Stalking

Persistent Stalking according to § 107a StGB encompasses any prolonged, continuous influence on a person that is objectively capable of unreasonably impairing their way of life. The legislator thus covers typical stalking acts, such as repeatedly seeking the victim’s physical proximity, constantly initiating communication, fraudulently ordering goods in the name of the affected person, or causing third parties to make contact. The publication of facts or images from the highly personal domain also falls under this. The overall assessment is always decisive: The individual actions must be carried out over a longer period and, in their totality, cause severe psychological distress or restrict the free conduct of life. The norm aims to prevent a person from being harmed in their privacy, security, and self-determination by systematic, intrusive, and relentless interference.

objective elements of the offence

The objective elements of the offense of § 107a StGB Persistent Stalking cover any outwardly recognizable behavior that extends over a certain duration, occurs continuously, and is objectively capable of unreasonably impairing a person’s way of life. What is protected is the freedom to shape one’s daily life without constant observation, harassment, or pressure. The decisive factor is the overall pattern of behavior, not the perpetrator’s inner motivation. The victim does not actually have to feel fear; it is sufficient that the behavior is objectively capable of generating significant psychological pressure.

Steps of legal assessment

Perpetrator:

Any person can be a perpetrator who continues the described actions over a longer period or has them carried out by third parties. A special position or relationship with the victim is not required. The decisive factor is that the behavior remains objektiv zurechenbar (objectively attributable) to the perpetrator.

Object of the Offense:

The object of the offense is any person whose free conduct of life is impaired by the behavior. The norm particularly protects privacy, personal security, and the ability to organize daily life without interference.

Act:

The criminal act is the central element of the offense. Persistent Stalking requires continuous, repeated, and evidently persistent behavior over a certain period. The actions must form a distressing overall pattern that, according to general life experience, is capable of impairing the victim’s way of life.

Legal Definition

According to § 107a para. 2 StGB, persistent stalking occurs when someone repeatedly and over a longer period performs certain actions that are objectively capable of noticeably burdening another person’s life. The law names five typical behaviors. They share the characteristic that the perpetrator continuously interferes with the victim’s daily life, thereby causing an unreasonable impairment.

1. Repeatedly seeking physical proximity

The perpetrator regularly appears at places where the victim usually stays. This creates the impression of constant observation or pursuit. Individual encounters are not sufficient; the recurring pattern is decisive.

2. Continuous contact via communication means or through third parties

The perpetrator persistently contacts the victim – through calls, messages, social media, or via third parties. It concerns persistent, unwanted influence, not isolated attempts at contact.

3. Ordering goods or services in the victim’s name

Through the misuse of personal data, deliveries or services are triggered that burden the victim organizationally, financially, or emotionally. Typical is the feeling of loss of control.

4. Causing third parties to make contact

The perpetrator activates third parties – for example, through fake advertisements or manipulated profiles – so that the victim is contacted by unknown persons. This leads to unforeseeable, permanent disruptions of daily life.

5. Publication of highly personal facts or images

Without consent, intimate or particularly private information or images are published. Such publications regularly generate massive psychological pressure and can have social or professional consequences.

Result of the Offense:

A separate outcome of the offense is not required. It is sufficient that the acts of stalking are continued over a certain period and are objectively capable of unreasonably impairing the victim’s way of life. An actual complete change in daily life or demonstrable health consequences are not prerequisites, but they can influence the assessment of intensity.

Causality:

Causal is any behavior without which the overall pattern of stalking would not have arisen in this form. Indirect actions, such as involving or deploying third parties, are also included if they enable or intensify the persistent stalking.

Objective Attribution:

Behavior is objectively attributable if the perpetrator has created or increased a legally disapproved danger, and this danger materializes in the concrete impairment of the way of life. Not covered are random encounters, socially customary contacts, or isolated actions without an apparent intent to continue.

Qualifying circumstances

§ 107a subsection 3 StGB significantly tightens the penalty framework. An aggravated case occurs when

• the stalking lasts longer than one year, or
• it results in the victim’s suicide or attempted suicide.

These qualifications account for the particularly high risk potential of long-lasting or existentially burdensome acts of stalking.

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Distinction from other offences

The offense of persistent stalking according to § 107a StGB covers continuous behavior, built up over a longer period, which, in its overall pattern, is capable of unreasonably impairing a person’s way of life. The focus is on lasting, systematic influence that leads to continuous psychological distress and permanently restricts the personal freedom and protected sphere of life of the affected person. The wrongful content arises not from a single act, but from the repetition, duration, and persistence of the influences.

• § 105 StGB – Coercion: Coercion protects the freedom of decision in individual cases and requires that the victim is forced into a specific action, tolerance, or omission. § 107a StGB, however, does not refer to compelling behavior, but to persistent harassment that burdens the entire way of life. Both offenses can be realized concurrently, especially if additional pressure is exerted through stalking acts to compel specific behavior. Displacement does not occur, as § 107a StGB concerns an independent protected interest.
• § 107 StGB – Dangerous Threat: Dangerous threat differs from § 107a StGB in that it requires a qualified act of threatening, through which a significant evil is announced. The pressure arises directly from the prospect of a severe disadvantage. § 107a StGB, however, also covers entirely threat-free behaviors, provided they constitute an unreasonable burden in their overall pattern. While stalking can include threats, it does not require them. If both phenomena coincide, § 107 and § 107a regularly exist side by side, because the stalking goes beyond a single threat and constitutes an independent wrong.

Concurrences:

Genuine Concurrence:

True concurrence exists when additional independent offenses occur alongside persistent stalking, such as dangerous threat, coercion, property damage, data misuse, unauthorized image publication, trespassing, bodily harm, or deprivation of liberty. § 107a StGB does not displace these offenses but regularly exists independently alongside them.

Spurious Concurrence:

Displacement due to specialty only occurs if another norm fully covers the wrongfulness of persistent stalking. This is the case, for example, with § 106a StGB, if the entire harassment serves exclusively to compel a marriage. § 107c StGB can also establish specialty in individual cases if only publicly perceptible digital harassment is present.

Multiple Offenses:

Plurality of offenses exists when the perpetrator stalks different persons or acts in temporally independent sequences that are not part of a single event. Each stalking situation is to be assessed as a separate offense.

Continued Action:

A single offense is assumed if the distressing behavior is maintained without significant interruption and the same purpose is pursued, particularly control, intimidation, or persistent impairment of the way of life. The offense ends when the harassment is abandoned or permanently interrupted.

Burden of proof and evaluation of evidence

Public Prosecutor’s Office:

The public prosecutor’s office must prove that the accused has repeatedly over a longer period stalked a person in a manner that was objectively capable of unreasonably impairing their way of life. Crucial is the proof that several concrete behaviors were committed that are typical for persistent stalking and have coalesced into a distressing overall pattern.

It must be proven, in particular, that

• the stalking was repeated and persistent,
• the actions clearly went beyond random encounters or normal attempts at contact,
• the overall behavior was realistically capable of noticeably restricting their daily life.

The public prosecutor’s office must also demonstrate that the individual actions belong together and form a recognizable stalking pattern.

Court:

The court examines all evidence in its overall context and assesses whether the behavior, according to objective standards, was capable of permanently impairing the victim’s way of life. The central question is whether the influences, in their overall pattern, constitute an unreasonable burden.

In doing so, the court particularly considers:

• Type, frequency, and duration of the actions,
• the connection between the individual influences,
• the intensity of interference in the personal sphere of life,
• whether a reasonable average person would perceive such behavior as massively disturbing and burdensome.

The court clearly distinguishes it from misunderstandings, isolated incidents, or socially customary contacts.

Accused Person:

The accused person bears no burden of proof. However, they can raise reasonable doubts, particularly regarding

• the actual repetition or duration of the alleged behaviors,
• the question of whether they actually form a uniform stalking pattern,
• the alleged burdensome effect,
• gaps, contradictions, or missing evidence in the victim’s account.

They can also argue that certain incidents were not persistent, but rather accidental, socially customary, or misunderstood.

Typical Assessment

In practice, the following evidence is often decisive in cases of § 107a StGB:

• medical or psychological records, if the burden is to be demonstrably presented.
• video or photo recordings of repeated approaches or observations,
• location data or surveillance footage,
• evidence of fraudulent orders or unwanted contact mediation,
• published private images or information,
• witness statements regarding the accused’s repeated appearance,

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Practical example

• Repeatedly seeking physical proximity: A person intentionally appears repeatedly over several weeks in front of the victim’s home and workplace. The perpetrator adjusts their times to the victim’s daily routine because they have consciously observed and noted their routines. They make it clear in a message that they “will not stop showing up until you finally talk to me.”
  The targeted harassment, the temporal adaptation to routines, and the explicit announcement to continue show clear intent to burden the affected person.
• Continuous unwanted personal approaches: The perpetrator repeatedly seeks out the victim at different locations: in front of work, on the way home, in a supermarket parking lot. They once said directly: “If you keep ignoring me, I’ll just come more often.”
  Although the victim has clearly communicated multiple times that they do not want contact, the perpetrator consciously continues their behavior, changes locations, and adjusts their presence times.
  The persistence, the conscious reaction to rejection, and the explicit statement that they “will come more often” make the intent unambiguous.

These examples show that persistent stalking exists where a perpetrator continuously and consciously interferes with a person’s daily life, thereby unreasonably impairing their way of life. Decisive factors are repetition, persistence, and a clearly recognizable burdensome effect.

subjective elements of the offence

The subjective elements of the offense of § 107a StGB require intent. The perpetrator must recognize that their behavior is repeated, persistent, and burdensome, and can be objectively capable of unreasonably impairing the victim’s way of life. It is sufficient that they know or at least seriously expect that their continuous approaches, contacts, or other actions will be perceived as disturbing, harassing, or intrusive.

The perpetrator must therefore understand that their behavior, in its overall pattern, appears as persistent stalking and is typically capable of causing pressure, burden, or intrusions into privacy. A targeted specific intent is not required; dolus eventualis (conditional intent), i.e., the conscious acceptance of the burdensome effect, is usually sufficient.

There is no intent if the perpetrator seriously assumes that their behavior is not perceived as harassment, for example, because they believe the contacts are accidental or socially customary. Anyone who mistakenly assumes that their behavior cannot disturb the victim or is completely irrelevant does not fulfill the subjective elements of the offense.

Ultimately, it is decisive that the perpetrator either consciously aims for or at least knowingly accepts the possible effects of their continuous and unwanted interference. Therefore, anyone who knows or accepts that their repeated actions can significantly impair the victim’s way of life acts intentionally and fulfills the subjective elements of the offense of persistent stalking according to § 107a StGB.

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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:

Diversion is generally possible in cases of persistent stalking. Since the offense requires continuous behavior, diversion largely depends on how pronounced, how long-lasting, and how burdensome the stalking was. In cases of short duration, low intensity, clear insight, and no prior record, a diversionary resolution does occur in practice. However, the clearer a systematic or long-lasting stalking pattern is recognizable, the less likely a diversionary solution becomes.

Diversion may be considered if

• the culpability is low,
• the behavior is short-term, low-intensity, or only at the lowest threshold of persistence,
• the victim was not permanently or only slightly burdened,
• no systematic or long-term sustained stalking pattern existed,
• the facts are clear, manageable, and unambiguous,
• and the perpetrator is immediately remorseful, cooperative, and willing to make amends.

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

Exclusion of Diversion:

Diversion is excluded if

• the stalking occurred over a prolonged period,
• the victim’s burden was significant or led to severe restrictions,
• a systematic, targeted, or manipulative stalking pattern exists,
• personal data was misused or intimate content was published,
• the behavior had qualified consequences, such as massive psychological distress,
• a suicide or attempted suicide within the meaning of paragraph 3 occurred,
• or the overall behavior constitutes a severe violation of personal freedom and privacy.

Only with significantly minor culpability and immediate insight can it be examined whether an exceptional diversionary procedure is permissible. In practice, diversion for persistent stalking remains possible, but rare.

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Sentencing and consequences

The court determines the penalty based on the duration, intensity, and persistence of the stalking, as well as how severely the behavior actually affected the victim’s life. Crucial is whether the perpetrator repeatedly, targetedly, or systematically interfered with the victim’s privacy over a prolonged period and whether the stalking caused a lasting burden or restriction of daily life.

Aggravating Factors Exist in Particular If

• the stalking persisted over a prolonged period,
• a systematic or particularly persistent stalking existed,
• the victim’s way of life was significantly restricted,
• personal data was misused or intimate content was published,
• despite clear rejection, it was continued,
• a significant psychological distress occurred,
• or relevant prior convictions exist.

Mitigating Factors Include

• Impeccability,
• a full confession and recognizable insight,
• an immediate cessation of the behavior,
• reparative efforts,
• particular psychological burdens on the perpetrator,
• or excessively long proceedings.

The court may conditionally suspend a prison sentence if it does not exceed two years and the perpetrator shows a positive social prognosis. This also applies to persistent stalking, provided no particularly aggravating circumstances exist.

Penalty Range

Persistent stalking, in its basic form according to § 107a para. 1 StGB, is punishable by imprisonment for up to one year or a fine of up to 720 daily rates. The legislator considers the repeated, persistent, and objectively burdensome influence on a person as a significant interference with their privacy, security, and free way of life. This basic offense forms the starting point for the threatened penalty.

For aggravated cases, § 107a para. 3 StGB provides for an increased penalty framework of up to three years imprisonment. The increased penalty applies in particular when

• the stalking lasted longer than one year, or
• the behavior resulted in the suicide or attempted suicide of the persecuted person.

Thus, the legislator significantly tightens the sanction for particularly long-lasting or particularly severe stalking behavior.

A later apology, distancing, or cessation of the behavior does not change the statutory penalty framework. Such circumstances can only be considered within the scope of sentencing, but do not affect the legal classification of the offense.

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.

Note:

In cases of persistent stalking, a fine is primarily considered when the behavior is short-term, not very intense, and at the lower end of persistence. In cases where the stalking occurred only for a very limited time, caused no severe burdens, and the perpetrator is immediately remorseful, the court often decides on a fine. However, the clearer a permanent or systematic stalking pattern exists, or the more significantly the victim’s life was affected, the more likely imprisonment becomes the focus.

Imprisonment and (partially) suspended sentence

§ 37 StGB: 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 for offenses whose basic elements provide for a fine or imprisonment for up to one year, and where higher penalty frameworks are permissible in aggravated cases. In practice, however, § 37 StGB is applied cautiously when the behavior was particularly burdensome, systematic, or of considerable intensity. In less serious cases, however, § 37 StGB can certainly be invoked.

§ 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 option also exists for offenses with a basic penalty framework of up to one or more years. Conditional suspension is granted more cautiously if aggravating circumstances exist or the behavior has caused a significant burden. It is particularly realistic when the behavior is less severe, arose situationally, or caused no lasting harm to the victim.

§ 43a StGB: Partial conditional suspension allows a combination of an unconditional and a conditionally suspended part of a prison sentence. It is possible for sentences exceeding six months and up to two years. Since in aggravated constellations of many offenses, sentences in the upper range of the penalty framework can be imposed, § 43a StGB is regularly considered. However, in cases with particularly serious circumstances, long duration, or significant burdensome effect, it is applied noticeably more cautiously.

§§ 50 to 52 StGB: The court can additionally issue instructions and order probation assistance. Consideration may be given to contact bans, specific supervision or therapy programs, compensation for damages, or mandatory measures for behavioral change. The goal is stable legal probation and the prevention of further criminal acts. Particular attention is paid to the protection of the affected person and the binding prevention of further burdensome behaviors.

Jurisdiction of the courts

Subject-matter Jurisdiction

For the basic form of persistent stalking, the District Court is generally responsible. The reason is simple: normally, a penalty of up to one year imprisonment or a fine is threatened, and such proceedings fall under the jurisdiction of the District Court.

However, if a more serious case exists – for example, if the behavior lasted longer than one year or if it resulted in suicide or attempted suicide as a consequence of the stalking – then the Regional Court as a single judge takes over. These more serious variants have a higher penalty framework and therefore can no longer be decided by the District Court.

If a particularly serious constellation arises, where persistent stalking is associated with a severe outcome and the penalty framework significantly increases as a result, the Regional Court as a lay judge court decides. Here, in addition to the judge, two lay judges participate, because the law requires an expanded panel for more serious cases.

A jury court is not provided for, because no variant of persistent stalking allows for a life sentence, and thus the legal requirements are not met.

Local Jurisdiction

The court of the place of the offense is competent. Particularly relevant is

• where the stalking acts were committed,
• where the affected person perceived the effects,
• where the burdening or impairing effect occurred,
• or where accompanying actions were taken that are part of the stalking incident.

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

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

Civil claims in criminal proceedings

In cases of persistent stalking, the victim themselves or close relatives, as private parties, can assert civil claims directly in criminal proceedings. Since the offense is regularly based on repeated, burdensome, and psychologically impairing behavior, pain and suffering compensation, costs of psychological care, loss of earnings, and compensation for further emotional or health consequences are often at issue.

The private party joinder suspends the statute of limitations for all asserted claims as long as the criminal proceedings are pending. Only after a legally binding conclusion does the limitation period begin to run again, insofar as the claim has not been fully awarded.

Voluntary reparation for damages, such as a sincere apology, financial compensation, or active support for the affected person, can have a mitigating effect on the sentence, provided it is timely, credible, and complete.

However, if the perpetrator has shown persistent, systematic stalking behavior over a prolonged period, massively burdened the affected person, misused personal data, or created a particularly severe psychological stress situation, later compensation generally largely loses its mitigating effect. In such cases, subsequent compensation cannot decisively relativize 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

Cases of persistent stalking involve infringements on a person’s privacy, personal freedom, and psychological integrity. Crucial is whether the behavior was actually capable of unreasonably impairing the victim’s way of life and causing a persistent burden. Even small differences in duration, frequency, intensity of approach, or the personal situation of those involved can significantly alter the legal assessment.

Early legal representation ensures that all stalking acts are correctly documented, statements are properly classified, and both incriminating and exculpatory circumstances are carefully examined. Only a structured analysis reveals whether persistent stalking in the legal sense truly exists, or whether individual incidents were exaggerated, misunderstood, or inaccurately placed in an overall context.

Our law firm

• examines whether the behavior actually reaches the legal threshold of persistent stalking,
• analyzes messages, sequences, and contacts for contradictions or ambiguities,
• protects you from hasty assessments and one-sided evaluations,
• and develops a clear defense strategy that comprehensibly presents the actual course of events.

As specialists in criminal law, we ensure that the accusation of persistent stalking is legally precisely examined and that the proceedings are conducted on a complete and balanced factual basis.

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FAQ – Frequently Asked Questions

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