft. Ordinary items such as keys, ATM cards, savings books, number plates, passports, etc. are generally not considered stealable – due to their lack of exchange value. Taking these items is not without penalty; rather, it may constitute other offences such as suppression of documents or persistent misappropriation of property.
What constitutes aggravated theft under Section 128 of the German Criminal Code (StGB)?
Aggravated theft is governed by Section 128 of the German Criminal Code (StGB). Contrary to what is often assumed, aggravated theft does not always require the item to be of high value. Rather, the offence is committed if the theft is carried out under particularly aggravating circumstances, such as during a fire, flood or other emergency, by taking advantage of the victim’s helpless state, in a place used for religious worship, in relation to objects of worship, in relation to items of generally recognised scientific, folkloric, artistic or historical value in collections open to the public or public buildings, in relation to an essential component of critical infrastructure, or in relation to an item whose value exceeds 5,000 euros. In all these cases, the penalty is imprisonment for up to three years.
Section 128(2) of the German Criminal Code (StGB) provides for a more severe penalty where the value of the stolen property exceeds a certain threshold. Anyone who steals an item worth more than 300,000 euros is liable to a term of imprisonment of between one and ten years. It is precisely the qualifying elements set out in Section 128 of the Criminal Code that demonstrate that the offence of theft is not based solely on the act of taking property as a wrongful act, but in particular on the increased wrongfulness of the offence resulting from special circumstances or particularly high values. Depending on the severity of the theft, the penalties range from up to six months’ imprisonment in straightforward cases to up to ten years’ imprisonment in particularly serious cases.
Burglary and armed robbery under Section 129 of the German Criminal Code (StGB)
Section 129 of the German Criminal Code (StGB) governs theft by breaking and entering or with weapons. The offence goes beyond what is commonly understood in everyday language as mere ‘burglary’. It is a criminal offence for anyone to break into, climb into or gain entry to a building, a means of transport, a storage area or any other enclosed space with the intention of committing theft, using a forged or unlawfully obtained key, any other unauthorised tool for opening locks, or an unlawfully obtained access code. This also covers breaking open or otherwise opening a container or a locking device, as well as electronically bypassing an access control system. The penalty in such cases is imprisonment for up to three years.
The offence is regarded as even more serious under section 129(2) of the German Criminal Code (StGB) if the offender gains entry to a dwelling in this manner or if he – or another person involved, with his knowledge – carries a weapon or other means intended to overcome or prevent a person’s resistance. In these circumstances, the penalty ranges from six months to five years’ imprisonment. Section 129 of the German Criminal Code (StGB) thus focuses not merely on the protected interest and the manner in which custody was breached, but also on the increased potential for danger involved in the commission of the offence.
Commercial theft and theft committed as part of a criminal organisation under Section 130 of the German Criminal Code (StGB)
Section 130 of the German Criminal Code (StGB) governs theft committed on a commercial basis and theft committed as part of a criminal organisation. If a theft is committed on a commercial basis or as a member of a criminal organisation with the involvement of another member of that organisation, the penalty is imprisonment for up to three years. If the offender commits a aggravated theft under section 128(1) of the German Criminal Code (StGB) or theft under Section 129(1) of the German Criminal Code (StGB) , the range of penalties is increased to between six months and five years. If the offence is committed on a commercial basis or in connection with an organisation, and relates to a Theft under Section 129(2) of the German Criminal Code (StGB) , the penalty ranges from one to ten years’ imprisonment.
In defending cases of this nature, it is particularly important to assess whether the offence was committed on a commercial basis. Under Section 70 of the German Criminal Code (StGB), a person acts on a commercial basis if they commit an offence with the intention of securing, through its repeated commission over a prolonged period, a continuous income that is not merely trivial; the Act specifies this income as a monthly average of more than 400 euros and, in addition, requires further statutory criteria, such as the planning of further offences or prior relevant conduct. Not every repeated offence is therefore automatically committed on a commercial basis, which is why a thorough examination of whether the statutory requirements are met is crucial.
Summary
Definition of the offences: Section 127 of the German Criminal Code (StGB) sets out the basic offence of theft. Sections 128, 129 and 130 of the StGB, by contrast, cover aggravated forms of the offence, for which significantly harsher penalties are provided for due to specific circumstances, the value of the property, the manner in which the offence was committed or the organisational background.
Definition of criminal offences: Section 127 of the German Criminal Code (StGB) sets out the basic offence of theft. Sections 128, 129 and 130 of the StGB, on the other hand, cover aggravated forms of the offence, for which significantly harsher penalties are provided for on account of special circumstances, the value of the property, the manner in which the offence was committed or the organisational background.
Section 128 of the German Criminal Code (StGB) – Aggravated theft: Aggravated theft, which is punishable by up to three years’ imprisonment, is not only defined as theft involving an item worth more than 5,000 euros, but also covers certain circumstances specifically protected by law, such as taking advantage of a person’s distress, in the case of cultural artefacts, items of generally recognised scientific, folk
Section 129 of the German Criminal Code (StGB) – Theft by breaking and entering or with weapons: This covers, amongst other things, gaining unauthorised entry into enclosed premises by unlawful means, opening containers or locking devices, and electronically bypassing access controls. Where the offence involves breaking into a dwelling or is committed whilst armed, the penalty ranges from six months to five years’ imprisonment.
Section 130 of the German Criminal Code (StGB) – Theft committed on a commercial basis and theft committed as part of a criminal organisation: The offence under Section 130(1) StGB carries a prison sentence of up to three years. Where a serious theft or a theft under Section 129(1) of the StGB is committed on a commercial basis or as part of a criminal organisation, the penalty range increases to between six months and five years; where Section 129(2) of the StGB applies, the penalty range increases to between one and ten years.
Allegations of theft often seem manageable to those involved at first, but – depending on the value of the item, the manner in which the offence was committed and the alleged aggravating circumstances – they can very quickly take on a significantly greater level of criminal relevance. Whether, in a specific case, only Section 127 of the German Criminal Code (StGB) applies, or whether one of the aggravating circumstances set out in Sections 128 to 130 StGB applies, is usually of considerable importance for the defence strategy and the possible outcome of the proceedings. Seeking criminal law advice at an early stage can therefore play a decisive role in correctly assessing the allegations and avoiding unnecessary legal disadvantages.eqftrvgwwvwerf
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Allegations under Sections 127 et seq. of the German Criminal Code (StGB) should under no circumstances be underestimated and may – particularly in cases of repeat offences – be accompanied by highly unpleasant coercive measures such as arrests and detention. Our criminal law advice can play a crucial role in helping to avoid unnecessary or serious criminal law consequences for you or your loved ones. Should you or someone close to you find themselves facing such allegations, please do not hesitate to contact us.
Contact usFAQ: Frequently asked questions about criminal proceedings for theft in Austria
The penalty for theft is determined primarily by the value of the stolen goods. Whilst ‘minor’ cases are punishable by up to six months’ imprisonment or a fine of up to 360 daily rates, serious cases can result in a prison sentence of between one and ten years.
Law enforcement authorities are obliged to prosecute theft ex officio, as it is an offence that is prosecuted by the authorities on their own initiative. The only exceptions are thefts within the family or cases of what is known as ‘misappropriation’.
If the court considers a fine to be appropriate, it will calculate the fine in daily rates and, in the case of theft under the basic offence, set the maximum number of daily rates at 360. The amount of each daily rate is determined by your financial circumstances (e.g. your income and your financial responsibilities).
Aggravated theft under Section 128 of the German Criminal Code (StGB) may apply in several circumstances. It is committed when the value of the property exceeds 5,000 euros or when the offence is committed by taking advantage of a person’s distress. The taking of certain items belonging to a religious community, the scientific community or critical infrastructure may also constitute aggravated theft. In such cases, the potential penalty is increased to up to three years’ imprisonment, reflecting the greater wrongfulness of the offence.
Burglary under Section 129 of the German Criminal Code (StGB) carries a significantly harsher penalty of up to three years’ imprisonment. If the burglary takes place in a dwelling or if the offender is carrying a weapon, the penalty range is as high as six months to five years.
Theft committed on a commercial basis occurs when the offender commits thefts in order to secure a regular monthly income of more than 400 euros and the other necessary conditions for commercial activity under Section 70 of the German Criminal Code (StGB) are also met. Depending on the type of theft committed on a commercial basis, the law provides for different, and in some cases very severe, penalties.
The taking of an item that has an economic exchange value may constitute theft. The item does not have to be legal – for example, drugs (narcotics) can also be stolen. ATM cards or passports do not generally fulfil the elements of the offence of theft due to their lack of exchange value. However, taking them often fulfils the elements of other offences, such as the suppression of documents, and therefore still entails criminal consequences.
