Constant deprivation of property
The property offense of permanent deprivation of property is regulated in Section 135 of the Austrian Criminal Code. The penalty is up to six months' imprisonment or a fine of up to 360 daily rates.
Constituent elements
The execution act consists in withdrawing a strange, not worthless thing from the custody of another. Things that the perpetrator directly owns, for example as a trustee , cannot be permanently confiscated; but this opinion is controversial in teaching. Documents and cashless means of payment cannot be the subject of this offense.
The perpetrator must have the intent have to damage the claimant permanently. He must not have the intention of enriching himself, otherwise there is a theft offense (§§ 127 ff. StGB). Furthermore, the perpetrator must not intend to compensate the victim or to return the thing; the damage must be intended to be permanent. This damage intent must already exist at the moment of removal.
Demarcation and competition problems
The appropriation, damage or destruction of the permanently confiscated property is a night offense without penalty.
The removal of a third-party document or a third-party non-cash means of payment is the suppression of documents (Section 229 (1)) or the alienation of non-cash means of payment (Section 241e).
Qualifications
The perpetrator falls under the stricter sentence of paragraph 2 (up to two years imprisonment or 360 daily rates) if it is a particularly protected thing according to § 126 paragraph 1 lines 1–6: things that are part of church service or worship are dedicated; Graves and burial sites; Memorials for the dead; public monuments; items placed under monument protection; Items of generally recognized scientific, ethnological, artistic or historical value.
Furthermore, there is a qualified permanent deprivation of property if the value of the thing exceeds a value of 5,000 euros (up to two years imprisonment or 360 daily rates) or 300,000 euros (six months to five years imprisonment).
literature
- Bertel / Schwaighofer , Austrian Criminal Law Special Part I, pp. 187–189.
