People often think of criminal offences primarily as attacks on another person’s property (e.g. theft) or attacks on physical integrity (e.g. bodily injury). However, under certain circumstances, verbal statements or even physical gestures or signs can also be a criminal offence. The best example of this is the offence of dangerous threat under Section 107 StGB. Dangerous threat is by far the offence against liberty that is most frequently reported by those affected. The Vienna Commentary on the StGB notes that the authorities record around 13,000 to 14,000 cases every year (Schwaighofer in Höpfel/Ratz, WK2 StGB § 107 Rz 1 (as of 1 April 2021, rdb.at).
While many people talk about a “threat” in everyday life, criminal law does not penalise every harsh, insulting or unpleasant statement. Dangerous threat is defined by law on the basis of several criteria, some of which appear quite complex. It is therefore often possible to effectively refute criminal complaints on purely legal grounds alone. In the case of dangerous threat, both the statutory definition of a dangerous threat under Section 74(1) no. 5 StGB and the criminal offence of dangerous threat under Section 107 StGB must be taken into account.
The definition of dangerous threat under Section 74(1) no. 5 StGB
It is irrelevant for a dangerous threat that someone subjectively feels uncomfortable or offended. Rather, what is required is a threat to violate a legally protected interest, whereby the threat must be objectively capable of causing the threatened person well-founded concern, taking into account the circumstances and their personal characteristics or the significance of the harm threatened. Section 74(1) no. 5 StGB lists the legally protected interests that are protected against violation by dangerous threat. Accordingly, physical integrity, liberty, honour and property are to be protected against dangerous threats. The most intimate area of a person’s private life is also to be protected against threats to make facts or images accessible, disclose them or publish them.
Finally, it is not only a threat against the person concerned themselves that is relevant under criminal law. The statutory definition also covers dangerous threats against relatives or other persons who are under the protection of the threatened person or who are personally close to them.
A further requirement for criminal liability is that the harm threatened relates to a future event whose occurrence the person making the threat influences or claims to influence. Anyone who merely claims that harm has already occurred does not thereby automatically commit a dangerous threat. Nor is a mere warning of a future event sufficient under criminal law if the speaker does not claim or suggest that its occurrence depends on their will. No particular form is required for a dangerous threat. It can be made orally between persons present, by telephone, in writing or implicitly through gestures, hints or actions (e.g. showing or holding up a weapon, etc.). It is also possible for a threat to be conveyed to the threatened person by a third party (in which case the person making the threat must intend that the threat be brought to the attention of the person who is to be threatened).
It is also of considerable practical importance that the offence does not require the victim to actually become afraid. It is legally irrelevant whether the threatened person actually took the threat seriously. Nor is it necessary for the perpetrator to actually want to carry out the harm threatened, or even to be able to carry it out at all. What matters is whether the threat (taking into account the specific circumstances of the case) is objectively capable of causing the threatened person well-founded concern, with regard to the legally protected interests, that the person making the threat is willing and able to carry out the harm threatened.
The criminal offence of dangerous threat under Section 107 StGB
Section 107(1) StGB governs the basic offence of dangerous threat. According to this provision, anyone who dangerously threatens another person in order to instil fear and anxiety in them is liable to imprisonment of up to one year or a fine of up to 720 daily rates. As regards the subjective element, Section 107 StGB has the special feature that the heightened form of intent known as intention on the part of the perpetrator to instil fear and anxiety in the threatened person is a prerequisite for criminal liability. If this intention is lacking, the elements of the offence are not fulfilled.
Since the basic offence under Section 107(1) StGB carries a penalty of up to one year, the case falls within the subject-matter jurisdiction of the district court (Section 30(1) no. 1 of the Code of Criminal Procedure, StPO). Only in the case of the aggravated forms under subsection 2 does the regional court have jurisdiction. (The proceedings of the main hearing).
As an aggravated offence, Section 107(2) StGB provides for a significantly more severe penalty of up to three years’ imprisonment. Section 107(2) StGB initially focuses on dangerous threats involving particularly serious harm. This offence covers in particular threats of death, considerable mutilation or conspicuous disfigurement, kidnapping, arson, endangerment by nuclear energy, ionising radiation or explosives, and the destruction of a person’s economic existence or social standing. In all these cases, a precise examination of the meaning and dangerousness of the threat is required.
Legal scholars and case law recognise that people – especially when they are emotional and/or disinhibited by intoxicants – often tend to exaggerate wildly in their statements or threats. Accordingly, the circumstances of the individual case, which are important in any criminal case anyway, take on particular significance in the case of dangerous threat. Despite the wording “I’ll kill you”, it is therefore quite conceivable that the aggravating circumstance under Section 107(2) StGB is not fulfilled.
Section 107(2) StGB also applies if a dangerous threat places the threatened person or a person close to them in a state of agony for a prolonged period of time. In the case of particularly serious consequences, Section 107(3) StGB triggers the stricter aggravated offence of aggravated coercion (Section 106(2) StGB). If the dangerous threat results in the suicide or attempted suicide of the threatened person or of a person affected by the dangerous threat, the penalty even ranges from one to ten years’ imprisonment.
When is it more likely to be a dangerous threat – and when not?
Example 1: Employer A, annoyed but in a casual tone, says to employee B when B arrives late for an appointment: “Heast, ich da’schlog di.” (Viennese dialect, roughly: “Hey, I’ll kill you.”)
Although “erschlagen” literally means beating someone to death, the actual dangerousness of the statement is open to doubt in certain situations and social settings in which such exaggerated phrases are common and are simply used to express one’s own displeasure. This is also confirmed by established case law. If such statements are not accompanied by circumstances suggesting that the threat is objectively dangerous, criminal liability under Section 107(1) and in particular under subsection 2 StGB is questionable.
Example 2: Cuckolded husband A bursts into the marital bedroom and catches his wife B and her lover C in flagranti. Seething with rage, he swings a baseball bat in his hand and shouts “ich da’schlag euch!” (“I’ll kill you both!”).
In this case, it is hard to imagine any scenario in which doubts about the dangerousness of the threat would arise, and criminal liability under Section 107(1) and (2) StGB is quite possible.
Example 3: Pupil A calls his school from a withheld number and, disguising his voice, warns that he knows from a reliable source that someone has hidden a bomb at the school and that it is set to explode during the course of the morning.
Even if A intends to instil fear and anxiety in the school, he is not criminally liable for dangerous threat under Section 107 StGB if he does not try to create the impression that the “detonation” depends on his will.
Example 4: A pushes past B in a long queue for an event. Annoyed, B calls after A: “Man sieht sich im Leben immer zweimal!” (“We’ll meet again!”). B does not hold out the prospect of any specific harm to A. Criminal liability under Section 107(1) StGB is out of the question here.
Dangerous threat: tips from defence practice
Section 107 StGB is a good example of how even small details of a set of facts can have a major influence on criminal liability. Of central importance is, in particular, what exactly was said or announced, against whom the announced harm was directed, whether the statement was to be understood as the announcement of a future harm that could be influenced, and whether it was objectively capable of causing well-founded concern. The exact wording, any (accompanying) gestures, the addressee of the threat and the personal history between the alleged threatening person and the allegedly threatened person can be decisive for criminal liability. Supposedly “small” differences in wording in particular can determine whether the elements of the offence under Section 107 StGB are actually fulfilled.
Care must be taken to distinguish it from other offences. If a dangerous threat (also) pursues a purpose other than instilling fear and anxiety in the threatened person, other offences that are generally punished more severely may come into consideration (e.g. (aggravated) coercion under Sections 105, 106 or (aggravated) extortion under Sections 144, 145 StGB, or even sexual offences such as sexual coercion under Section 202 StGB)
Moreover, spontaneous statements such as “I only said that in the heat of the moment” or “I would never really have done it anyway” are not in themselves capable of eliminating the fulfilment of the elements of the offence. Section 107 StGB requires neither the intention to carry out the harm threatened nor that the victim actually feels afraid. Finally, dangerous threats under Section 107(2) StGB are also frequently the index offences for placement in forensic therapeutic centres (formerly institutions for mentally abnormal offenders) under Section 21(1) StGB.
Conclusion: legal classification and the importance of early advice
While in the field of judicial criminal law one may primarily think of bodily injury or property offences, purely verbal lapses, among other things, can also have consequences under criminal law if they fulfil the elements of the offence of dangerous threat described above. Allegations under Section 107 StGB are often underestimated, yet aggravated constellations carry considerable penalties, and under certain circumstances, if the accused’s defence statement is poorly handled, dangerous threats can even turn into more serious allegations such as extortion. Whether a dangerous threat can actually be affirmed in legal terms or proven in the specific case can only be reliably assessed on the basis of the exact facts.
Although it may not seem so at first glance, the offence of dangerous threat is quite complex. Early advice on criminal law can therefore make a decisive contribution to avoiding unnecessary or even serious legal disadvantages.
FAQ: Frequently asked questions about dangerous threat in Austria
Under Section 74(1) no. 5 StGB, a dangerous threat exists if someone announces a future harm directed against legally protected interests such as physical integrity, liberty, honour or property. The threat must be objectively capable of causing well-founded concern in the person affected. The specific circumstances of the individual case are decisive.
In Austria, dangerous threat under Section 107(1) StGB is punishable by imprisonment of up to one year or a fine of up to 720 daily rates. For aggravated forms under Section 107(2) StGB, the prison sentence can increase to up to three years. Under certain conditions, even more severe consequences under criminal law may follow.
Yes. For criminal liability for dangerous threat, the victim does not actually have to feel afraid. What matters is whether the threat is objectively capable of causing well-founded concern, taking into account the specific circumstances. Whether the person concerned actually took the threat seriously may serve as circumstantial evidence, but it is not decisive for the fulfilment of the elements of the offence.
No. Even a drastic statement such as “I’ll kill you” is not automatically to be assessed as a dangerous threat under Section 107 StGB. In addition to the wording, the decisive factors are the accompanying circumstances, the relationship between those involved and whether the statement is objectively to be understood as a dangerous threat (in the specific context).
A threat made during an argument, out of anger or in the heat of the moment can also be a criminal offence. The mere claim that a statement was not meant seriously does not automatically rule out criminal liability. The statutory requirements and the specific circumstances of the individual case are decisive.
Yes. A dangerous threat can be made orally, by telephone, in writing or through gestures and actions. WhatsApp messages, text messages, emails or other written communications can therefore also be relevant under criminal law if they meet the requirements of Section 107 StGB.
No. For criminal liability for dangerous threat, it is not necessary for the perpetrator to actually want to carry out the harm threatened, or even to be able to carry it out at all. One of the decisive factors is whether the threat is objectively capable of causing well-founded concern. In addition, Section 107 StGB requires the statutory intention to instil fear and anxiety in the threatened person.
A warning of a danger does not, in principle, fulfil the elements of the offence of dangerous threat. What is decisive, however, is whether the speaker creates the impression that the occurrence of the announced harm depends, or is meant to depend, on their own will. Anyone who merely warns of an event without claiming or suggesting such influence is generally not automatically criminally liable under Section 107 StGB.
In the case of dangerous threat under Section 107 StGB, the perpetrator must act with the intention of instilling fear and anxiety in another person. In the case of coercion under Sections 105 et seq. StGB, on the other hand, the focus is on forcing a particular behaviour by means of violence or dangerous threat. Which classification under criminal law applies depends on the specific facts and in particular on the purpose of the act.
Whether proceedings for dangerous threat can be discontinued or a criminal allegation successfully refuted depends on the specific circumstances and the available evidence. Of particular importance are the exact wording, possible witnesses, messages, accompanying gestures and the required subjective element of the offence. A careful examination under criminal law can help to identify allegations that are not legally sustainable.
Anyone who has been reported for dangerous threat under Section 107 StGB should seek advice on criminal law at an early stage. Even small details can be decisive for the legal assessment. MPW Rechtsanwälte examine the facts, assess possible defence strategies and provide support in the further steps of the proceedings.
