Extortion

According to § 144 StGB, extortion occurs when a person uses force or dangerous threats to coerce another person into an action, toleration, or omission that causes financial damage, and in doing so acts intentionally to unlawfully enrich themselves or a third party. The perpetrator does not directly access the item itself, but forces the victim to engage in asset-damaging behavior.

The injustice of extortion lies in the combination of coercion with a targeted attack on assets. The crucial point is that the financial damage is a direct result of the coercion and the perpetrator at least tacitly accepts this enrichment.

objective elements of the offence

The objective element of the offense covers exclusively the externally perceptible events. The only thing that matters is what a neutral observation could determine, i.e., actions, procedures, resources used, and consequences that occurred. Internal processes such as thoughts, motives, or intent are not included and are disregarded.

The objective element of extortion under § 144 StGB requires that the perpetrator influences a person through force or dangerous threats and thereby induces them to perform an action, toleration, or omission that causes financial damage to the coerced person or a third party. Unlike robbery, the perpetrator does not directly access an item themselves, but forces the victim to engage in asset-damaging behavior.

The coercive act consists of the victim becoming active themselves as a result of the force or threat or omitting a specific behavior. The financial damage occurs precisely because the victim yields to the coercion. The crucial point is therefore that the financial disadvantage is brought about indirectly through the behavior of the victim and not through a removal by the perpetrator.

The instrument of the crime must be directed against a person. Force exists when physical coercion is exerted or directly aims to break the victim’s resistance. A dangerous threat exists if the victim is promised a significant disadvantage that is likely to cause serious fear. The force or threat must be functionally linked to the asset-damaging behavior and enable or secure it.

The objective element of the offense is fulfilled as soon as financial damage occurs as a result of the forced behavior. It is not necessary for the perpetrator to obtain an item themselves or to permanently dispose of it. The focus of the injustice lies in the combination of coercion and financial damage, not in an act of removal.

Steps of legal assessment

Perpetrator:

The subject of the crime can be any person who is criminally responsible. Special personal characteristics are not required.

Object of the Offense:

The object of the offense is the assets of the coerced person or a third party, which are damaged by the forced behavior.

Act:

The act consists of coercion through force or dangerous threats to an action, toleration, or omission that causes financial damage.

Result of the Offense:

The result of the crime lies in the occurrence of financial damage as a direct consequence of the forced behavior.

Causality:

The financial damage must be causally related to the force or threat. Without the coercion, the damaging behavior would not have been committed.

Objective Attribution:

The result is objectively attributable if exactly that risk materializes that § 144 StGB is intended to prevent, namely that assets are damaged by force or dangerous threats through the behavior of the victim.

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Distinction from other offences

The element of extortion under § 144 StGB covers cases in which a person is coerced by force or dangerous threats into an action, toleration, or omission that causes financial damage. The focus of the injustice lies in the combination of coercion with an indirect attack on assets. The crucial point is not a removal by one’s own hand, but that the victim themselves commits the asset-damaging behavior because they yield to the coercion.

• § 105 StGB – Coercion: Coercion covers cases in which someone is forced by force or dangerous threats into an action, toleration, or omission without causing financial damage.
  In the case of extortion, the asset reference is a mandatory component of the offense. The forced behavior must objectively lead to financial damage. If this asset component is missing, there is no extortion, but merely coercion.
• § 142 StGB – Robbery: Robbery covers constellations in which the perpetrator takes or extorts a foreign movable item themselves, namely using force against a person or by threatening with present danger to life or limb.
  In the case of extortion, this direct act of removal is missing. The perpetrator forces a behavior of the victim, through which the financial damage is only brought about. The decisive factor is therefore who causes the transfer of assets: in robbery, the perpetrator acts themselves, in extortion the victim acts under duress.

Concurrences:

Genuine Concurrence:

Genuine concurrence exists if further independent offenses are added to the extortion, such as bodily injury, property damage, deprivation of liberty, or dangerous threats. In these cases, the elements of the offense continue to exist side by side, as different legal interests are violated and no displacement occurs.

Spurious Concurrence:

A sham concurrence comes into consideration if another element of the offense completely covers the entire injustice content of the extortion. This is particularly the case if the coercion and the financial damage are absorbed into a more specific offense. In these constellations, § 144 StGB recedes.

Multiple Offenses:

Multiplicity of acts exists if several acts of extortion are committed independently, for example in the case of coercive situations separated in time or in the case of different financial damages. Each act forms its own criminal unit, provided that no natural unit of action exists.

Continued Action:

A single act can be assumed if several acts of coercion and financial damage are in close temporal and factual connection and are supported by a uniform plan of action. The act ends as soon as no further coercion occurs or the perpetrator abandons his intention to commit the act.

Burden of proof and evaluation of evidence

Public Prosecutor’s Office:

The public prosecutor’s office must prove that the accused has committed extortion. The crucial point is the proof that the accused has influenced a person through force or dangerous threats and thereby induced them to perform an action, toleration, or omission that causes financial damage. The crucial point is not an act of removal, but the coercion, through which the victim themselves has committed the asset-damaging behavior.

It must be proven, in particular, that

• an act of coercion was actually committed by force or dangerous threat,
• the force or threat was directed against a person,
• the victim has committed an action, toleration, or omission as a result of the coercion,
• this behavior has objectively led to financial damage to the victim or a third party,
• a causal connection exists between coercion and financial damage,
• the financial damage was a direct result of the coercion.

The public prosecutor’s office must also demonstrate whether the alleged use of force or threat and the asset-damaging behavior are objectively ascertainable, for example through witness statements, communication records, video recordings, medical findings, payment flows, contracts, transfers or other comprehensible circumstances.

Court:

The court examines all evidence in the overall context and assesses whether, according to objective standards, there is coercion by force or dangerous threat that has causally led to financial damage. The focus is on the question of whether the victim acted under duress and whether this duress was functional for the financial disadvantage.

In doing so, the court particularly considers:

• Type, intensity, and course of the use of force or threat,
• the temporal connection between coercion and asset-damaging behavior,
• the specific behavior of the victim and their freedom of choice,
• witness statements on the course of the act and the participation of the accused,
• Communication content, payment receipts, or other objective evidence,
• circumstances that indicate a serious coercive situation,
• whether a reasonable average person would assume coercion-induced behavior.

The court clearly distinguishes between mere pressure situations without coercive quality, purely verbal conflicts, socially customary influences, and cases in which the financial damage is not based on force or dangerous threat.

Accused Person:

The accused person bears no burden of proof. However, she can point out reasonable doubts, especially regarding

• whether force or a dangerous threat was actually used,
• whether the coercion constituted a serious threat situation,
• whether a causal connection existed between coercion and financial damage,
• whether the victim’s behavior was voluntary,
• whether there was only psychological pressure without factual intensity,
• whether the alleged financial damage actually occurred,
• contradictions or gaps in the presentation of the course of events,
• alternative courses of events that could explain the financial disadvantage differently.

It can also demonstrate that actions were misunderstood, situation-dependent, or without coercive character, or that the requirements for extortion are not met.

Typical assessment

In practice, the following evidence is particularly important in the case of § 144 StGB:

• Witness statements on the coercive situation and the victim’s behavior,
• Messages, emails, or other communication records,
• Payment receipts, transfers, or asset shifts,
• Video recordings or other objective documentation,
• temporal sequences that prove the connection between coercion and financial damage.

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Practical example

• Forced payment of money by threat: The perpetrator threatens a person with physical violence if they do not hand over a certain amount of money to them. In order to avoid an escalation, the victim pays the money out of their own action. The perpetrator does not take the item themselves, but forces the victim to engage in asset-damaging behavior. The financial damage arises precisely from the threat and the behavior set in response. The act fulfills the element of extortion under § 144 StGB.
• Forced transfer under threat of violence: The perpetrator blocks a person’s path and demands that they immediately transfer an amount of money via online banking under threat of physical violence. Fearing an attack, the victim carries out the transfer themselves. The crucial point is that the perpetrator does not carry out a removal, but causes the victim to perform an action under duress that causes financial damage. There is simple extortion, as none of the qualifying circumstances of § 145 StGB are given.

These examples show the typical manifestations of simple extortion under § 144 StGB. It is characteristic that the perpetrator forces a behavior through force or dangerous threats that leads to financial damage, without operating with the particularly serious threats or methods of the act of § 145 StGB. The focus of the injustice lies in the coercion with financial consequences, not in the intensity of the threat or in extraordinary consequences of the act.

subjective elements of the offence

The subjective element of extortion under § 144 StGB requires intent with regard to all objective elements of the offense. The perpetrator must know that they are influencing a person through force or dangerous threats and thereby inducing them to perform an action, toleration, or omission that causes financial damage to the victim or a third party. They must recognize that the forced behavior is not voluntary, but a result of the coercion.

The perpetrator must therefore understand that their behavior in the overall picture constitutes a financial damage brought about by coercion. For the intent, it is sufficient that the perpetrator seriously considers the use of force or dangerous threat as well as the asset-damaging behavior of the victim to be possible and accepts it. A further intention is not required. Conditional intent is sufficient.

The intent must also relate to the means of the crime. The perpetrator must at least accept as a possibility that the violence used has a physical effect or that the threat holds out a significant disadvantage and is suitable to induce the victim to engage in the asset-damaging behavior. Likewise, he must recognize or at least consider it possible that there is a functional connection between coercion and asset damage.

In addition, § 144 of the Criminal Code requires an intent to enrich oneself. The perpetrator must at least accept as a possibility that he or a third party obtains an unlawful financial advantage through the conduct of the coerced party, for example, by obtaining money, claims, services, or other assets. This internal objective of unlawful enrichment is constitutive for extortion as a property offense.

There is no subjective element of the offense if the perpetrator seriously assumes to be entitled to the demanded behavior or that the victim acts voluntarily and without coercion. The same applies if the perpetrator acts without intent regarding the violence or dangerous threat, for example, because he does not recognize the coercive effect on the victim or does not at least accept it as a possibility.

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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:

A diversion in the case of extortion pursuant to § 144 of the Criminal Code is generally not excluded, but is only considered in narrowly limited exceptional cases. The offense requires coercion by violence or by dangerous threat and thus regularly exhibits a significant degree of coercion and property injustice. This element of coercion significantly limits the possibility of a diversionary settlement.

In cases where no significant violence was used, the dangerous threat exhibits a low intensity, the asset damage is minor, and the offense has resulted in only insignificant consequences, a diversion can be exceptionally considered. With increasing intensity of the threat, higher potential for coercion, or targeted action, the probability of a diversionary settlement decreases significantly.

Diversion may be considered if

• the overall guilt is minor,
• no significant violence was used,
• the dangerous threat is of low intensity,
• the asset damage is minor and compensated,
• no planned or repeated behavior exists,
• the facts are clear and manageable,
• and the perpetrator is insightful, cooperative, and willing to make amends.

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

Exclusion of Diversion:

Diversion is excluded if

• significant use of violence or an intensive dangerous threat exists,
• the accusation involves a high potential for coercion or endangerment,
• the act was committed deliberately, purposefully, or systematically,
• several independent acts of extortion exist,
• repeated or systematic behavior is present,
• special aggravating circumstances are added,
• or the overall behavior represents a serious impairment of the victim’s freedom of decision.

Only in cases of clearly minimal guilt, minimal coercion, and immediate remorse can it be examined whether an exceptional diversionary approach is permissible. In practice, diversion in the case of extortion is only possible in rare borderline cases and always depends on the specific circumstances of the individual case.

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Sentencing and consequences

The court assesses the penalty according to the extent of the asset damage, according to the nature, duration, and intensity of the violence or dangerous threat, as well as how strongly the victim’s freedom of decision and economic position were impaired. Decisive is whether the perpetrator acted in a targeted, planned, or repeated manner and whether the behavior caused a significant coercive effect as well as a noticeable impairment of assets.

Aggravating Factors Exist in Particular If

• the offense was committed under intensive use of violence or massive dangerous threat,
• a systematic or particularly reckless approach was present,
• significant financial damage has occurred,
• several assets or economically significant positions were affected,
• acted despite recognizable resistance or particular vulnerability of the victim,
• the act was committed in a relationship of proximity, dependency, or superiority,
• or relevant prior convictions exist.

Mitigating Factors Include

• a clean record,
• a full confession and recognizable insight,
• an immediate cessation of the criminal behavior,
• active efforts at restitution or full compensation for damages,
• special stress or overstrain situations for the perpetrator,
• or an excessively long duration of proceedings.

The court can conditionally suspend a prison sentence if it does not exceed two years and the perpetrator has a positive social prognosis.

Penalty Range

For extortion, a prison sentence of six months to five years is provided. The penalty range covers cases in which asset-damaging behavior is forced through violence or dangerous threat, without qualifying circumstances of severe extortion being present.

An explicitly regulated less serious case does not exist in extortion. However, the specific penalty amount can be in the lower range of the penalty framework if no significant violence was used, the threat exhibits only low intensity, the asset damage is minor, and the offense has resulted in only insignificant consequences. These circumstances have a mitigating effect on the penalty, but do not change the statutory penalty framework.

It should also be noted that not every threat is automatically punishable. Extortion exists only if the violence or threat used is immoral, i.e., unfair, inappropriate, or socially unacceptable. Anyone who pursues a legitimate concern and does not exert excessive or inadmissible pressure does not act unlawfully. If such a non-immoral constellation exists, the punishability is already eliminated, so that no punishment occurs.

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 daily rates – at least €4, maximum €5,000 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 extortion pursuant to § 144 of the Criminal Code, in addition to a prison sentence, a monetary penalty is generally possible, especially in cases of lesser guilt or in the lower range of the penalty framework. The day-fine system is therefore practically relevant and can represent a genuine alternative to imprisonment in individual cases.

Imprisonment and (partially) suspended sentence

§ 37 of the Criminal Code: If the statutory penalty threat extends up to five years, the court can, under the statutory conditions, impose a monetary penalty instead of a short prison sentence of no more than one year. This provision is generally applicable to extortion because the penalty threat is within the framework. However, this is not an independent monetary penalty threat of the offense, but a replacement possibility for short prison sentences. This is primarily considered in cases of lesser guilt and an overall mild offense.

§ 43 of the Criminal Code: A conditional suspension of the prison sentence is possible if the imposed sentence does not exceed two years and the perpetrator has a positive social prognosis. This possibility also exists in the case of extortion, whereby it is decisive how intense the violence or threat was and how high the caused asset damage is. A conditional suspension is realistic above all if the offense is in the lower range of the penalty framework, no significant violence was used, and the perpetrator is remorseful.

§ 43a of the Criminal Code: The partially conditional suspension allows a combination of unconditional and conditionally suspended part of the penalty. It is possible for prison sentences over six months and up to two years. In the case of extortion, this form can be particularly significant if the penalty appropriate to the guilt lies between six months and two years and no significantly aggravating circumstances exist. It is regularly excluded in cases of intensive use of violence or massive threat.

§§ 50 to 52 of the Criminal Code: The court can issue instructions and order probation assistance. In the case of extortion, these often concern behavior-steering measures, such as conflict resolution, social stabilization, or requirements for compensation for damages. The goal is to prevent further criminal offenses and to promote a lasting social reintegration.

Jurisdiction of the courts

Subject-matter Jurisdiction

For extortion pursuant to § 144 of the Criminal Code, the Regional Court is in any case competent due to the provided penalty framework of six months to five years imprisonment. A competence of the District Court is excluded, as this is only competent for criminal offenses with a penalty threat of up to one year imprisonment.

In the standard case of extortion, the Regional Court decides through a single judge. This composition corresponds to the statutory basic competence for criminal offenses that are threatened with a prison sentence of more than one year, but not more than five years, and for which no special competence of a lay judge court or jury court is provided.

A lay judge court is not competent in the case of extortion, as § 144 of the Criminal Code neither provides for a penalty threat of over five years nor counts among the offenses expressly assigned to the lay judge court.

A jury court is also not considered, as the prerequisites for its competence, in particular a penalty threat with life imprisonment or with a prison sentence whose lower limit is more than five years, are not met.

Local Jurisdiction

The court at the place of the offense is generally locally competent, i.e., where the violence or dangerous threat was used and the asset-damaging behavior was set or brought about.

If the place of the offense cannot be clearly determined, the jurisdiction is based on

• 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

If a judgment is made by the Regional Court as a single judge, this is not necessarily final. Both the convicted person and the public prosecutor’s office can take a legal remedy against the decision.

Depending on the type of judgment, an appeal can be considered. If certain statutory prerequisites are met, a plea of nullity can additionally be lodged. The decision is then reviewed by a superior court, which checks whether the procedure was conducted correctly and whether the legal assessment is accurate.

Which type of review is possible depends on in which composition the Regional Court decided and which legal questions are challenged.

Civil claims in criminal proceedings

In the case of extortion pursuant to § 144 of the Criminal Code, the injured person can assert their civil law claims directly in the criminal proceedings as a private party. Since the extortion is directed at an asset-damaging behavior forced by violence or dangerous threat, the claims include in particular monetary payments, transferred amounts, surrendered assets, waivers of claims as well as other financial disadvantages that have arisen from the forced behavior.

Depending on the facts, consequential damages can also be demanded to be replaced, for example, if the forced payment or action has resulted in economic disadvantages, liquidity problems, or operational damages.

The private party joinder inhibits the statute of limitations of all asserted claims as long as the criminal proceedings are pending. Only after legally binding conclusion does the limitation period continue to run, insofar as the damage has not been fully awarded.

A voluntary restitution, such as the repayment of obtained amounts, a compensation of the caused damage, or a serious effort to compensate, can have a mitigating effect on the penalty, provided that it occurs timely and completely.

However, if the perpetrator has acted under significant violence or intensive dangerous threat, in a planned or repeated manner, or the offense was associated with a massive coercive situation, a later compensation for damages regularly loses a large part of its mitigating effect. In such constellations, a subsequent compensation can only compensate for the injustice of the extortion to a limited extent.

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Overview of criminal proceedings

Commencement of Investigation

Criminal proceedings require a concrete suspicion, from which a person is considered an accused and can claim all rights of the accused. Since it is an official offense, the police and public prosecutor’s office initiate the proceedings ex officio as soon as a corresponding suspicion exists. A special declaration of the injured party is not required for this.

Police and Public Prosecutor’s Office

The public prosecutor conducts the preliminary investigation and determines the further course of action. The criminal police carry out the necessary investigations, secure evidence, take witness statements, and document the damage. Ultimately, the public prosecutor decides on discontinuation, diversion, or indictment, depending on the degree of culpability, the amount of damage, and the evidence.

Interrogation of the Accused

Before each interrogation, the accused person receives full instruction on their rights, particularly the right to remain silent and the right to legal counsel. If the accused requests legal counsel, the interrogation must be postponed. The formal interrogation of the accused serves to confront them with the accusation and to provide an opportunity for a statement.

Access to files

Access to files can be obtained from the police, public prosecutor, or court. It also includes items of evidence, provided that the purpose of the investigation is not thereby jeopardized. The private claimant’s joinder is governed by the general rules of the Code of Criminal Procedure and allows the injured party to assert claims for damages directly in criminal proceedings.

Main Hearing

The main hearing serves for oral evidence taking, legal assessment, and decision-making on any civil law claims. The court particularly examines the course of events, intent, amount of damage, and the credibility of statements. The proceedings conclude with a conviction, acquittal, or diversionary resolution.

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.

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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.
   You should secure all available documents, messages, photos, videos, and other records as early as possible and keep copies. Digital data must be regularly backed up and protected from subsequent changes. Note down important individuals as potential witnesses and promptly record the sequence of events in a memorandum.
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 reparation strategically.
   Payments, symbolic gestures, apologies, or other compensatory offers should be handled and documented exclusively through the defense. Structured reparation can positively influence diversion and sentencing.

Your Benefits with Legal Assistance

Extortion combines coercion by violence or dangerous threat with asset damage. The legal assessment depends significantly on the specific course of events, on the intensity of the coercion, on the intent to enrich oneself, as well as on the evidence situation. Even slight deviations in the facts can decide whether the offense is fulfilled, whether mere coercion, simple extortion, or severe extortion is considered, or whether the offense is not unlawful due to a lack of immorality.

An early legal support ensures that the facts are correctly classified, evidence is critically assessed, and exculpatory circumstances are processed in a legally usable manner.

Our law firm

• examines whether the prerequisites of an extortion actually exist or a different legal assessment is required,
• analyzes the evidence situation, in particular regarding violence, dangerous threat, causality, and asset damage,
• clarifies whether the applied means were immoral or an exception to the punishability is considered,
• develops a clear defense strategy that classifies the course of events completely and legally precisely.

As a representation specialized in criminal law, we ensure that an accusation of extortion is carefully examined and the proceedings are conducted on a sustainable factual basis.

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FAQ – Frequently Asked Questions

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