Extortionate Kidnapping

Extortionate kidnapping pursuant to § 102 StGB is a particularly serious crime in which a person is deprived of their liberty or otherwise brought under the control of the perpetrator in order to extort a third party by endangering the victim’s life, limb, or freedom. Typical is the threat to do something to the victim if the demanded behavior does not occur, such as the payment of a ransom or a specific decision by an authority or a company. The core of the injustice is not only the massive violation of the personal freedom of the victim, but above all their degradation to a mere means of pressure with which economic, personal, or political goals are to be enforced. Extortionate kidnapping therefore combines a qualified violation of freedom with a serious form of coercion and extortion and is punished accordingly severely.

objective elements of the offence

The objective element of extortionate kidnapping covers all external and perceptible processes that show that a person is deprived of their freedom and used as a means of pressure. It exclusively reflects the visible events, comparable to a camera that only records what actually happens, without inner intentions or motives.

Any situation in which a person is kidnapped, detained, or brought under the control of the perpetrator is an element of the offense. The crucial point is that this condition is clearly recognizable and that the victim can no longer freely decide or protect themselves. Whether the perpetrator created this condition through violence, deception, psychological influence, or exploiting an opportunity is irrelevant for the objective element of the offense. Only the external deprivation of liberty is decisive.

The objective element of the offense is therefore fulfilled as soon as the victim is removed from their usual sphere of protection or brought under the actual control of the perpetrator and this situation is suitable to exert pressure on a third party.

Steps of legal assessment

Perpetrator:

Any person who determines, influences, or causes the transfer or seizure of the victim’s whereabouts.

Object of the Act:

The object of the offense is any person, regardless of age, origin, or social background. The crucial factor is that they are kidnapped or brought into the power of the perpetrator against or without their free will, thereby becoming the means of pressure for the intended extortion.

For criminal liability, it is irrelevant whether the victim initially appears to go along voluntarily. Cooperation obtained through deception or psychological superiority is legally irrelevant if it leads to the victim coming under the control of the perpetrator. As soon as the victim is in the sphere of power of the perpetrator and this condition is intended to serve the extortion, the protective purpose of the law is fulfilled.

If there is subsequently an actual relocation or a continued act of empowerment, a completed offense exists.

Act:

Extortionate kidnapping exists if a person is brought to another place against or without their will, detained there, or brought into the power of the perpetrator in order to put a third party under pressure through this situation.

Typical actions are:

• Taking away from home, workplace, or public space to remove the victim from the control of others.
• Transferring to a place where the victim can be more easily controlled or kept hidden, such as in apartments, vehicles, or remote environments.
• Deception or manipulation, for example by feigning a harmless purpose in order to lure the victim into a controlled environment.

There is no extortionate kidnapping if no intention to extort exists or the behavior is not aimed at forcing a third party through the situation of the victim. Voluntariness of the victim does not exclude the act if it is due to deception, threat, or psychological influence.

The action must lead to an actual kidnapping or act of empowerment. Merely threatening such a condition does not fulfill the element of the offense, but may constitute a qualified threat or extortion.

Result of the Act:

The success of the offense consists in the completed removal of the victim from their previous sphere of protection or in the establishment of an empowerment offense. The crucial factor is that the victim is in a situation that the perpetrator controls and that is objectively suitable to be used as a means of pressure against a third party. Even someone who only takes over the transport, the guarding, or the provision of a place can realize the element of the offense as a joint perpetrator or as a contributor.

Causality:

The perpetrator’s action is causal if, without it, the victim would not have come into the power of the perpetrator or the kidnapping state would not have arisen. Any action that establishes, maintains, or deepens the deprivation of liberty or the empowerment is causal. Even if the victim follows the instructions due to fear or goes along seemingly voluntarily, causality remains if this cooperation is based on deception or pressure.

Objective Attribution:

The success is objectively attributable to the perpetrator if they consciously create a situation in which the victim is removed from the control of others and used as an means of extortion. A lawful transfer requires either a legal basis or the free and informed consent of the victim. Any action that aims to create a coercive situation to enforce external purposes is unlawful and fulfills the objective element of § 102 StGB.

Qualifying Circumstances

• Serious consequences: If the victim suffers serious physical or mental harm as a result of the kidnapping, this constitutes an aggravating circumstance.
• Duration of the kidnapping: A longer period of restriction of liberty may lead to the application of the higher penalty range.
• Multiple commission of the act: Anyone who kidnaps several people or acts repeatedly will be punished more severely.

Distinction from other offences

The element of extortionate kidnapping exists if the perpetrator takes control of a person against or without their will or transfers them to another place in order to put a third party under massive pressure. The perpetrator actively impairs the freedom of the victim and deliberately directs the freedom of decision of the person who is exposed to the pressure. They consciously create a coercive situation, control the situation, and use the victim as a means of extortion in order to bring about the desired success.

• § 99 StGB – Deprivation of liberty: Covers the mere locking up or detention of a person without changing location. The objective content is limited to the abolition of freedom of movement.
  § 102 StGB, on the other hand, requires an empowerment or kidnapping of the victim, which is recognizably suitable to exert pressure on a third party. Both offenses are often in genuine competition, as the deprivation of liberty is regularly part of the kidnapping.
• § 105 StGB – Coercion: The coercion of the third party is covered in § 102, because the exertion of pressure takes place precisely through the empowerment of the victim. A separate criminal liability for coercion is therefore usually not necessary. Only if the perpetrator coerces the third party independently of the kidnapping, § 105 may additionally be considered.
• §§ 144 to 145 StGB – Extortion offenses: § 102 StGB is very close to the extortion offenses. The difference lies in the severity of the means of pressure. In extortionate kidnapping, a person is used as a means of threat. The extortion does not have to be completed. The intention to enforce demands through the kidnapping is sufficient.
• § 269 StGB – Hostage-taking during liberation attempts: If the perpetrator endangers authorities or third parties in order to prevent the liberation of the victim, this falls under § 269 StGB. In such cases, it is about defending against state measures, not about private extortion goals.

Concurrences:

Genuine Concurrence:

Genuine concurrence exists if the extortionate kidnapping is realized together with independent offenses, such as bodily injury, robbery, qualified threat, or abuse. The perpetrator violates several legal interests in their own way, which is why each act must be punished separately.

Spurious Concurrence:

An apparent concurrence exists if the kidnapping is only part of a more serious main act and does not unfold an independent injustice. This is rare, because the extortionate kidnapping already contains considerable injustice through the act of empowerment. Only if the entire content of injustice is absorbed in another offense, § 102 StGB can recede.

Multiple Offenses:

Anyone who takes control of several people or carries out the process several times realizes several independent offenses that must be punished separately.

Continued Action:

If the victim is detained for a longer period of time or in different places, there is a uniform act as long as the intent to extort persists.

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 an extortionate kidnapping, its duration, the purpose, and the connection between the action and the planned or occurred extortion. It proves that the victim was removed from their sphere of protection or detained there against or without their will and thereby was subject to the control of the perpetrator in order to be used as a means of pressure against a third party.

Court:

The court examines and evaluates all evidence in the overall context. It does not use any unsuitable or illegally obtained evidence. The crucial question is whether the victim was actually empowered or kidnapped and whether this situation was objectively suitable to exert pressure on the third party. The court determines whether a real kidnapping state existed that carries the intent to extort.

Accused Person:

The accused person has no burden of proof. However, they can point out doubts about the intention to extort, about the actual empowerment, or about the duration of the kidnapping state. Likewise, they can point to contradictions, gaps in evidence, or unclear expert opinions.

Typical documents are medical findings on injuries or stress reactions, witness statements on the course of the transfer, video or surveillance material, digital location data such as GPS or mobile radio protocols, as well as traces on vehicles, clothing, or doors. In individual cases, pedagogical or psychological expert opinions can also be significant, for example on the question of whether the minor person could grasp the character of the situation.

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Practical example

• Kidnapping from the work environment: A person is intercepted by an acquaintance after work who pretends to bring them home on behalf of a colleague. Instead, he drives her to a remote location and prevents any contact. He then demands money from a relative. Even without violence, there is an extortionate kidnapping because the victim is removed from the control of their environment and deliberately used as a means of pressure.
• Deception and manipulation: A perpetrator lures the victim with a seemingly harmless pretext, such as an alleged urgent meeting or a request for help. The victim follows voluntarily, but enters an environment that the perpetrator completely controls. From there, he puts a third party under pressure. The deception is sufficient if it serves to create a situation in which the victim can be used as a means of extortion. The decisive factor is the intention to force the third party through the situation of the victim, not whether the demand has already been fulfilled or the threat has been made.

These examples show that already the transfer or empowerment of a person from their lawful sphere of protection fulfills the extortionate kidnapping. The decisive factor is the targeted abolition of personal freedom combined with the intention to force a third party to an action, toleration, or omission.

subjective elements of the offence

The perpetrator acts intentionally. They know or at least accept that they are bringing a person into their power against or without their will and thus creating a situation that they want to use for an extortion of a third party.

Essential is the intention to put another person under pressure. The perpetrator wants to achieve that this third party does something, omits something, or tolerates something because the victim is in the power of the perpetrator. It is sufficient that the perpetrator seriously strives for this effect. Whether the third party actually gives in later is irrelevant for criminal liability.

There is no intent if the perpetrator believes that the victim is going along freely and informed or if they do not want to exert pressure on a third party. Anyone who mistakenly assumes that the situation serves only a harmless purpose does not fulfill the subjective element of the offense.

The crucial factor is that the perpetrator consciously creates and controls the situation of the victim in order to derive an advantage from it. Anyone who recognizes that the victim is dependent on them or intimidated and deliberately uses this situation to move a third party to do something acts intentionally and thus fulfills the subjective element of § 102 StGB.

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Culpability and mistakes

• Prohibition error: A prohibition error only excuses if it was unavoidable. Anyone who consciously empowers, detains, or transfers a person to another place in order to exert pressure on a third party cannot invoke that they did not know that this behavior is prohibited. Everyone must inform themselves about the legal limits of their actions.
• Principle of culpability: Only those who act culpably are punishable. Extortionate kidnapping requires intent regarding the seizure and purpose to compel a third party to act. Anyone who mistakenly assumes that the victim accompanies them voluntarily and with informed consent or that no pressure situation should arise, does not act culpably, but at most negligently, which Section 102 of the Criminal Code does not cover.
• Lack of Criminal Responsibility: No one is held culpable if, at the time of the offense, they were unable to comprehend the wrongfulness of their actions or to act accordingly due to a severe mental disorder or a pathological impairment of their capacity for control. If doubts exist, the court obtains a psychiatric expert opinion.
• Excusable Duress: This applies when the act is committed under extreme duress, for example, to avert an imminent 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 someone, for example, because they assume they must avert a danger or protect someone, acts without intent if the error is serious and comprehensible. If a breach of duty of care nevertheless remains, the conduct may have a mitigating effect on the punishment, but not a justifying one.

Extinction of punishment and diversion

Voluntary Release According to Section 102 Paragraph 4 of the Criminal Code

The perpetrator can significantly reduce the sentence if they voluntarily and without external pressure release the victim and the victim returns to their life without serious harm. The kidnapping or seizure is then considered concluded as soon as the victim is safe again and no longer under the perpetrator’s control.

It is important that the perpetrator acts on their own initiative, renounces the performance sought through the kidnapping, and clearly indicates that they do not wish to further exploit the situation. Those who voluntarily cease their actions demonstrate insight and can therefore receive a significantly milder sentence.

Subsequent Reparation:

If, after the act, the perpetrator seeks apology, help, or compensation, the court may consider this conduct as a mitigating factor. This includes a sincere apology, support for the victim, or compensation for material and emotional damages. Those who take responsibility and actively make amends demonstrate that they have understood the wrongfulness of their actions.

Diversion:

Diversion is only possible in rare exceptional cases for extortionate kidnapping. The offense involves a serious deprivation of liberty, which regularly creates a significant pressure situation for the victim and the third party. Minor culpability exists only if the facts are clear, manageable, and without lasting burden on the victim.

If there are no threats, no violence, and the victim is released quickly, the court may consider diversion in exceptional cases. In such instances, monetary payments, community service, or victim-offender mediation may be ordered. Diversion results in no conviction and no entry in the criminal record.

Exclusion of Diversion:

Diversion is forfeited if the perpetrator uses violence, seriously threatens, severely burdens the victim, or if the seizure lasts longer. Furthermore, if the perpetrator attempts to extort high financial demands or significant advantages by exploiting the victim’s situation, a diversionary resolution is not an option. Only in cases of a misunderstanding, minor culpability, and demonstrable insight can the court consider an exception.

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Sentencing and consequences

The court determines the sentence based on the gravity of the offense, the duration of the seizure, the intensity of the threat situation, and the purpose of the extortion. It is crucial whether the perpetrator deliberately placed the victim in a situation where they were used as leverage against a third party. The extent to which the perpetrator acts systematically and the means they employ also influence the severity of the sentence.

Aggravating Factors Exist in Particular If

• the victim is detained for a longer period,
• the perpetrator acts systematically and makes high demands,
• the victim is subjected to physical or mental stress,
• Violence, dangerous threats or trickery are used,
• or the perpetrator has already been previously convicted of a similar offense.

Mitigating Factors Include

• if the perpetrator is of good character,
• if they make a confession and show insight,
• if they voluntarily release the victim and renounce the demanded performance,
• if they make efforts to provide restitution,
• if there is an extraordinary psychological burden,
• or if the proceedings take an excessively long time.

The court may conditionally suspend a prison sentence if it does not exceed two years and the perpetrator is considered socially stable. For longer sentences, a partially suspended sentence may be considered. Additionally, the court may issue directives, such as therapy or restitution.

Penalty Range

In cases of extortionate kidnapping, the basic sentencing range is ten to twenty years imprisonment. This applies whenever a person is seized or abducted against or without their will to compel another person to an act, forbearance, or omission. It is crucial that the victim is used as leverage.

The same sentencing range also applies if the perpetrator kidnaps or seizes a particularly vulnerable person, such as a minor, mentally impaired, or defenseless victim. Likewise, the same penalty applies if the perpetrator exploits an existing kidnapping or seizure to coerce a third party. The particular vulnerability or the deliberate exploitation of a coercive situation significantly increases the wrongfulness.

If the offense results in the death of the victim, the sentencing range increases significantly. In this particularly severe case, the court can impose up to life imprisonment. The decisive factor is whether the death is related to the resulting pressure or dangerous situation.

However, if the perpetrator voluntarily, without external pressure, and without serious harm allows the victim to return and completely renounces the desired performance, the sentence is significantly reduced to six months to five years. This provision aims to promote the rapid and unharmed release of the victim.

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.

Imprisonment and (partially) suspended sentence

Section 37 of the Criminal Code: If the statutory penalty extends up to five years, the court may impose a fine instead of a short prison sentence of no more than one year. This option also exists in milder cases of extortionate kidnapping, for example, if the perpetrator voluntarily releases the victim and no serious consequences have occurred. However, a fine is only permissible if no special or general preventive reasons argue against it.

Section 43 of the Criminal Code: A prison sentence can be conditionally suspended if it does not exceed two years and the convicted person is certified with a positive social prognosis. The probation period is one to three years. If completed without revocation, the sentence is considered finally suspended.

Section 43a of the Criminal Code: Partially suspended sentences allow for the combination of an unconditional and a conditional part of the sentence. For prison sentences of more than six months up to two years, a portion of the sentence can be conditionally suspended or replaced by a fine of up to 720 daily rates, if this is appropriate given the circumstances of the case. This solution is frequently applied when a certain degree of wrongfulness must be sanctioned, but full imprisonment does not appear necessary.

Sections 50 to 52 of the Criminal Code: The court may additionally issue directives and order probation assistance. Typical directives concern restitution, participation in therapy or counseling, contact or residency bans, and measures for social stabilization. The goal is the prevention of further offenses and the promotion of lasting legal rehabilitation. The court may additionally issue directives and order probation assistance. Typical directives concern restitution, participation in therapy or counseling, contact bans, residency restrictions, or other measures that serve social stabilization. The goal is to prevent further offenses and to support lasting legal rehabilitation.

Jurisdiction of the courts

Subject-matter Jurisdiction

In cases of extortionate kidnapping, the Regional Court, acting as a lay judge court, regularly decides, because the statutory sentencing range provides for ten to twenty years imprisonment, thus classifying it among serious felonies. Single-judge jurisdiction is not an option because the threatened penalty significantly exceeds five years.

Due to the high penalty, a jury court is not used, as the offense, despite its severity, does not necessarily entail life imprisonment as the sole penalty.

Local Jurisdiction

The court of the place of offense has jurisdiction. The decisive factor is where the seizure began, where the victim was detained, or where the focus of the extortionate pressure situation lay.

If the place of offense cannot be clearly determined, jurisdiction is based on the residence of the accused, the place of arrest, or the seat of the competent public prosecutor’s office. Proceedings are conducted at the location where the expedient and proper execution is best ensured.

Hierarchy of Courts

Appeals against judgments of the Regional Court are permissible to the Higher Regional Court.
Decisions of the Higher Regional Court can be challenged with an appeal on points of law or an appeal before the Supreme Court.

Civil claims in criminal proceedings

In cases of extortionate kidnapping, the victim themselves or close relatives can assert civil claims as private parties in criminal proceedings. These include pain and suffering compensation, therapy and treatment costs, loss of earnings, care costs, costs for psychological support, as well as compensation for emotional distress and other consequential damages resulting from the seizure or detention.

The private party connection inhibits the statute of limitations of all asserted claims as long as the criminal proceedings are ongoing. 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 an apology, financial compensation or active support of the victim, can have a mitigating effect if it is done in a timely, credible and complete manner.

However, if the perpetrator deliberately used the victim as leverage, caused significant psychological harm, or exploited the situation particularly recklessly, subsequent reparation generally loses its mitigating effect. In such cases, it can no longer outweigh the committed wrong.

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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.

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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.
   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 concerning the abduction of a minor are among the most sensitive areas of Austrian criminal law. The offense concerns not only the child’s freedom but also parental custody rights and the protection of the sexual integrity of minors. Many cases are legally complex because they arise from family conflicts, relationships of trust, or misunderstandings in the social environment. It is often unclear whether a criminal act or misguided care is actually present.

Whether an abduction in the criminal sense exists depends on whether the child was taken or detained against or without the will of the legal guardians and what intention the perpetrator pursued. It is crucial whether the child was removed from parental protection and thereby exposed to dangers of exploitation. Even small differences in statements, timelines, or communication records can significantly alter the legal assessment.

Therefore, legal representation from the outset is particularly important. It ensures that evidence is correctly gathered, witness statements are examined, and intentions are objectively presented. Only in this way can it be clarified whether it is a criminal act or a misunderstanding within family or social relationships.

Our law firm

• examines whether a criminal abduction actually exists or whether the act can be explained by error, consent, or justifying circumstances,
• analyzes witness statements, communication histories, and digital evidence for contradictions and plausibility,
• accompanies you throughout the entire investigation and court proceedings,
• develops a defense strategy that clearly and comprehensibly presents your intent,
• and consistently represents your rights before the police, public prosecutor’s office, and court.

A structured and factually sound criminal defense ensures that your conduct is legally correctly classified and that the proceedings are fair, objective, and without prejudgment. This provides you with clear and balanced representation aimed at a just and comprehensible solution.

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FAQ – Frequently Asked Questions

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