Robbery by theft

Robbery by theft pursuant to § 131 of the Criminal Code exists if a person is caught in the act after a theft and in this situation uses violence against a person or threatens with an immediate danger to life or limb in order to retain the already removed item for themselves or a third party. The offense requires a completed or at least attempted theft and covers the behavior in the security stage after the removal. The violence or threat does not serve to obtain, but exclusively to retain the item or to enable escape. The decisive factor is that the escalation only occurs after the discovery of the act. Even a short-term actual control over the item is sufficient. The increased degree of unlawfulness lies in the subsequent use of force to secure the financial advantage.

Robbery by theft pursuant to § 131 StGB is a theft in which the perpetrator after discovery of the act uses violence or threatens with an immediate danger to life or limb in order to keep the stolen item.

Robbery by theft pursuant to § 131 of the Criminal Code (StGB): Prerequisites, distinction from robbery, penalties, and diversion explained in an understandable manner.
Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys
„Robbery by theft only exists if the violence is used only after the discovery of the removal and serves exclusively to secure the already obtained item.“

objective elements of the offence

The objective element of § 131 of the Criminal Code requires a theft according to § 127 of the Criminal Code. It, therefore, requires the removal of another person’s movable property. Removal means that the perpetrator cancels the actual control of the entitled party and establishes new custody themselves or through a third party, i.e., takes the item and deprives the previous owner of control over it.

In addition, robbery by theft requires a special escalation after the removal. The perpetrator is caught in the act of theft and in this situation uses violence against a person or threatens with an immediate danger to life or limb pursuant to § 89 StGB. Decisive is therefore not only the interference with the foreign power of disposal, but the subsequent security behavior with which the perpetrator secures the already obtained custody.

Also in the case of robbery by theft, the short-term acquisition of actual control is sufficient if the entitled party loses control as a result. Permanent possession or later use is not required. The violence or threat must not serve the removal, but the preservation of the item.

Robbery by theft protects foreign property from thefts that are secured by violence or life-threatening threats after discovery of the act, and is linked as a qualification to the basic offense of theft.

Qualifying circumstances

A robbery by theft pursuant to § 131 StGB exists if the perpetrator

A particularly qualified form of success exists if the use of force results in bodily injury with serious permanent consequences pursuant to § 85 StGB or the death of a person. In these cases, the penalty is significantly increased.

Steps of legal assessment

Perpetrator:

The perpetrator can be any person responsible under criminal law who takes a foreign item and uses violence or threatens with imminent danger to life or health after discovery of the act. Special personal characteristics are not required.

Object of the Offense:

The object of the offense is any movable physical object belonging to someone else with asset value. An object belongs to someone else if it does not belong exclusively to the perpetrator. Movable is any object that can actually be taken away.

Act:

The act consists of two successive elements:

  1. the removal within the meaning of § 127 StGB and
  2. the use of violence or threat with imminent danger to life or limb after the perpetrator was caught in the act, to secure the loot.

The violence is directed against a person and must not be merely minor or purely factual.

Result of the Offense:

The success of the act lies in the fact that the entitled party loses actual control over the item and the perpetrator gains and secures new custody. Even a short-term taking of the item is sufficient. In the qualified form of success, the serious permanent consequence or death occurs in addition.

Causality:

The loss of control and, if applicable, the serious success must be causally attributable to the behavior of the perpetrator. Without the removal and the subsequent security behavior, the success would not have occurred.

Objective Attribution:

The result is objectively attributable if exactly what § 131 of the Criminal Code is intended to prevent is realized, namely that a perpetrator, after discovering a theft, uses violence or threatens with danger to life or health to secure the loot. In the case of the qualification of the result, it is necessary that the risk created by the use of force is realized in the serious long-term consequences or in death.

Rechtsanwalt Peter Harlander Peter Harlander
Harlander & Partner Rechtsanwälte
„The temporal sequence is decisive. First, the removal must be completed or at least started, only then may violence or a life-threatening threat be used to secure the loot. “
Select Your Preferred Appointment Now:Free initial consultation

Distinction from other offences

The offense of robbery by theft pursuant to § 131 of the Criminal Code covers cases in which there is initially a theft under § 127 of the Criminal Code and the perpetrator uses violence against a person or threatens with an immediate danger to life or limb after discovering the act in order to retain the already removed item for themselves or a third party. Here, too, another person’s movable property is intentionally taken away, so that the entitled party loses actual control over the item and the perpetrator establishes new custody. However, the focus is no longer solely on the deprivation of assets, but on the subsequent use of force to secure the loot. The increased injustice arises from the additional attack on personal safety, not from the type of removal itself.

Concurrences:

Genuine Concurrence:

Genuine concurrence exists if further independent offenses are added to the robbery by theft, such as damage to property, trespassing or further bodily injury. The robbery by theft retains its independent degree of unlawfulness and is not superseded. If several different legal interests are violated, the offenses exist side by side.

Spurious Concurrence:

A superseding due to speciality comes into consideration if another offense includes the entire degree of unlawfulness of the robbery by theft. This is particularly the case if the violence is already a means of removal and does not merely serve to secure the loot. In such constellations, the robbery by theft is superseded and the more serious property offense with a reference to violence is to be applied.

Multiple Offenses:

Multiple acts exist if several robberies by theft are committed independently, for example in the case of temporally separated removals, in the case of different objects of the act or in the case of independent security actions. Each removal with subsequent use of force forms its own act, provided that there is no natural unity of action.

Continued Action:

A uniform act can be assumed if several removals with subsequent securing of loot are closely related in time and subject matter and are supported by a uniform intent. This is the case, for example, if several immediately successive removals are part of the same plan. The act ends as soon as no further removals occur or the perpetrator abandons his intent.

Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys
„The increased degree of unlawfulness of the robbery by theft does not arise from the property damage, but from the subsequent attack on personal safety to secure the loot.“

Burden of proof and evaluation of evidence

Public Prosecutor’s Office:

The public prosecutor’s office must prove that the accused committed a theft within the meaning of § 127 StGB and additionally acted commercially or committed the theft within the framework of a criminal organization. Decisive is the proof that the entitled party has lost actual control over the item and the accused himself or through a third party has established new custody. It is not only about the objective deprivation of the item, but also about the existence of the qualifying requirements of § 130 StGB.

It must be proven, in particular, that

The public prosecutor’s office must also present whether the alleged removal and the qualifying circumstance are objectively ascertainable, for example through witness statements, video recordings, cash register data, inventory documents, communication records or other comprehensible circumstances that suggest repetition or organized commission.

Court:

The court examines all evidence in the overall context and assesses whether, according to objective standards, a removal exists and the requirements of § 130 StGB are met. The focus is on the question of whether the entitled party has actually lost the item, whether this loss is attributable to the accused and whether the qualifying character of the act is proven.

In doing so, the court particularly considers:

The court clearly distinguishes between mere misunderstandings, oversights, temporary transfers of possession or situations without a real loss of control, which do not constitute a removal within the meaning of the offense, as well as cases without verifiable repetition or organizational structure.

Accused Person:

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

She can also explain that certain actions were misunderstood, accidental or with the consent of the entitled party or that the requirements of § 130 StGB are not met.

Typical Assessment

In practice, the following evidence is particularly important in § 130 StGB:

Rechtsanwalt Peter Harlander Peter Harlander
Harlander & Partner Rechtsanwälte
„In theft proceedings, the logic of evidence counts. Video recordings, cash register data, and consistent witness statements regularly weigh more heavily than subsequent explanations because they objectively prove the change of custody. “
Select Your Preferred Appointment Now:Free initial consultation

Practical example

These examples show that robbery by theft pursuant to § 131 of the Criminal Code exists if another person’s movable property is taken away, the entitled party loses actual control, and the perpetrator secures possession of the item by violence or life-threatening threat after discovering the act. What is decisive is not the value of the item or the duration of the removal, but the subsequent escalation against persons to secure the loot.

subjective elements of the offence

The subjective element of robbery by theft pursuant to § 131 of the Criminal Code requires intent. The perpetrator must recognize that they are removing another person’s movable property without consent and thereby depriving the entitled party of actual control, while they themselves are establishing new custody.

It is sufficient that the perpetrator seriously considers the removal possible and accepts it. A specific intent is not required; conditional intent is sufficient.

The intent must also relate to the fact that the perpetrator after the act is discovered to secure the loot uses force or threatens with imminent danger to body or life. The perpetrator must therefore recognize and at least tacitly accept that their actions serve not the removal, but the preservation of the already acquired item.

In addition, an intent to enrich oneself is required. The perpetrator must at least tacitly accept to obtain an unlawful financial advantage for themselves or a third party, for example by retaining, using, or passing on the item.

No subjective element exists if the perpetrator seriously assumes an entitlement to the removal or does not recognize that force or threat is used to secure the loot.

Select Your Preferred Appointment Now:Free initial consultation

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 robbery by theft pursuant to § 131 of the Criminal Code is generally not excluded, but is only considered in exceptional cases. The offense combines a property offense with violence against persons or a threat with immediate danger to life or limb. This is regularly associated with a significantly increased degree of unlawfulness, which allows a diversionary settlement only to a very limited extent.

A diversion can at best be considered if the use of force was minor or limited to a mere threatening gesture, no injuries have occurred, the perpetrator acts immediately with insight, and the consequences of the crime can be quickly and fully compensated. With increasing intensity of violence, in the case of serious threats or injury consequences, the possibility of a diversionary settlement decreases significantly.

Diversion may be considered if

If a diversion comes into consideration, the court can order monetary payments, community service, supervision instructions or a victim-offender mediation. A diversion leads to no conviction and no criminal record entry.

Exclusion of Diversion:

A diversion is particularly excluded if

Only in the case of extremely minor guilt and merely minor escalation can it exceptionally be examined whether a diversionary procedure is permissible. In practice, diversion under § 131 StGB is significantly more limited than in the case of simple theft and strongly depends on the specific circumstances of the individual case.g is. In practice, diversion under § 128 StGB possible, but significantly more limited than in the case of the basic offense and strictly dependent on the specific circumstances of the individual case.

Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys
„Diversion is not automatic. Planned action, repetition, or noticeable financial damage often preclude a diversionary settlement in practice. “
Select Your Preferred Appointment Now:Free initial consultation

Sentencing and consequences

The court assesses the penalty according to the extent of the property interference and additionally according to the nature, intensity, and effects of the use of force or threat with which the loot was secured. Decisive is how strongly the perpetrator has interfered with the personal safety of the victim, whether injuries have occurred, and to what extent the authorized party was impaired by the overall behavior. It must also be considered whether the perpetrator acted purposefully, deliberately, or repeatedly and whether the approach constitutes a significant escalation beyond the mere deprivation of property.

Aggravating Factors Exist in Particular If

Mitigating Factors Include

The court may conditionally suspend a prison sentence if it does not exceed two years and the perpetrator has a positive social prognosis. In the case of severe use of force, injury consequences, or qualified successes, a conditional remission is, however, regularly not considered.

Penalty Range

The theft according to § 127 StGB forms the basic offense and is threatened with imprisonment of up to six Der Theft according to § 127 StGB forms the basic offense and is threatened with imprisonment of up to six months or a fine of up to 360 daily rates.

The robbery by theft according to § 131 of the Criminal Code constitutes an independent qualification that is based on an already committed theft and is characterized by subsequent use of force or threat with immediate danger to life or limb. Due to the additional endangerment of personal safety, the law provides for a significantly increased penalty range.

If the perpetrator uses force against a person or threatens with imminent danger to body or life during a theft after being caught in the act in order to retain the removed item for themselves or a third party, the penalty range is imprisonment from six months to five years. A fine is not provided for in this case.

However, if the use of force leads to bodily injury with serious long-term consequences or to the death of a person, the qualified success variant of § 131 of the Criminal Code applies. In these cases, the penalty range increases significantly and ranges from five to fifteen years imprisonment.

Further qualified forms of theft, such as theft by burglary or with weapons, commercial theft, or other specially regulated offenses, lead to the fact that the more specific legal penalty range is decisive in each case. In the case of robbery by theft, the basic offense of theft recedes, while the specific type of use of force and its consequences for the determination of the penalty within the intended framework are of central importance.

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.

Note:

In the case of robbery by theft pursuant to § 131 of the Criminal Code, no fine is provided for. The law provides for exclusively imprisonment.

Imprisonment and (partially) suspended sentence

§ 37 of the Criminal Code: If the statutory penalty threat extends up to five years, the court may impose a fine instead of a short prison sentence of no more than one year. This possibility does not exist in the case of robbery by theft pursuant to § 131 of the Criminal Code, as the offense provides exclusively for imprisonment. An application of § 37 of the Criminal Code is, therefore, excluded.

§ 43 StGB: A prison sentence can be conditionally suspended if it does not exceed two years and the perpetrator has a positive social prognosis. This possibility also exists in principle in the case of robbery by theft, but is significantly limited, as the offense presupposes the use of force or dangerous threat. A conditional remission is only realistically considered in the case of low intensity of violence, lack of serious consequences, first-time offense, and clear insight.

§ 43a StGB: The partially conditional remission allows a combination of unconditional and conditionally suspended penalty part and is possible for penalties over six months and up to two years. This form can theoretically also be applied in the case of robbery by theft if the guilt-appropriate penalty is in this range. In the case of severe consequences of violence or increased dangerousness, it is regularly excluded.

§§ 50 to 52 of the Criminal Code: The court may issue instructions and order probation assistance. These relate in particular to violence prevention, behavioral requirements, contact bans, restitution or therapeutic measures. The goal is to prevent further acts of violence and achieve a sustainable change in behavior.

Jurisdiction of the courts

Subject-matter Jurisdiction

For robbery by theft pursuant to § 131 of the Criminal Code, exclusively the Regional Court is responsible as a lay judge court. The area of responsibility of the District Court is excluded, as the offense provides for a imprisonment of six months to five years and § 131 of the Criminal Code is expressly assigned to the lay judge court by law.

If there is a particularly serious case in which the use of force results in bodily injury with severe permanent consequences or the death of a person, the penalty range increases to five to fifteen years of imprisonment. Also in these cases, the regional court remains responsible as a lay judge court.
A jury court is not considered, as the requirements for jurisdiction with jurors are not met.

Rechtsanwalt Peter Harlander Peter Harlander
Harlander & Partner Rechtsanwälte
„The judicial jurisdiction follows exclusively the statutory jurisdiction order. Decisive are penalty threat, place of the offense, and procedural jurisdiction, not the subjective assessment of the parties involved or the actual complexity of the facts. “

Local Jurisdiction

The court at the place of removal is responsible. Decisive is where the entitled party lost actual control over the item and the perpetrator established new custody.

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

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

Hierarchy of Courts

Judgments of the regional court as a lay judge court can be challenged with appeal and appeal on points of nullity. The Supreme Court is responsible for the decision on these legal remedies in accordance with the statutory provisions.

Civil claims in criminal proceedings

In the case of robbery by theft pursuant to § 131 of the Criminal Code, the injured person can assert their civil law claims as a private party directly in the criminal proceedings. Since this offense also concerns the unauthorized removal of another person’s movable property, the claims relate in particular to the value of the item, replacement costs, loss of use, loss of use advantage as well as other property law damages that have arisen as a result of the removal.

In addition, consequential damages can be claimed, which result from the use of force or threat, such as treatment costs, loss of earnings, or other economic disadvantages, provided that they are causally attributable to the act.

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 compensation, such as the return of the item, the payment of the value, or a serious effort to compensate, can have a mitigating effect, provided that it occurs in a timely and complete manner.

However, if the perpetrator has used force or threatened with imminent danger to body or life, a subsequent compensation for damages regularly loses a significant part of its mitigating effect. In such cases, a later compensation only partially compensates for the increased personal injustice of the act.

Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys
„Private party claims must be clearly quantified and documented. Without proper damage documentation, the claim for compensation in criminal proceedings often remains incomplete and shifts to civil proceedings. “
Select Your Preferred Appointment Now:Free initial consultation

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

Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys
„The right steps in the first 48 hours often determine whether a procedure escalates or is carried out in a controlled manner. “
Select Your Preferred Appointment Now:Free initial consultation

Practical guidance and behavioural advice

  1. Maintain silence.
    A brief statement is sufficient: “I am exercising my right to remain silent and will first speak with my defense counsel.”
    This right applies from the very first interrogation by the police or the public prosecutor.
  2. Contact defense counsel immediately.
    No statement should be made without access to the investigation files. Only after reviewing the files can the defense assess which strategy and evidence preservation measures are appropriate.
  3. Secure evidence immediately.
    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.
Rechtsanwalt Peter Harlander Peter Harlander
Harlander & Partner Rechtsanwälte
„Those who act thoughtfully, secure evidence, and seek legal assistance early retain control over the proceedings.“

Your Benefits with Legal Assistance

The robbery by theft pursuant to § 131 of the Criminal Code is based on an already completed theft and additionally requires the use of force or threat with immediate danger to life or limb to secure the loot. The legal assessment depends largely on the specific course of events, the time and purpose of the violence, the intent and the evidence. Even minor deviations in the facts can determine whether there is a robbery by theft, a robbery or another offense.

An early legal assistance ensures that the facts are correctly classified, evidence is carefully assessed, and exculpatory circumstances are legally usable.

Our law firm

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

Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys
„Legal support means clearly separating the actual events from interpretations and developing a robust defense strategy based on them.“
Select Your Preferred Appointment Now:Free initial consultation

FAQ – Frequently Asked Questions

Select Your Preferred Appointment Now:Free initial consultation