Coercion

Coercion

Coercion under Section 105 of the Criminal Code occurs when a person is compelled by force or dangerous threat to perform, omit, or tolerate an act. The focus is on unlawful compulsion: The affected person can no longer freely follow their will because they cannot practically escape the announced or exerted influence. Force refers to any physical exertion capable of breaking resistance. A dangerous threat exists when a significant harm is held out, capable of generating justified fear. This provision protects freedom of decision and distinguishes clear coercive situations from socially customary pressure.

Coercion is the unlawful forcing of a behavior through violence or dangerous threat that significantly impairs a person’s free will.

objective elements of the offence

The objective elements of coercion under Section 105 of the Criminal Code encompass any outwardly recognizable act by which a person is compelled by force or dangerous threat to perform, tolerate, or omit a specific act. The focus is on externally perceptible compulsion, which is capable of significantly restricting the free will of the affected person. The norm protects personal freedom and the ability to make one’s own decisions without undue influence.

Any situation is covered by the offense where a person is compelled by physical influence or a significant harm held out to submit to an externally determined will. An objectively recognizable pressure is required, which gives the affected person realistic and plausible reasons to comply with the perpetrator’s demands. The perpetrator’s internal motivation is irrelevant for the objective elements of the offense. Only the external circumstances and their actual effect on the freedom of decision are decisive.

Steps of legal assessment

Perpetrator:

The perpetrator can be any person who exerts force or makes a dangerous threat. No special characteristics are required. Persons who facilitate the compulsion through contributions such as conveying the threat, creating a threatening atmosphere, or providing physical support can also be considered perpetrators or accomplices.

Object of the Offense:

The object of the offense is any person whose free will is impaired by force or dangerous threat. The right to make one’s own decisions without undue influence and pressure is protected.

Act:

Any conduct by which force or a dangerous threat is exerted constitutes the objective elements of the offense.

Force is any physical exertion capable of breaking resistance or restricting the freedom of action of the affected person.

A dangerous threat exists when a significant harm is held out, capable of generating justified fear. This includes, in particular, threats of bodily harm, significant financial disadvantages, or other serious detriments that are to be taken seriously from an objective observer’s perspective.

Typical manifestations include:

• Threat of physical force to compel an act.
• Threat of significant financial or personal disadvantages.
• Use of physical force to break resistance.
• Creation of a threatening atmosphere that conveys an imminent danger.

It is crucial that the influence is objectively capable of bringing about the demanded act, toleration, or omission.

Result of the Offense:

The objective result of the offense occurs when the affected person performs, omits, or tolerates the demanded act due to the exerted force or dangerous threat. It is sufficient that the behavior of the affected person is causally attributable to the exerted compulsion. Additional harm is not required.

Causality:

Causal is any act of the perpetrator without which the compelled result would not have occurred or not in this form. This also includes preparatory or supporting contributions, provided they are causal for the coercive effect.

Objective Attribution:

Objective attribution

The result is objectively attributable if the perpetrator’s conduct created or increased a legally disapproved danger to the victim’s free will and this danger materialized in the victim’s compelled behavior. Socially customary urging or legitimate influence do not constitute such a danger.

Qualifying circumstances

Section 105 of the Criminal Code contains no typical qualifications in the objective elements of the offense.

Social Adequacy under Subsection 2

The act is not unlawful if the force or threat, by its nature and purpose, does not violate good morals. This exception has a narrow scope. It only applies to situations where the exerted influence is socially accepted and proportionate. Force or threats that violate the physical integrity or dignity of the affected person are never socially adequate.

Sebastian Riedlmair
Harlander & Partner Attorneys „Für eine strafbare Nötigung zählt nicht die subjektive Empfindlichkeit des Opfers, sondern der objektiv erkennbare Zwang, der seine Entscheidungsfreiheit tatsächlich bricht.“

Distinction from other offences

The offense of coercion under Section 105 of the Criminal Code exists when a person is compelled to a specific act by force or dangerous threat, and their free will is thereby significantly restricted. Decisive is the objective pressure exerted on the affected person, forcing them into an act they would not have performed without the influence.

• Section 99 of the Criminal Code – Deprivation of Liberty: This covers the mere detention or imprisonment of a person against or without their will. The focus is on restricting freedom of movement. If no act, toleration, or omission is compelled, it remains Section 99 of the Criminal Code. Only when the detention serves to compel a specific act does coercion also come into consideration.
• Section 102 of the Criminal Code – Extortionate Kidnapping: This offense requires a situation of gaining control with the aim of exerting pressure on a third party. The focus is on the extortion situation. Section 105 of the Criminal Code, however, concerns direct compulsion against the victim themselves. Both offenses overlap if the gaining of control over a victim is simultaneously used to compel an act from the kidnapped person.
• Section 106 of the Criminal Code – Aggravated Coercion: Section 106 of the Criminal Code represents a qualified form of coercion and requires a particularly dangerous or severe type of compulsion, for example, through qualified threats or by causing serious harm. Section 106 of the Criminal Code builds upon Section 105 of the Criminal Code and supersedes it when the conditions for the qualified offense are met.
• Section 107 of the Criminal Code – Dangerous Threat: Dangerous threat under Section 107 of the Criminal Code is an independent offense. It covers the holding out of a significant harm without necessarily leading to a compelled act. Coercion, however, requires that the compulsion leads to an act. Where the threat alone is already punishable and no act is compelled, it remains Section 107 of the Criminal Code.

Concurrences:

Genuine Concurrence:

True concurrence exists when further independent offenses are added to coercion, such as deprivation of liberty under Section 99 of the Criminal Code, bodily harm, or independent threat offenses. The exertion of compulsion then establishes several independent criminal liabilities.

Spurious Concurrence:

Supersession according to the principle of specialty is only considered if a more specific offense fully covers the exertion of compulsion. In cases of qualified coercion, Section 106 of the Criminal Code supersedes the basic offense of Section 105 of the Criminal Code. In all other cases, coercion remains.

Multiple Offenses:

Whoever coerces several persons at different times or in several separate incidents commits multiple independent offenses. The individual incidents are assessed separately.

Continued Action:

A prolonged coercive situation constitutes a single offense as long as force or threat is maintained without significant interruption and the compulsion pursues an identical behavioral purpose. The offense ends as soon as the compulsion or the purpose of the influence ceases.

Burden of proof and evaluation of evidence

Public Prosecutor’s Office:

The public prosecutor’s office bears the burden of proof for the existence of force or dangerous threat, for its specific impact on the victim’s freedom of decision, and for the causal link between the means of compulsion and the compelled behavior. It must prove that the affected person was objectively compelled by the influence to perform, tolerate, or omit an act. It must also be proven that the influence was serious, suitable, and outwardly recognizable, thereby creating an actual coercive situation from which the victim could not escape.

Court:

The court examines and evaluates all evidence in its overall context. It does not use unsuitable or unlawfully obtained evidence. Decisive is whether the compulsion was objectively recognizable, whether the force or threat was truly capable of breaking free will, and whether the victim was actually compelled to the demanded behavior. The court determines whether a coercive mechanism existed that supports the offense and substantially undermines the protected freedom of decision.

Accused Person:

The accused person bears no burden of proof. However, they can point out doubts regarding the alleged use of force, the seriousness or quality of the threat, the actual influence on the formation of will, or the causal link between the threat, force, and the victim’s behavior. They can also point to contradictions, gaps in evidence, or unclear expert opinions.

Typical evidence includes video or surveillance material related to acts of violence or threatening scenarios, digital communication histories, messages of a threatening nature, audio recordings, location data, traces at locations or on objects indicating a coercive effect, as well as documentation of physical injuries or psychological reactions consistent with the alleged use of force or threat. In special cases, psychological or medical expert opinions may also be considered, particularly when assessing the seriousness of the threat or the coercive effect of the force.

Peter Harlander
Harlander & Partner Rechtsanwälte „Gerichte überzeugen nicht Überschriften, sondern klar belegbare Zwangssituationen, die zeigen, wie Gewalt oder Drohung die Entscheidungsfreiheit des Opfers tatsächlich gebrochen haben.“

Practical example

• Threat of a specific personal disadvantage: A person asks an acquaintance to make a specific statement and announces that otherwise, they will forward an incriminating private video to their family. The victim realizes that the publication would constitute a sensitive invasion of their privacy and complies with the demand. The threat is concrete, serious, and objectively capable of inducing justified fear.
• Compelling an omission through credible physical intimidation: A perpetrator encounters a witness to a previous dispute and tells her that she “will get into trouble” if she reports the incident to the police. He approaches her so closely that she seriously considers an imminent physical assault possible. The witness later refrains from testifying because the threat is credible and immediate. The threat remains below the threshold for aggravated coercion but is clearly dangerous in the sense of Section 105 of the Criminal Code.

These examples show that merely creating or maintaining serious compulsion, based on force or dangerous threat, fulfills the elements of coercion under Section 105 of the Criminal Code. Decisive is the objectively recognizable influence on the victim’s freedom of decision, which extends to the point where they perform or omit the demanded behavior only because of it. It is irrelevant whether the threat is personal, social, physical, or situational; what is crucial is the suitability of the means of compulsion to break free will and induce externally determined behavior.

subjective elements of the offence

The perpetrator acts intentionally. They know or at least seriously accept that they are influencing a person through force or dangerous threat and thereby impairing their free will. They recognize that their action aims to induce the victim to a specific behavior and consciously accept the resulting coercive situation as a possible consequence.

It is required that the perpetrator understands that their influence is objectively capable of compelling the victim to the demanded act, toleration, or omission. It is sufficient that they consider the effect of the threat or force possible and accept it. Further specific intent is not necessary.

No intent exists if the perpetrator genuinely assumes that the victim acts voluntarily and does not understand or need to understand the influence as compulsion. This applies, for example, to cases where the perpetrator mistakenly assumes that the other person agrees to the behavior or does not feel threatened. Whoever believes that the affected person would act without pressure does not fulfill the subjective elements of the offense.

It is crucial that the perpetrator consciously creates a coercive effect or at least accepts it, and that they recognize that their behavior externally determines the victim’s freedom of decision. Whoever knows or at least condones that force or threat breaks free will acts intentionally and thus fulfills the subjective elements of the offense under Section 105 of the Criminal Code.

Culpability and mistakes

Mistake of prohibition:

A mistake of prohibition only excuses if it was unavoidable. Anyone who engages in conduct that recognizably interferes with the rights of others cannot claim that they did not recognize the illegality. Everyone is obliged to inform themselves about the legal limits of their actions. Mere ignorance or a reckless error does not absolve one of responsibility.

Principle of culpability:

Only those who act culpably are punishable. Intentional offenses require that the perpetrator recognizes the essential events and at least accepts them as a possibility. If this intent is lacking, for example, because the perpetrator mistakenly assumes that their behavior is permitted or is voluntarily supported, at most negligence exists. This is not sufficient for intentional offenses.

Incapacity to be held accountable:

No guilt is attributed to someone who, at the time of the offense, was unable to recognize the injustice of their actions or to act in accordance with this insight due to a severe mental disorder, a pathological mental impairment, or a significant inability to control their actions. In case of corresponding doubts, a psychiatric assessment will be obtained.

Excusable state of necessity:

An excusable state of necessity may exist if the perpetrator acts in an extreme situation of duress in order to avert an acute danger to their own life or the lives of others. The behavior remains unlawful but can have a mitigating or excusing effect if there was no other way out.

Putative self-defense:

Anyone who mistakenly believes that they are entitled to an act of defense acts without intent if the error was serious and comprehensible. Such an error can reduce or exclude guilt. However, if a breach of duty of care remains, a negligent or mitigating assessment comes into consideration, but not a justification.

Extinction of punishment and diversion

Diversion:

Diversion is generally possible for Section 105 of the Criminal Code, but only in cases of minor guilt and manageable coercive situations. Coercion covers a broad spectrum, which is why a diversionary resolution is only considered if the means of compulsion used was minor, short-term, or without serious consequences.

Diversion may be considered if

• the perpetrator’s guilt is minor,
• the threat or force was only of minor significance,
• the victim was not significantly intimidated or endangered,
• no lasting coercive mechanism was established,
• the facts are manageable and clear,
• and the perpetrator is immediately cooperative.

If diversion is considered, the court can order monetary payments, community service, or victim-offender mediation.
Diversion leads to no conviction and no criminal record entry.

Exclusion of Diversion:

Diversion is excluded if

• the victim was significantly threatened or physically assaulted,
• the perpetrator used massive force or made a serious dangerous threat,
• a clear or persistent compulsion was established,
• or if the behavior as a whole constitutes a serious violation of personal protected rights.

Only in cases of minor guilt, misunderstandings about the effect of the threat, or immediate insight can the court examine whether an exceptional case exists.

Sebastian Riedlmair
Harlander & Partner Attorneys „Strafzumessung in Fällen der Nötigung bedeutet, die gesetzliche Strafdrohung mit der Intensität des ausgeübten Zwangs, der Ernstlichkeit der Drohung und der tatsächlichen Beeinträchtigung der Entscheidungsfreiheit des Opfers in Einklang zu bringen.“

Sentencing and consequences

The court determines the penalty based on the nature and intensity of the violence or dangerous threat used, the duration and effect of the coercive situation, and the extent to which the victim’s free will was actually impaired. Crucial is whether the perpetrator deliberately places or keeps the victim in a situation where they cannot escape the demanded behavior, and whether the use of coercion is systematic or intensified.

Aggravating Factors Exist in Particular If

• the coercive situation is maintained for an extended period,
• the threat appears particularly compelling, realistic, or severe,
• violence is used or the victim suffers significant psychological distress,
• the perpetrator acts repeatedly or in an organized manner,
• the threat concerns significant personal or economic disadvantages,
• or relevant prior convictions already exist.

Mitigating Factors Include

• a clean record,
• a comprehensive confession and demonstrable insight,
• an immediate cessation of coercion,
• serious efforts towards restitution,
• an exceptional psychological stress situation of the perpetrator,
• or excessively long proceedings.

The court may prison sentence a conditionally suspend if it does not exceed two years and the perpetrator shows a positive social prognosis. For longer sentences, a partially conditional suspension may be considered. Additionally, the court may order directives, such as therapy, restitution, counseling, or other measures that support legal rehabilitation.

Penalty Range

For the basic offense of coercion under Section 105 of the Criminal Code, the penalty range is imprisonment for up to one year or a fine of up to 720 daily rates. This penalty range applies whenever a person is compelled by force or dangerous threat to perform, tolerate, or refrain from a specific act. Decisive is the perceptible impairment of the victim’s free will by the coercive means employed.

A milder penalty range does not exist. The legislator treats each form of unlawful coercion as an independent wrong, regardless of whether the coercive effect is more or less pronounced in individual cases.

The higher penalty range of § 106 StGB applies if the coercion is committed under particularly aggravating or intensive circumstances, for example, if the threat is particularly drastic, the use of force is of considerable weight, or the coercion exhibits a significantly increased level of danger. In these cases, the act is no longer assessed under § 105 StGB, but under § 106 StGB.

A statutory mitigation of penalty through voluntary withdrawal of the threat or through subsequent de-escalation of the situation is not provided for in the law. Such conduct can only be taken into account by the court within the existing penalty range, but cannot lead to a reduction of the statutory penalty threat.

Peter Harlander
Harlander & Partner Rechtsanwälte „Geldstrafen sind bei der Nötigung häufig ausreichend, doch dort, wo beharrlicher Druck, intensivere Drohungen oder eine spürbare Einschränkung der Entscheidungsfreiheit über einen längeren Zeitraum wirken, rückt regelmäßig die Freiheitsstrafe in den Vordergrund.“

Monetary Penalty – Day-fine System

Austrian criminal law calculates monetary penalties according to the day-fine system. The number of day-fines depends on the guilt, the amount per day depends on the financial capacity. In this way, the penalty is adapted to the personal circumstances and yet remains noticeable.

• Range: up to 720 day-fines – at least 4 euros, at most 5,000 euros per day.
• Practical formula: Approximately 6 months imprisonment corresponds to around 360 day-fines. This conversion serves only as orientation and is not a rigid scheme.
• In case of non-payment: The court can impose a substitute custodial sentence. As a rule, the following applies: 1 day of substitute custodial sentence corresponds to 2 day-fines.

Note:

In the case of coercion pursuant to § 105 StGB, a fine is realistically possible in many cases, especially if the means of coercion had only a minor impact and no serious consequences have occurred. Imprisonment only becomes more prominent if the threat or violence was more intensive, more persistent, or associated with noticeable effects.

Imprisonment and (partially) suspended sentence

§ 37 StGB: If the statutory penalty threat extends up to five years, the court may impose a fine instead of a short prison sentence of no more than one year. This possibility exists in full for § 105 StGB, because the penalty range is up to one year imprisonment or a fine of up to 720 daily rates. The court can therefore expressly examine whether a short prison sentence is replaced by a fine.

§ 43 StGB: A prison sentence may be conditionally suspended if it does not exceed two years and the offender has a positive social prognosis.
This possibility exists without restriction in the case of § 105 StGB, as prison sentences of up to one year are possible. In practice, conditional suspension is frequently applied in cases of coercion if the threat or violence was minor and there was no pronounced pattern of coercion.

§ 43a StGB: Partial conditional suspension allows the combination of an unconditional and a conditional part of a prison sentence. It is possible for penalties between more than six months and up to two years. Since, in the basic offense of § 105 StGB, prison sentences of more than six months can be imposed in individual cases, a partial conditional suspension is generally possible, especially in one-off, less intensive coercion situations. However, it is applied more cautiously in the case of prolonged or particularly drastic threatening scenarios.

§§ 50 to 52 StGB: The court can additionally issue instructions and order probation assistance. Typical instructions concern, for example, compensation for damages, contact bans, anti-aggression training, counseling sessions, or other measures that serve to stabilize the offender. The goal is lasting legal probation and the avoidance of further coercive situations, especially in cases where the victim has been intimidated for a longer period of time or there is a particular need for protection.

Jurisdiction of the courts

Subject-matter Jurisdiction

In the case of coercion pursuant to § 105 StGB, the district court is generally responsible, as the penalty range extends up to one year imprisonment or a fine. It is a misdemeanor that is regularly heard before the individual judge.

The regional court only becomes competent if it becomes apparent in the proceedings that the act is no longer within the scope of § 105 StGB, but the more serious form of coercion is fulfilled. In these cases, the lay judge court is competent, because the higher penalty range opens up the decision-making competence of the regional court.

A jury court is not provided for, as the penalty threat does not meet the requirements for its jurisdiction either in the case of § 105 StGB or in the qualified cases.

Local Jurisdiction

The court of the place of the offense has jurisdiction. The following is particularly relevant:

• where the threat was uttered or the violence was used,
• where the victim was induced to engage in certain conduct,
• or where the focus of the coercion lay.

If the place of the offense cannot be precisely determined, jurisdiction is determined by

• the residence of the accused person,
• the place of arrest,
• or the seat of the competent public prosecutor’s office.

The proceedings are conducted where a practical and orderly implementation is best guaranteed.

Hierarchy of Courts

An appeal to the regional court is possible against a judgment of the district court.
Decisions of the regional court can subsequently be challenged by appeal on points of nullity or further appeal to the Supreme Court.

Sebastian Riedlmair
Harlander & Partner Attorneys „Zivilansprüche machen im Nötigungsverfahren sichtbar, dass das Opfer nicht nur Objekt des Zwangs, sondern auch Inhaber durchsetzbarer Rechte bleibt.“

Civil claims in criminal proceedings

In the case of coercion pursuant to § 105 StGB, the victim themselves or close relatives may assert civil law claims as private parties in the criminal proceedings. These include pain and suffering, therapy and treatment costs, loss of earnings, childcare costs, costs of psychological support, as well as compensation for emotional distress and other consequential damages. These claims are linked to the experienced threat or violence, the impairment of freedom of decision, and the resulting psychological or physical burdens.

The private party joinder suspends the statute of limitations for all asserted claims as long as the criminal proceedings are pending. Only after a legally binding conclusion does the limitation period begin to run again, insofar as the claim has not been fully awarded.

A voluntary compensation for damages, such as a sincere apology, financial compensation, or active support of the victim, can have a mitigating effect on the penalty, provided that it is done in a timely manner, credibly, and completely.

However, if the perpetrator has built up a particularly intimidating threat, exerted noticeable violence, caused significant psychological or physical effects, or ruthlessly exploited the coercive situation, a subsequent remedy will generally lose its mitigating effect. In such cases, it can no longer outweigh the injustice committed.

Overview of criminal proceedings

• tart of investigation: formal suspect status upon concrete suspicion; from that point onward, full rights of the accused apply.
• Police / Public Prosecutor: the public prosecutor directs the proceedings, the criminal police conduct the investigation; objective: dismissal of the case, diversion, or indictment.
• Interrogation of the accused: prior instruction on rights; involvement of a defense attorney leads to postponement; right to remain silent remains unaffected.
• Access to the case file: available at the police, public prosecutor’s office, or court; also includes evidence items (insofar as the purpose of the investigation is not jeopardized).
• Main hearing: oral taking of evidence and judgment; decision on civil claims joined to the criminal proceedings.

Rights of the accused

• Information & defense: right to notification, legal aid, free choice of defense counsel, translation assistance, and submission of evidence motions.
• Silence & counsel: right to remain silent at any time; if a defense attorney is requested, the interrogation must be postponed.
• Duty to inform: prompt notification of suspicion and rights; exceptions only permitted to safeguard the purpose of the investigation.
• Practical access to files: investigation and trial records; access by third parties is restricted to protect the accused.

Practical guidance and behavioural advice

1. Maintain silence.
   A brief statement is sufficient: “I am exercising my right to remain silent and will first speak with my defense counsel.”
   This right applies from the very first interrogation by the police or the public prosecutor.
2. Contact defense counsel immediately.
   No statement should be made without access to the investigation files. Only after reviewing the files can the defense assess which strategy and evidence preservation measures are appropriate.
3. Secure evidence immediately.
   Obtain medical reports; take photographs with date and scale and, where appropriate, X-ray or CT images. Store clothing, objects, and digital records separately. Prepare a witness list and contemporaneous recollection notes within two days at the latest.
4. Do not contact the opposing party.
   Your own messages, calls, or posts may be used as evidence against you. All communication should take place exclusively through your defense counsel.
5. Secure video and data recordings in time.
   Surveillance videos from public transport, venues, or property management systems are often automatically deleted after only a few days. Requests for data preservation must therefore be submitted immediately to the operators, the police, or the public prosecutor’s office.
6. Document searches and seizures.
   In cases of house searches or seizures, you should request a copy of the warrant or record. Note the date, time, persons involved, and all items taken.
7. In case of arrest: make no statements about the matter.
   Insist on immediate notification of your defense counsel. Pre-trial detention may only be imposed if there is strong suspicion of guilt and an additional ground for detention. Less severe measures (e.g., pledge, reporting duty, contact ban) must take precedence.
8. Prepare compensation for damages strategically.
   Payments or offers of reparation should be handled and documented exclusively through defense counsel. Structured compensation for damages has a positive effect on diversion and sentencing.

Your Benefits with Legal Assistance

Proceedings for coercion are among the more demanding areas of criminal law. The accusations concern the core of personal freedom of decision and are often characterized by complex questions regarding threat intensity, perception situations, voluntary behavior, and psychological pressure effect. It is often disputed whether the threat was actually to be classified as dangerous or whether the victim’s behavior was influenced by other personal, social, or professional factors.

Whether a punishable coercion exists depends largely on whether the perpetrator’s influence was objectively capable of breaking the free will and determining the victim’s behavior. Even small differences in the wording of a threat, the specific encounter situation, or the existing relationship between the parties involved can decisively change the legal assessment.

Early legal representation ensures that evidence is correctly collected, statements are properly classified, and reliable arguments are developed. Only a precise legal analysis shows whether a punishable coercion exists or whether the accusation is based on misunderstandings, overinterpretations, or unclear circumstances.

Our law firm

• examines whether a dangerous threat or violence was legally present or whether the action is to be assessed differently in the specific context,
• analyzes statements, messages, and encounter situations for contradictions or inconsistent accusations,
• reliably protects you throughout the proceedings from one-sided representations,
• and develops a structured defense strategy that fully and realistically reflects your actual situation.

Clear and professional representation ensures that the accusation of coercion is legally correctly examined and that all relevant circumstances are taken into account.

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