Theft (Austria)

In Austrian criminal law, theft is a criminal offense against property according to Section 127 of the Criminal Code. Since the wording largely corresponds to that of the German Criminal Code, the considerations made on the individual elements of the offense also apply to Austrian criminal law .

Offense

The following is the wording of Section 127 of the Criminal Code:

Anyone who takes away another person's movable property with the intention of illegally enriching himself or a third party by appropriating it is punishable by imprisonment of up to six months or a fine of up to 360 daily rates.

In addition, it must be included in the extended intent that the perpetrator wants to unlawfully enrich himself or a third party through appropriation . Certain things, for example documents, ATM cards or license plates, cannot therefore be the subject of theft, or better: cannot be stolen because the perpetrator cannot enrich himself through (unlawful) appropriation . Documents, ATM cards etc. have no legal market value, from which it follows that one cannot enrich one's assets through their illegal appropriation - because they are financially worthless. Because the victim incurs replacement costs, the perpetrator has not enriched his assets. For documents there is therefore the offense of document suppression ( § 229 StGB), for bank cards and other cashless means of payment the offense of alienation of cashless means of payment ( § 241e StGB), which makes the use for unlawful enrichment a punishable offense. All elements of the offense (especially: someone else's movable property; removal from someone else's custody; appropriation; enrichment) must be covered by the offender's intent at the time of the offense .

Qualified facts

The qualified facts are fulfilled if there are additional features of the theft:

Serious theft (§ 128 StGB)

(1) Anyone who commits a theft shall be punished with a prison sentence of up to three years

during a conflagration, a flood or a general distress or distress that has happened to the person being stolen or by taking advantage of a condition of the person being stolen, which makes him helpless,
in a room serving religious practice or on a thing that is dedicated to worship or veneration by a church or religious society existing in Germany,
in a thing of generally recognized scientific, ethnological, artistic or historical value that is in a generally accessible collection or in another such location or in a public building,
an essential part of the critical infrastructure (Section 74 Paragraph 1 Item 11) or
on an item whose value exceeds 5,000 euros.

(2) Anyone who steals an item whose value exceeds 300,000 euros is punished with imprisonment from one to ten years.

Theft by burglary or with weapons (Section 129 StGB)

(1) A prison sentence of up to three years is to be imposed on anyone who commits theft in order to carry out the act

breaks into a building, a means of transport, a storage area or any other enclosed space, enters with a counterfeit or illegally obtained key, another tool not intended for proper opening or an illegally obtained access code,
breaks open a container or opens it with one of the means mentioned in item 1,
a locking device breaks or opens with one of the means mentioned in Z 1 or
electronically overrides an access block.

(2) Anyone who commits a theft shall be punished with a prison sentence of six months to five years

by entering a place of residence in the manner specified in paragraph 1 no. 1 or 4, or
in which he or, with his knowledge, another participant (§ 12) carries a weapon or some other means with him to overcome or prevent a person's resistance.

Commercial theft or theft within the framework of a criminal organization (Section 130 StGB)

(1) Anyone who commits theft on a commercial basis or as a member of a criminal organization with the participation (§ 12) of another member of this organization is punishable by imprisonment for up to three years.

(2) Anyone who commits a serious theft in accordance with Section 128, Paragraph 1 or a theft in accordance with Section 129, Paragraph 1 in the manner described in Paragraph 1 shall be punished with imprisonment for a term of between six months and five years.

(3) Anyone who commits a theft in accordance with Section 129, Paragraph 2 in the manner described in Paragraph 1 shall be punished with imprisonment of one to ten years.

Commercial activity exists if the perpetrator commits the act with the intention of generating continuous income through the repeated inspection.

Predatory theft (§ 131 StGB)

Anyone who has been caught in the act of theft, uses violence against a person or threatens them with a current danger to life or limb (Section 89) in order to obtain the stolen item for themselves or a third party is subject to imprisonment from six months to five years, if the use of force results in bodily harm with severe permanent consequences (Section 85) or the death of a person, to be punished with imprisonment of five to fifteen years.

Differentiation from other offenses

Embezzlement (Section 134 of the Criminal Code): The offender's property came into custody without any action on the part of the perpetrator (for example because he found it, was handed over to him by mistake, etc.) before the offender appropriated it to himself or a third party with intent to enrich it.
Embezzlement (Section 133 of the Criminal Code): The perpetrator appropriates goods that have been entrusted to him or to a third party with intent to enrich.
Permanent deprivation of property (Section 135 of the Criminal Code): The perpetrator harms another person by permanently withdrawing a movable property from his / her custody without appropriating it to himself or to another.
Withdrawal of energy (Section 132 of the Criminal Code) makes the unauthorized withdrawal of energy from a plant for the purpose of generating, transforming, supplying or storing energy with intent to enrich it a punishable offense.
Unauthorized use of vehicles (Section 136 StGB) is committed by anyone who uses a vehicle that is set up to be driven by machine power without the consent of the authorized person.

The perpetrator only wants to use the vehicle, not take it away permanently with the intent to enrich it. If he wants to get rich (for example, to sell the stolen car), theft has occurred.

Intervention in foreign hunting or fishing rights (Section 137 StGB): The offender pursues game in violation of third-party hunting or fishing rights, fishes, catches or kills game or fish, appropriates it to himself or a third party with intent to enrich it, or damages or destroys property that are subject to someone else's hunting or fishing rights.

The game and the fish are ownerless, which means that there is no property , but only certain people are entitled to appropriation . The act encroaches on these rights.

Theft (§ 141 StGB): A lesser penalty ( imprisonment of up to one month or a fine of up to 60 daily rates) is threatened if someone commits a theft or another offense similar to theft(see above) out of necessity , rash or to satisfy a Desires in a thing of little value, unless a qualified form of the basic offense is realized. This theoretically significant privilege is hardly ever accepted in practice.
Robbery (Section 142 of the Criminal Code) occurs when someone with the intent to gain enrichment takes away another person's movable property by means of force or threats with a current risk to life and limb.
- In contrast to predatory theft, the perpetrator intends to commit or threaten violence from the outset .
- Robbery is also present if the victim is not taken away from the thing, but is forced to give it up himself. Violence or threats and the transfer of custody must, however, be directly temporal, otherwise the act is to be classified as extortion .
Stealing (§ 164 StGB): Anyone who sells stolen property without being a thief himself, or otherwise distributes it for the purpose of exploitation or supports the perpetrator in concealing or exploiting stolen property, is a stalker.