Deprivation of Liberty

Deprivation of liberty exists when a person’s physical freedom of movement is removed by detaining them against or without their will in a defined area or effectively preventing their movement. What is required is an objectively recognizable coercive situation that is not merely momentary, but of a certain duration and intensity. It can be created by imprisonment, guarding, physical violence, massive threats or comparable means. The deprivation of liberty is unlawful if there is no sustainable legal basis (for example, no police detention, no justified self-defense situation). Anyone who treats another person like an object and controls their freedom of movement crosses a clear criminal law boundary.

objective elements of the offence

The elements of deprivation of liberty according to exist if someone prevents another person from moving freely or leaving a place. It is therefore about someone restricting a person’s freedom of movement against or without their will – for example, by imprisonment, detention or threats.

It is not decisive whether violence is used. Even someone who effectively detains someone through fear, control or psychological pressure can be liable to prosecution. The only important thing is that the person concerned can no longer decide for themselves whether they want to stay or leave.

Even a brief but clear restriction can fulfill the elements of the offense. For example, if someone is locked in or detained for a few minutes, that is often enough.

Steps of legal assessment

Perpetrator:

Any person who independently determines the behavior of another or has the possibility to influence their whereabouts. Several participants can also act together.

Object of the Act:

Any living person, regardless of gender, age or relationship to the perpetrator. The protection also applies to spouses, children, people in need of care or employees.

Act:

Deprivation of liberty exists if the person concerned is detained or imprisoned against their will. Typical actions are:

• Imprisonment in an apartment, car or room,
• Locking doors or windows,
• Taking away keys or cell phones,
• Blocking the way or physical detention,
• Threats of serious disadvantages to prevent leaving.

Not every fear or pressure situation fulfills the elements of the offense. A merely internal inhibition, for example out of shame, fear of argument or emotional dependence, is not sufficient.
However, the situation is different if the threat or control is so strong that the person concerned objectively no longer has the possibility to leave because they have to expect real danger or violence. Then the psychological coercion acts like an actual barrier and is legally assessed as deprivation of liberty.

Result of the Act:

The perpetrator’s conduct must be the cause of the restriction of liberty. Whoever creates or maintains the situation bears responsibility. Anyone who supports the act of another can also be jointly responsible.

Causality:

The perpetrator’s conduct must be the cause of the restriction of liberty. Whoever creates or maintains the situation bears responsibility. Anyone who supports the act of another can also be jointly responsible.

Objective Attribution:

The success is attributable to the perpetrator if they deliberately create or allow a coercive situation to continue that the victim cannot end themselves. Only a lawful deprivation of liberty, such as by the police, court or in case of imminent danger, is permitted.

Qualifying Circumstances

Longer duration:

If the deprivation of liberty is maintained for more than one month, this is a particularly serious case. Here, there is a threat of a prison sentence of one to ten years.

Particular torment:

Anyone who detains someone in such a way that the person concerned suffers physical pain or mental torment, such as through darkness, isolation, fear or lack of care – acts in a qualified manner.

Particularly serious disadvantages:

These include cases in which the deprivation of liberty leads to significant consequences, such as health damage, psychological stress, job loss or family separation

The longer, harder or more degrading the deprivation of liberty is, the clearer the behavior is assessed as a serious injustice.

Select Your Preferred Appointment Now:Free initial consultation

Distinction from other offences

Deprivation of liberty forms the basic element of criminal acts against freedom and protects the right of every person to determine their own whereabouts.

• § 100 StGB – Kidnapping of a mentally ill or defenseless person: Concerns the removal of a mentally impaired, unconscious or otherwise helpless person in order to sexually abuse or otherwise exploit them. The intention of exploitation is decisive; the act is already completed with the kidnapping. The act is only completed with the relocation, while § 99 already applies to detention at the same location.
• § 101 StGB – Kidnapping: Covers the kidnapping or abduction of a person against or without their will in order to force them to perform, tolerate or omit a certain action. Therefore, relocation and coercive purpose are required. The offense is independent and supersedes § 99 StGB if both requirements are met.
• § 102 StGB – Hostage-taking: Exists if a person is detained or kidnapped in order to coerce a third person or authority into a certain behavior. The deprivation of liberty is here a means of extortion and is consumed by the more serious offense.
• § 105 StGB – Coercion: Aims at forcing a certain behavior through violence or threat. Deprivation of liberty and coercion can coincide if the detention is not only a means of intimidation, but an independent restriction of liberty
• § 107 StGB – Dangerous threat: Punishes the creation of fear by announcing an evil. A threat only becomes a deprivation of liberty if it is so concrete and serious that the victim objectively has no possibility to leave.
• §§ 83 to 87 StGB – Offenses against Physical Integrity: Protect physical integrity. If there are additional abuses or restraints, genuine concurrence exists because, in addition to liberty, physical integrity is also violated.

Concurrences:

• Genuine concurrence: If someone simultaneously imprisons, threatens or injures a person, they commit several independent criminal offenses. These are punished separately because several protected legal interests such as freedom, physical integrity or security are affected.
• Unreal concurrence: If the deprivation of liberty is part of a more serious crime, such as kidnapping or hostage-taking, it is not additionally punished. It is absorbed into the more serious offense because this already includes the deprivation of liberty.
• Multiplicity of acts: If someone detains several people or commits the same act multiple times, the individual actions are assessed separately. Each deprivation of liberty then counts as a separate case.
• Continued action: If the same person is detained over a longer period of time or in changing locations against their will, the court considers the entire process as a uniform act, as long as a continued intent exists. It does not matter whether the location was changed or the type of detention was altered.

Burden of proof and evaluation of evidence

• Public prosecutor’s office: bears the burden of proof for the existence of a deprivation of liberty, the duration and intensity of the detention, as well as for a possible connection between the act and the occurred consequence. It must prove that the person concerned was detained against their will or that their freedom of movement was actually restricted.
• Court: examines and assesses all evidence in the overall context. Unsuitable or illegally obtained evidence may not be used. The decisive factor is whether the victim was objectively prevented from moving and whether the accused deliberately caused or maintained this restriction.
• Accused: has no burden of proof, but may point out doubts about the voluntariness or the actual restriction. They can also point to gaps in the evidence, contradictory statements or unclear expert opinions.

Typical evidence: medical findings on fixations or injuries, witness statements on the sequence of movements, video or surveillance material, digital location data (e.g. GPS, mobile radio, smart home protocols), as well as securing traces on doors, windows or vehicles. In individual cases, psychological reports can also be decisive when it comes to the question of whether a psychological coercive situation is equivalent to deprivation of liberty.

Select Your Preferred Appointment Now:Free initial consultation

Restrictions on Liberty by Officials

If someone is detained by the police or another authority, this does not automatically constitute a punishable deprivation of liberty. Such interventions are permitted if they are based on a legal basis and are carried out proportionately.

Legally permissible measures are in particular

• Detentions according to § 35 SPG, if a person is temporarily detained for identification or to avert danger,
• provisional arrests according to § 171 StPO, if someone is caught in the act or there is a reason for arrest,
• as well as other judicially or legally ordered restrictions of liberty, for example in the context of the execution of sentences.

As long as these measures are lawfully ordered and carried out in an appropriate manner, they are not punishable.
However, the situation is different if an official abuses or exceeds their powers, i.e. detains someone without legal reason, for too long or under unreasonable conditions. In such cases, the behavior of an official can also constitute a deprivation of liberty.

Practical example

• Locking up after an argument: After a heated argument, someone locks another person in a room to “cool down”. Even if this only lasts for a short time, there is a deprivation of liberty because the victim cannot decide for themselves to leave the room.
• Detention in the car: During an argument, the driver locks the doors and does not let the passenger get out. Even without physical violence, detention against the will of the person is punishable.
• Care without consent: A person in need of care is locked in the room or fixated for safety reasons without a legal basis or express consent. Even a supposedly well-intentioned measure can constitute an unlawful deprivation of liberty.
• Blocking the way: A person is physically or by their position prevented from leaving a place in such a way that they objectively no longer have the possibility to move freely. A psychological barrier through massive intimidation can also fulfill the elements of the offense.
• Barriers through threat: Someone prevents leaving by threatening disadvantages or violence, such as “If you leave, something will happen to you”. If the victim has to take the threat seriously and has no real possibility to flee, there is also deprivation of liberty.
• Permissible interventions: Interventions by the police, judiciary or care facilities are only lawful if they are based on a legal basis and are proportionate. If this basis is missing, an official detention can also be unlawful and therefore punishable.

subjective elements of the offence

The subjective element of deprivation of liberty according to § 99 StGB requires intent. The perpetrator must know or at least seriously consider it possible that they are depriving another person of their freedom of movement against their will, and consciously decide to do so or continue to do so.

It is sufficient if the perpetrator approvingly accepts that the person concerned cannot leave the place, even if they do not intend a longer or particularly cruel restriction of liberty. Intentional deprivation of liberty exists if the detention is carried out purposefully, for example to punish, control or put someone under pressure.

No intent exists if the person stays voluntarily, for example out of fear, shame or emotional attachment, without external constraints. Also, anyone who accidentally locks up another person or negligently does not notice that they are locked up, does not act intentionally, but only negligently, which is not covered by deprivation of liberty.

The decisive factor is whether the perpetrator could and had to recognize that the person concerned is being detained against their will, and they still do nothing to restore their freedom. Intent therefore also exists if the behavior is consciously continued, although it is clear that the other person is not staying voluntarily.

Select Your Preferred Appointment Now:Free initial consultation

Culpability and mistakes

• Prohibition of error: Only excuses if the error was unavoidable. Anyone who intentionally locks up or detains a person cannot claim not to have known that this is prohibited. Everyone is obliged to inform themselves about the legal limits of their actions.
• Principle of culpability: Only those who act culpably are punishable. A deprivation of liberty requires intentional behavior. Anyone who mistakenly assumes that the person concerned is staying voluntarily, or accidentally locks them up, does not act culpably, but at most negligently, which is not covered by § 99 StGB.
• Lack of criminal responsibility: No culpability applies to someone who, at the time of the act, was unable to understand the wrongfulness of their actions or to act accordingly due to a severe mental disorder or a pathological impairment of control capacity. If doubts exist, a psychiatric assessment must be obtained.
• Excusable necessity: This exists if the act is committed in an extreme coercive situation, for example, to avert an acute danger to one’s own life or the lives of others. In such cases, the conduct may be excusable, but not lawful.
• Putative self-defense: Anyone who mistakenly believes they are entitled to detain, for example, because they assume they must avert a danger or protect someone, acts without intent if the mistake is genuine and understandable. If a breach of duty of care nevertheless remains, the conduct may have a mitigating, but not justifying effect.

Extinction of punishment and diversion

Withdrawal and Active Repentance:

Deprivation of liberty is a continuous offense. It is completed as soon as a person has been deprived of their freedom, but continues as long as this condition persists. Anyone who voluntarily and promptly releases the victim before more serious consequences occur can achieve a significant reduction in sentence or, in exceptional cases, a cancellation of sentence. The decisive factors are the voluntariness of the termination, the absence of external constraints and a recognizable insight into the injustice committed.

Subsequent Reparation:

If the perpetrator seeks help, apology, or compensation for damages after the act, this can be considered a mitigating circumstance. This also includes if they provide support to the affected person, personally apologize, or compensate for emotional and material disadvantages.

Diversion:

A diversion may be considered if the guilt is minor, the facts are clear, and the accused is cooperative. Possible measures include monetary payments, community service, probation, or victim-offender mediation. If the proceedings are concluded in this manner, there will be no conviction and no entry in the criminal record.

Exclusion of Diversion:

Diversion is not possible if the deprivation of liberty lasted longer, was associated with violence or threats, or if the victim suffered significant physical or psychological harm. However, in less serious cases, with a confession, insight, and voluntary reparation, it can represent an appropriate solution without a court conviction.

Select Your Preferred Appointment Now:Free initial consultation

Sentencing and consequences

The severity of the penalty for deprivation of liberty depends on the duration and intensity of the act, the consequences incurred, and the culpability of the perpetrator. It is crucial whether the restriction of liberty occurred briefly or over a longer period, under duress, threat, or torturous circumstances. The motive also plays a significant role, for example, whether the act was committed out of jealousy, abuse of power, or a reaction to fear.

Aggravating circumstances exist particularly when

• the deprivation of liberty was maintained over a longer period,
• the perpetrator uses violence, threats, or deception,
• the victim suffers particular torment or significant disadvantages,
• or if there are already similar acts or relevant prior convictions.

Mitigating circumstances include, for example,

• a clean record,
• a confession or signs of sincere remorse,
• a voluntary release of the victim or subsequent reparation,
• an exceptional emotional state during the act,
• or an excessively long duration of criminal proceedings.

Austrian criminal law provides for the day-fine system for fines.
The number of day-fines depends on the gravity of the guilt, and the individual day-fine on the income circumstances. This ensures the penalty remains just and comparably impactful. If the fine is not paid, a substitute custodial sentence can be imposed.

A custodial sentence can be wholly or partially suspended if it does not exceed two years and there is a positive social prognosis. In this case, the convicted person remains at liberty but must prove themselves during a probationary period of one to three years. After this period, if all conditions are met, the sentence is considered finally suspended.

The court may also issue directives, such as for reparation of damages, participation in therapy or counseling, or order probation supervision. These measures are intended to help prevent future offenses and promote the perpetrator’s social reintegration.

Penalty Range

In cases of deprivation of liberty, the penalty depends on the duration, intensity, and accompanying circumstances of the act. It is crucial how severely and for how long the victim’s personal freedom was restricted and under what circumstances the act was committed.

Basic offense: Custodial sentence of up to three years.
This covers any unlawful detention, imprisonment, or other deprivation of liberty of movement of another person, regardless of whether violence was used.

Aggravated offense: Custodial sentence of one to ten years.
This higher penalty applies if the deprivation of liberty lasts longer than one month, inflicts particular physical or psychological torment on the victim, or occurs under circumstances that entail particularly severe disadvantages for the affected person – such as loss of employment, isolation, or massive psychological stress.

The sentencing framework takes into account that deprivation of liberty constitutes a massive infringement on personal self-determination. The gravity of the act increases with its duration, the nature of the impairment, and the intent to maintain control over the victim.

In minor cases, such as brief and inconsequential restriction of liberty, the court may impose a fine or a suspended custodial sentence.
In severe cases, particularly involving prolonged detention, the use of violence, or threats, a multi-year unconditional custodial sentence can be expected.

Monetary Penalty – Day-fine System

• Range: up to 720 daily rates (Number of daily rates = culpability; Amount/day = financial capacity; min. €4.00, max. €5,000.00).
• Practical Formula: 6 months imprisonment ≈ 360 daily rates (Guideline, not a fixed scheme).
• Uncollectibility: Substitute custodial sentence (generally applies: 1 day substitute custodial sentence = 2 daily rates).

Imprisonment and (partially) suspended sentence

§ 37 StGB: For offenses punishable by up to five years imprisonment, the court can replace a short prison sentence of up to one year with a fine. This provision aims to avoid short prison sentences and allows for a fine if neither specific nor general preventive reasons require the execution of a prison sentence.

§ 43 StGB: A prison sentence can be conditionally suspended if it does not exceed two years and the convicted person is certified to have a positive social prognosis. The probationary period is one to three years. If it is completed without revocation, the sentence is considered finally suspended.

§ 43a StGB: The partially suspended sentence allows a combination of unsuspended and suspended parts of the sentence. For prison sentences of more than six months up to two years, a part can be conditionally suspended or replaced by a fine of up to 720 day-fines if this appears appropriate under the circumstances.

§§ 50 to 52 StGB: The court can additionally issue directives and order probation assistance. Typical directives concern compensation for damages, participation in therapy or counseling, contact or residency prohibitions, and measures for social stabilization. The goal is the prevention of further offenses and the promotion of lasting legal rehabilitation.

Jurisdiction of the courts

Subject-matter Jurisdiction

Cases of deprivation of liberty fall under different court jurisdictions depending on the gravity of the offense and the sentencing framework.
For the basic offense, the Regional Court as a single judge decides, as the maximum penalty is up to three years of imprisonment.
For the aggravated offense, i.e., if the deprivation of liberty lasts longer than one month or has particularly severe consequences, the Regional Court also remains competent.
A lay judge or jury court only becomes active if the maximum penalty exceeds five years of imprisonment and it is a particularly serious offense. However, for § 99 of the Criminal Code, this is not foreseen, as the offense, despite an increased maximum penalty, is not considered a jury case.

Local Jurisdiction

Generally, the court of the place of offense is competent, i.e., the one in whose district the deprivation of liberty was committed or maintained.
If the place of offense cannot be clearly determined, jurisdiction is determined by the residence of the accused, the place of arrest, or the seat of the public prosecutor’s office.
The proceedings are conducted in the place that appears expedient and appropriate.

Hierarchy of Courts

An appeal to the Higher Regional Court is permissible against judgments of the Regional Court.
Decisions of the Higher Regional Court can be challenged with an appeal or a plea of nullity before the Supreme Court.

Civil claims in criminal proceedings

In cases of deprivation of liberty, injured parties or their relatives can assert their civil claims directly in the criminal proceedings. These include pain and suffering compensation, loss of earnings, treatment costs, therapy costs, costs for psychological support, and compensation for emotional distress suffered.

The joinder of private parties suspends the statute of limitations for these claims for the duration of the criminal proceedings. Only after its final conclusion does the period continue to run, provided the claim was not fully awarded.

A voluntary reparation of damages, for example through an apology, financial compensation, or support for the victim, can have a mitigating effect on the sentence if it is made timely, honestly, and comprehensibly.
However, if it is determined that the perpetrator deliberately detained, particularly humiliated, or abusively restricted the victim’s freedom of movement, a later reparation generally loses its sentence-mitigating effect.

Select Your Preferred Appointment Now:Free initial consultation

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.

Select Your Preferred Appointment Now:Free initial consultation

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

The accusation of deprivation of liberty is legally serious because it directly affects personal self-determination. In practice, such proceedings often arise from relationship conflicts, domestic disputes, or emotionally charged situations. A deliberate criminal intent is not always present. Often, it involves spontaneous behavior that is only later judged as deprivation of liberty under criminal law.

Whether a punishable restriction of liberty actually exists depends on many circumstances. Decisive factors are the duration and intensity of the detention, the voluntariness of remaining, possible threats or coercive measures, and the subjective perception of the affected person. Even minor differences in the sequence of events, in witness statements, or in technical evidence can determine whether an act is considered punishable.

Therefore, legal representation from the outset is of central importance. It ensures that evidence is secured in a timely manner, statements are correctly classified, and misunderstandings are clarified early. Especially in personal or family conflicts, an objective defense strategy is necessary to distinguish emotional reactions from legally relevant behavior.

Our law firm

• checks whether there is actually an unlawful deprivation of liberty or whether the behavior can be explained by error, self-defense, or justifying circumstances,
• analyzes police reports, expert opinions, and digital evidence for inconsistencies,
• accompanies you through the entire investigation and court proceedings,
• develops a tailored defense strategy that presents your motives comprehensibly,
• and decisively represents your rights before the police, public prosecutor’s office, and court.

An experienced criminal defense protects against one-sided assessments and ensures that your conduct is legally correctly classified. It ensures that the proceedings are conducted fairly, objectively, and with due regard for your rights.

Thus, you receive representation with legal precision, experience, and clear structure, which aims for a just and balanced outcome.

Select Your Preferred Appointment Now:Free initial consultation

FAQ – Frequently Asked Questions

Select Your Preferred Appointment Now:Free initial consultation