Handing over to a Foreign Power

The handing over to a foreign power pursuant to Section 103 of the Criminal Code occurs when someone knowingly delivers a person protected in Austria to a foreign state authority or establishes its actual power of disposal. The action violates state sovereignty and regularly endangers central Austrian interests, because the person concerned is handed over to a foreign authority outside the permissible legal channels.

objective elements of the offence

The objective element of Section 103 of the Criminal Code Handing over to a foreign power covers all external and outwardly perceptible processes that show that a person is being handed over to a foreign state authority or brought into its sphere of control. It exclusively depicts the visible events, comparable to a recording that only documents what actually happens, without taking into account inner motives.

Any situation in which a perpetrator hands over a person without free and informed consent to a foreign power or brings about this transfer by force, dangerous threat or trickery is a constituent element of the offense. The decisive factor is that the handover or empowerment process takes place in an objectively recognizable manner and that the person concerned factually loses their freedom of choice because they are at the mercy of the foreign authority.

Steps of legal assessment

Perpetrator:

The subject of the act is any person who actively contributes to another person being handed over to a foreign power.

Object of the Act:

The object of the act is any person who is handed over to a foreign power without their consent or as a result of force, dangerous threat or trickery.

Act:

An extortionate abduction exists if a person is handed over against or without their will to a The act consists of any action by which a person comes under the actual control of a foreign power. This includes in particular:

• Handing over to a foreign authority, for example by physical handover or bringing to a handover location.
• Bringing about the transfer by the perpetrator organizationally creating a situation that enables the foreign power to exercise control.
• Force, dangerous threat or trickery to prepare or carry out the handover.
• Exploiting a defenselessness, for example in the case of underage or incapacitated persons.

A merely announced or threatened handover event is not a constituent element of the offense. There must be an actual empowerment or handover process.

Result of the Act:

The result of the act consists of the completed transfer of the victim into the sphere of power of the foreign authority. The decisive factor is that the foreign power obtains factual access. It is sufficient if the perpetrator creates a situation in which the foreign power can exercise control directly.

Even acts of assistance such as transport, guarding or provision of a handover location fulfill the objective element of the offense in the form of joint perpetration or contribution to the offense.

Causality:

Causal is any action without which the victim would not have come into the sphere of power of the foreign authority. This includes all behaviors that

• enable the handover process,
• establish the state of empowerment,
• support or strengthen the handover.

Even if the victim apparently goes along voluntarily out of fear or deception, causality remains if this cooperation is based on manipulative or unlawful means.

Objective Attribution:

The result is objectively attributable to the perpetrator if he knowingly creates a situation that enables the transfer to a foreign power and thus deprives Austria of its claim to protection. A lawful transfer would only be permissible with effective consent or on the basis of a legal procedure. If these requirements are not met, any behavior is objectively unlawful and fulfills Section 103 of the Criminal Code.

Qualifying Circumstances

Handing over to a foreign power does not contain any classic qualifications such as duration, number of victims or repeated commission of the act. The distinction arises from paragraph 1 and paragraph 2, which describe two different degrees of severity of the act.

Aggravating Normal Case According to Paragraph 1

The more serious case exists if

• the victim is handed over without effective consent,
• the handover is brought about by force, dangerous threat or trickery,
• or the victim is underage, mentally weak, mentally ill or incapacitated due to their condition.

This paragraph describes the standard case, because here the state’s claim to protection is most clearly impaired.

Milder Case According to Paragraph 2

A less serious case exists if

• the victim was not exposed to any significant danger as a result of the handover.

The assessment of whether there is a significant danger depends on the specific situation, in particular on the political situation, the possible treatment methods of the foreign authority or the consequences that can realistically be expected for the victim.

Distinction from other offences

The offense of handing over to a foreign power exists if the perpetrator hands over a person without effective consent to a foreign state authority and thereby removes them from the Austrian protection area. The injustice consists of the interference with personal freedom and at the same time the interference with the state’s claim to protection, because control is deliberately transferred to a foreign power.

• Section 99 of the Criminal Code – Deprivation of liberty: Covers the mere detention or imprisonment without a change of location. The objective content is limited to the restriction of freedom of movement. If there is no handover to a foreign state authority, it remains with Section 99 of the Criminal Code.
• Section 102 of the Criminal Code – Extortionate abduction: Requires an empowerment or abduction that is aimed at exerting pressure on a third party. In the case of Section 103 of the Criminal Code, the focus is not on the intention to extort, but on the actual transfer to a foreign power. Both offenses can coincide if an empowerment leads to a handover.
• Section 105 of the Criminal Code – Coercion: A supplementary penalty for coercion only comes into consideration if the perpetrator forces a person to behave in a way that goes beyond the handover.
• Section 269 of the Criminal Code – Hostage-taking during liberation attempts: Covers endangering actions against authorities or third parties in order to prevent a liberation. Section 103 of the Criminal Code, on the other hand, concerns the active handover to a foreign power. The two offenses do not overlap. Section 269 is only added if additional endangering actions are taken in the course of the handover.

Concurrences:

Genuine Concurrence:

Exists if further independent offenses are added to the handover, such as deprivation of liberty, dangerous threat or bodily injury. Each legal interest is violated separately.

Spurious Concurrence:

Only occurs if a special offense completely covers the entire injustice. This is rare, as Section 103 of the Criminal Code concerns an independent, serious protected asset.

Multiple Offenses:

Several handed over persons or several processes lead to several independent offenses.

Continued Action:

A longer lasting detention or transfer remains a uniform act as long as the intention to hand over persists. The act only ends with the actual possibility of access by the foreign power.

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 a handover to a foreign power, its preparation or execution, as well as for the circumstances under which the victim was brought under the control of a foreign state authority. It proves that the person concerned was removed from their protection area or brought into a situation in which a foreign power gained factual power of disposal without effective consent, by force, by dangerous threat or by trickery. It must also be proven that there was a real handover or handover mechanism that actually enabled the handover.

Court:

The court examines and evaluates all evidence in the overall context. It does not use any unsuitable or illegally obtained evidence. The decisive factor is whether the victim was actually subjected to foreign state control and whether the action was objectively suitable to put the foreign power in a position to exercise actual access possibilities. The court determines whether there was a handover event that carries the offense and undermines the protective function of the state.

Accused Person:

The accused person has no burden of proof. However, they can point out doubts about the actual handover situation, about the alleged act of empowerment, about the effectiveness or voluntariness of an alleged consent and about the involvement of a foreign state authority. They can also point to contradictions, gaps in evidence or unclear expert opinions.

Typical evidence includes diplomatic or police communication traces, video or surveillance material on the handover process, digital location data such as GPS or mobile phone logs, vehicle movement data, travel or border crossing documentation, as well as traces at locations or objects that indicate a controlled transfer. In special cases, psychological or pedagogical expert opinions can also be relevant, especially if the victim was underage, mentally weak or incapacitated and it is to be assessed whether effective consent was excluded.

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Practical example

• Deception and covert handover: A perpetrator lures the victim with a seemingly harmless pretext, such as an alleged administrative clarification or a request for support. The victim follows voluntarily, but enters an environment that the perpetrator completely controls. There, they are handed over to a foreign state authority or taken to a place where this authority has factual access. The deception is sufficient if it serves to create a situation in which the foreign power takes control. The decisive factor is the actual transfer of the power of disposal, not whether the victim has previously resisted.
• Transfer exploiting defenselessness: An underage, mentally weak or incapacitated person is brought to a foreign authority by a person of trust, allegedly to receive help. The victim does not recognize the implications and cannot prevent the process. Since the person is handed over to a foreign state power without effective consent, the offense is clearly fulfilled.

These examples show that already the transferring or handing over a person to a foreign state authority fulfills the handover within the meaning of Section 103 of the Criminal Code. The decisive factor is the targeted transfer of actual control, regardless of whether force is used or the process takes place through deception.

subjective elements of the offence

The perpetrator acts intentionally. They know or at least accept that they are handing over a person without effective consent to a foreign state authority or bringing them into a situation in which this authority obtains actual access. They recognize that the victim is thereby removed from their previous protection area and subjected to the control of a foreign power.

The essential point is the intention to consciously transfer control to a foreign state authority. The perpetrator wants to achieve that the foreign power obtains the power of disposal over the victim, and they seriously strive for this effect. Whether the foreign authority actually takes measures later or continues to hold the victim is irrelevant for the criminal liability.

There is no intent if the perpetrator believes that the victim is participating in the handover freely and informed or if they mistakenly assume that no foreign authority is involved. Anyone who assumes that their behavior merely serves a harmless organizational purpose does not fulfill the subjective element of the offense.

The decisive factor is that the perpetrator consciously creates and controls the victim’s situation in order to hand them over to a foreign power. Anyone who recognizes that the victim is dependent, defenseless or intimidated and deliberately uses this situation to enable the foreign state authority to access them acts intentionally and thus fulfills the subjective element of Section 103 of the Criminal Code.

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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 is only possible in very rare exceptional cases in the case of Section 103 of the Criminal Code.
The reason for this is that the handing over to a foreign power constitutes a serious violation of freedom and an interference with the state’s protective function.

A diversionary settlement can only be examined if

• the guilt of the perpetrator is minor,
• the victim was not exposed to any serious danger,
• no violence and no threat were involved,
• the victim was quickly protected again,
• and the facts are generally manageable and clear.

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

Exclusion of Diversion:

Diversion is excluded if

• the victim was clearly endangered,
• the perpetrator used violence or seriously threatened,
• the transfer to the foreign power was almost completed or had already taken place,
• or if the behavior as a whole constitutes a serious violation of personal or state interests.

Only in the case of minor guilt, a clear misunderstanding, or if the perpetrator is immediately remorseful, can the court even examine whether an exceptional case exists.

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Sentencing and consequences

The court assesses the penalty according to the severity of the handover event, the nature and intensity of the impact on the victim, the involvement of a foreign state authority and the question of how far the transfer had actually progressed. The decisive factor is whether the perpetrator knowingly brought the victim under the control of a foreign state power or prepared this in a targeted manner. The question of how deliberately the perpetrator proceeds and what means they use also influences the amount of the penalty.

Aggravating Factors Exist in Particular If

• the victim is kept under control for a longer period of time,
• the perpetrator proceeds deliberately and organized,
• the handover to the foreign power was already well advanced or completed,
• 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 confess and show remorse,
• if he voluntarily releases the victim and recognizably aborts the transfer,
• if he makes an effort to make amends,
• if there is an extraordinary psychological burden,
• or if the proceedings take an excessively long time.

The court can conditionally suspend a prison sentence if it does not exceed two years and the offender is considered socially stable. For longer sentences, a partially conditional suspension may be considered. In addition, the court may issue instructions, such as therapy, compensation for damages, or an obligation to take stabilizing measures, provided they appear suitable to prevent further offenses.

Penalty Range

In the case of surrender to a foreign power, the penalty range in the basic case is between ten and twenty years’ imprisonment. This penalty range always applies if the perpetrator brings a person to a foreign state authority without effective consent, by force, dangerous threat, or deception, or hands over a person who is a minor, mentally impaired, or incapable of resistance to a foreign power.
The crucial point is that the victim is deliberately removed from Austrian protection and exposed to foreign state control.

A milder penalty range applies if the victim was not exposed to any significant danger as a result of the act. In this case, the penalty is between five and ten years’ imprisonment. This reduced range only applies if the entire situation remains manageable and no serious danger arises for the victim.

Since § 103 StGB contains no qualified case of success, there is no further increasing penalty, even if additional burdens or dangers arise in connection with the act. However, the act remains a serious crime due to its interference with personal freedom and state sovereignty.

A statutory mitigation of penalty through voluntary release is not provided for in § 103 StGB. The court can only consider a voluntary termination within the scope of sentencing, not in the penalty range itself.

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

§ 37 StGB: If the statutory penalty is up to five years, the court may impose a short prison sentence of no more than one year instead of a fine.
This possibility does not exist here, however, because the mildest penalty range is over five years. A fine is therefore excluded, even if the case were to be classified in the lower range of the injustice.

§ 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 probation period is one to three years. If it is completed without revocation, the penalty is considered to be definitively suspended. This possibility can also be considered here, but only in cases of lesser guilt and correspondingly low penalties.

§ 43a StGB: The partially conditional suspension allows the combination of an unconditional and a conditional part of the penalty. For prison sentences of more than six months up to two years, part of the sentence can be conditionally suspended or replaced by a fine of up to 720 daily rates if this corresponds to the circumstances of the case. This solution is often applied when a certain degree of injustice must be sanctioned, but at the same time full imprisonment does not appear necessary.

§§ 50 to 52 StGB: The court may additionally issue instructions and order probation assistance.
Typical instructions concern compensation for damages, participation in therapy or counseling, contact or residence bans, as well as other measures that serve social stabilization.
The goal is to prevent further criminal offenses and to support lasting legal probation.

Jurisdiction of the courts

Subject-matter Jurisdiction

In the case of surrender to a foreign power, the Regional Court regularly decides as a jury court, since the statutory penalty range provides for ten to twenty years’ imprisonment and thus a serious crime is given.
A single judge jurisdiction is not considered because the penalty is significantly over five years.

A jury court is not used. Although the act is serious, the law does not provide for a mandatory life imprisonment, which is why jurisdiction remains with the jury court.

Local Jurisdiction

The court of the place of the offense has jurisdiction. Of particular importance is,

• where the takeover or removal of the victim began,
• where the handover or transfer was prepared or carried out,
• or where the focus of the transfer event was.

If the place of the 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.
The proceedings are conducted where a purposeful and orderly execution is best guaranteed.

Hierarchy of Courts

An appeal to the Higher Regional Court is permitted against judgments of the Regional Court.
Decisions of the Higher Regional Court can then be challenged with a plea of nullity or further appeal to the Supreme Court.

Civil claims in criminal proceedings

In the case of surrender to a foreign power, the victim himself or close relatives can assert civil claims as private parties in the 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 caused by the removal from the protection area, the transfer or the associated burden.

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 has deliberately exposed the victim to the control of a foreign power, caused significant psychological damage or exploited the situation particularly ruthlessly, a later compensation usually loses its mitigating effect. In such cases, it can no longer outweigh the injustice committed.

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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 for surrender to a foreign power are among the most demanding areas of criminal law. The act not only affects the personal freedom of the victim, but also touches on foreign policy interests, state protection obligations and often complex international contexts. It is often unclear what role the foreign state actually played, whether there was effective consent or whether the accused correctly assessed the scope of his actions.

Whether a punishable transfer exists depends on whether the person concerned was brought to a foreign state authority without effective consent and whether the perpetrator consciously enabled this control. Even small deviations in the processes, communication records or movement data can significantly change the legal assessment.

Legal representation from the beginning is therefore essential. It ensures that evidence is correctly secured, processes are presented in a comprehensible manner and misunderstandings are excluded. This is the only way to clarify whether it is actually a punishable transfer or a behavior that has arisen from ignorance, trust structures or false assumptions.

Our law firm

• examines whether a punishable transfer exists or whether consent, error or lack of involvement of the foreign authority preclude it,
• analyzes witness statements, digital data and international references for contradictions and plausibility,
• accompanies you through the entire investigation and court proceedings,
• develops a defense strategy that precisely and credibly presents your intention to act,
• and consistently protects your rights against the police, public prosecutor’s office and court.

A structured, objective and professionally sound defense ensures that the proceedings are conducted fairly, balanced and legally correct. This is how you receive a clear representation that aims at a just and comprehensible solution.

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FAQ – Frequently Asked Questions

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