Theft

Theft as per § 127 of the Criminal Code occurs when a person takes a movable object belonging to another person from another by breaking foreign custody and establishing new custody, and thereby acts intentionally to unlawfully enrich themselves or a third party. The economic value of the item is not decisive, but rather the interference with the foreign power of disposal. Even the short-term acquisition of actual control over the item is sufficient. The offense protects the foreign assets from unauthorized removal and forms the basic offense of property offenses.

objective elements of the offence

The objective element of § 127 of the Criminal Code requires the removal of a movable object belonging to another person. Removal means that the perpetrator removes the actual control of the entitled party over the item and establishes new control themselves or through a third party, i.e., takes possession of the item and deprives the previous owner of control over it.

What is decisive is not the economic value of the item, but the interference with the foreign power of disposal, i.e., the ability of the entitled party to freely dispose of the item. Even the short-term acquisition of the item is sufficient if the entitled party thereby loses actual control. Permanent possession or later use is not required.

§ 127 of the Criminal Code protects the foreign assets from unauthorized removal and forms the basic offense of theft offenses. A particular significance of the item or a certain value limit is not required for the realization of the offense.

Steps of legal assessment

Perpetrator:

The subject of the offense can be any person responsible under criminal law who takes possession of an item belonging to another person and thereby deprives the entitled party of actual control. Personal characteristics of the perpetrator are irrelevant.

Object of the Offense:

The object of the offense is any movable physical object belonging to another person with asset value. An item is foreign if it does not belong exclusively to the perpetrator. Movable is any item that can actually be taken away. The value or particular significance of the item is irrelevant.

Act:

The act consists of the removal. This exists if the perpetrator takes possession of the item without or against the will of the entitled party and this thereby loses actual control. The removal can take place secretly, openly, or by exploiting carelessness, as long as no violence is used against persons.

Result of the Offense:

The result of the offense is that the entitled party loses control over the item and the perpetrator can dispose of it themselves. Even the short-term taking possession of the item is sufficient. A permanent loss or a concrete financial loss is not required.

Theft as per § 127 of the Criminal Code therefore exists if a movable object belonging to another person is taken away without authorization and the previous owner loses actual control over it.

Causality:

The loss of control over the item must have been caused by the behavior of the perpetrator. Without the act of removal, it would not have come to this.

Objective Attribution:

The result is objectively attributable if exactly what § 127 of the Criminal Code is intended to prevent is realized, namely that someone takes possession of foreign items, although they are not entitled to do so.

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Distinction from other offences

The element of theft as per § 127 of the Criminal Code covers cases in which a movable object belonging to another person is intentionally taken away, i.e., the entitled party loses actual control over the item and the perpetrator establishes new custody. The focus is on the removal of the item itself, not on its damage or alteration. The injustice arises from the interference with the foreign assets by removal, regardless of whether the item is damaged in the process or not.

• § 129 of the Criminal Code – Theft by Burglary or with Weapons: The theft by burglary or with weapons constitutes a qualified form of commission of theft. Here, too, it is about the removal of a movable object belonging to another person, but under aggravating circumstances such as a burglary or carrying a weapon. While § 127 of the Criminal Code regulates the basic offense of removal, § 129 of the Criminal Code is based on the type of execution of the offense. If these qualifying circumstances exist, the simple theft recedes and the stricter penalty is applied.
• § 125 of the Criminal Code – Damage to Property: The damage to property covers any intentional impairment of a foreign item that worsens its condition or usability. The entitled party generally retains the item, but it is damaged, disfigured, or rendered unusable. The distinction from theft is made according to the point of attack: In the case of damage to property, the item remains with the entitled party, its condition worsens. In the case of theft, the entitled party loses the item itself. If damage and removal coincide, for example, if an item is damaged and then stolen, damage to property and theft exist side by side, as different legal interests are violated.

Concurrences:

Genuine Concurrence:

Genuine concurrence exists if further independent offenses are added to the theft, such as damage to property, trespassing, or dangerous threat. The theft retains its independent content of injustice and is not displaced. If several legal interests are violated, the offenses stand side by side.

Spurious Concurrence:

A displacement due to specificity comes into consideration if another element encompasses the entire content of injustice of the theft. This is the case, for example, with qualified forms of theft, in which § 127 of the Criminal Code recedes as the basic offense.

Multiple Offenses:

Multiple offenses exist if several thefts are committed independently, for example, in the case of removals separated in time or with different objects of the offense. Each removal forms its own act, provided that there is no natural unity of action.

Continued Action:

A single act can be assumed if several removals are directly related and are carried out with a uniform intent, for example, in the case of several appropriations within the same plan of action. The act ends as soon as no further removals take place or the perpetrator abandons their intent.

Burden of proof and evaluation of evidence

Public Prosecutor’s Office:

The public prosecutor’s office must prove that the accused has taken away a movable object belonging to another person. What is decisive is the proof that the entitled party has lost actual control over the item and the accused has gained new control over it themselves or through a third party. It is not about the value of the item, but about the objective removal of the item.

It must be proven, in particular, that

• an act of removal was actually carried out,
• the item was someone else’s, i.e. not exclusively owned by the accused,
• the entitled party has lost actual control over the item,
• the accused has established new custody, even if this was only for a short time,
• the removal is causally related to the behavior of the accused.

The public prosecutor’s office must also present whether the alleged removal is objectively ascertainable, for example, through witness statements, video recordings, cash register data, inventory differences, or other comprehensible circumstances that explain the loss of the item.

Court:

The court examines all evidence in the overall context and assesses whether, according to objective standards, a removal exists. The focus is on the question of whether the entitled party has actually lost the item and whether this loss is attributable to the accused.

In doing so, the court particularly considers:

• custody relationships before and after the incident,
• type and course of the alleged removal,
• time and duration of the loss of control,
• witness statements on the course of events and the involvement of the accused,
• video recordings, cash register data, or other objective evidence,
• whether a reasonable average person would assume that the item was taken from the entitled party.

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 that fulfills the elements of the offense.

Accused Person:

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

• whether a removal actually took place,
• whether the entitled party really lost control over the item,
• whether there was consent, authorization, or intent to return,
• whether the item was only touched or moved briefly without establishing new custody,
• contradictions or gaps in the presentation of the course of events,
• alternative causes that could explain the loss of the item just as plausibly.

It can also present that certain actions were misunderstood, accidental, or with the consent of the entitled party and therefore no removal exists.

Typical Assessment

In practice, the following evidence is of particular importance in the case of § 127 of the Criminal Code:

• video recordings or photos, for example, from shops or public spaces,
• witness statements on the course of the removal,
• cash register data, inventory documents, or access controls,
• communication records from which the course of events or intentions can be seen,
• time sequences that show when the item disappeared and who had access.

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Practical example

• Removal of a high-value item with considerable financial loss: The perpetrator steals a high-value bicycle from an unlocked garage. He assumes that the owner will not notice the loss in the short term and intends to use the bicycle only temporarily. In fact, the owner loses actual control over the item, while the perpetrator establishes new custody. The value of the bicycle is significantly above average, but is not decisive for the element of the offense. What is decisive is that the perpetrator takes the item without consent and deprives the entitled party of it. Even the short-term acquisition is sufficient to realize the theft as per § 127 of the Criminal Code. The economic damage illustrates the extent of the interference with property, but is not a prerequisite for the element of the offense.
• Removal of a low-value item despite error about the significance: The perpetrator takes possession of a foreign item in a shop and leaves the sales area without paying. He considers the item to be of low value and believes that this will „not matter“. In fact, the shop owner loses the power of disposal and control over the item, while the perpetrator establishes new custody. Whether the item has a high or low value is irrelevant for the theft. The only decisive factor is the unauthorized removal of the item. The error about the significance or the value does not change the fact that the element of § 127 of the Criminal Code is fulfilled.

These examples show that theft as per § 127 of the Criminal Code already exists if a movable object belonging to another person is taken away without consent and the entitled party loses actual control, even if the removal only takes place briefly or the perpetrator considers the economic damage to be low. What is decisive is not the value of the item, but the interference with the foreign power of disposal and control over the item.

subjective elements of the offence

The subjective element of theft as per § 127 of the Criminal Code requires intent. The perpetrator must know that they are taking away a movable object belonging to another person by depriving the entitled party of actual control over the item and establishing new custody themselves. They must recognize that the item does not belong to them and that the removal takes place without the consent of the entitled party.

The perpetrator must therefore understand that their behavior in the overall picture represents a targeted removal of a foreign item and is typically suitable to exclude the entitled party from the use and disposal of the item. For the intent, it is sufficient that the perpetrator seriously considers the removal possible and accepts it. An intent that goes beyond this is not required; conditional intent is sufficient.

In addition, theft requires an intent to enrich oneself. The perpetrator must at least take into account, approvingly, to obtain an unlawful financial advantage for themselves or a third party, for example, by keeping, using, passing on, or selling the item. This additional internal objective is referred to as an extended element of intent and is typical for many property offenses.

No subjective element exists if the perpetrator seriously believes to be entitled to the removal, that the action is desired or permitted by the entitled party, or that they are entitled to the item. Anyone who assumes to act lawfully or mistakenly assumes consent does not fulfill the requirements of § 127 of the Criminal Code.

Ultimately, a person acts intentionally if they knowingly and willingly take away another person’s movable property and at the same time at least tacitly accept the financial advantage associated with the removal of the item.

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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 the case of theft pursuant to § 127 of the Criminal Code. The offense concerns the unauthorized removal of another person’s movable property and, depending on the specific circumstances, exhibits a varying degree of injustice and guilt. Unlike qualified property offenses, there is not necessarily a particularly high degree of injustice involved, which is why diversionary settlements are more frequently considered in practice.

In cases where the damage is minor, the perpetrator acts immediately with insight, and the consequences can be quickly compensated, diversion is regularly to be examined. However, with increasing damage amount, planned action or multiple offenses, the probability of a diversionary settlement decreases significantly.

Diversion may be considered if

• the guilt is low,
• no significant financial damage has occurred,
• no serious consequential effects exist,
• no planned or repeated behavior is detectable,
• the facts are clear and manageable,
• and the perpetrator is insightful, cooperative, and willing to make amends.

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:

Diversion is excluded if

• significant financial damage has occurred,
• the act was committed deliberately, purposefully, or systematically,
• several independent acts of theft exist,
• repeated or systematic behavior is present,
• special aggravating factors such as burglary, overcoming security measures, or breach of trust are added,
• or the overall behavior constitutes a serious violation of another person’s property rights.

Only in cases of clearly minimal guilt and immediate remorse can it be examined whether an exceptional diversionary approach is permissible. In practice, diversion under § 127 of the Criminal Code is possible, but tied to the specific circumstances of the individual case.

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Sentencing and consequences

The court assesses the penalty based on the extent of the property infringement, the nature, duration, and intensity of the removal, and the extent to which the removal of the item has impaired the economic position or use of the entitled party. Decisive is whether the perpetrator acted purposefully, systematically, or repeatedly and whether the behavior has caused a noticeable impairment of assets.

Aggravating Factors Exist in Particular If

• the removals were continued over a longer period,
• systematic or particularly persistent behavior was present,
• significant financial damage has occurred,
• several objects or economically significant items were affected,
• despite clear indications or requests to cease, further removals occurred,
• a special breach of trust was present, such as in cases of theft within the context of a close, working, or dependent relationship,
• or relevant prior convictions exist.

Mitigating Factors Include

• Impeccability,
• a full confession and recognizable insight,
• an immediate cessation of the criminal behavior,
• active reparative efforts or damage settlement,
• special stress or overwhelming situations for the perpetrator,
• or an excessively long duration of proceedings.

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

Penalty Range

The theft according to § 127 of the Criminal Code forms the basic offense and is punishable by imprisonment of up to six months or a fine of up to 360 daily rates.

If the theft is committed on a commercial basis (§ 130 of the Criminal Code) or the value of the item exceeds € 5,000 (§ 128 of the Criminal Code), it is no longer a simple theft. In these cases, the penalty range of the respectively relevant qualified offense is to be applied, which is significantly higher than that of § 127 of the Criminal Code.

Further qualifying circumstances such as burglary or carrying weapons (§ 129 of the Criminal Code) as well as use of force when caught in the act (§ 131 of the Criminal Code) also lead to the fact that the higher penalty range of the respective offense is decisive.

Monetary Penalty – Day-fine System

Austrian criminal law calculates monetary penalties according to the day-fine system. The number of day-fines depends on the guilt, the amount per day depends on the financial capacity. In this way, the penalty is adapted to the personal circumstances and yet remains noticeable.

• Range: up to 720 daily rates – at least €4, maximum €5,000 per day.
• Practical formula: Approximately 6 months imprisonment corresponds to around 360 day-fines. This conversion serves only as orientation and is not a rigid scheme.
• In case of non-payment: The court can impose a substitute custodial sentence. As a rule, the following applies: 1 day of substitute custodial sentence corresponds to 2 day-fines.

Note:

In the case of theft according to § 127 of the Criminal Code, a fine is regularly considered, especially in cases of minor guilt, first-time offense, and low value of damage. In practice, simple theft is often settled with a fine or diversionally, provided that no qualifying circumstances exist.

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 therefore exists also in the case of theft pursuant to § 127 of the Criminal Code. In practice, § 37 of the Criminal Code is frequently applied in the case of simple theft, as the penalty range is low and it often involves first offenses or minor property infringements. An application is particularly considered if no qualifying circumstances exist, the damage has been minor or compensated, and no relevant prior convictions exist.

§ 43 of the Criminal Code: A prison sentence can be conditionally suspended if it does not exceed two years and the perpetrator has a positive social prognosis. This possibility exists also in the case of theft pursuant to § 127 of the Criminal Code. A conditional remission is granted more cautiously if the theft was committed systematically, repeatedly, or under aggravating circumstances. A conditional remission is realistic above all if the damage has been fully compensated, the perpetrator is remorseful, and no qualified characteristics of the offense exist.

§ 43a of the Criminal Code: The partially conditional remission allows a combination of unconditional and conditionally suspended part of the penalty. It is possible for penalties over six months and up to two years.
In the case of theft according to § 127 of the Criminal Code, § 43a of the Criminal Code is applied only exceptionally, as the statutory penalty range is regularly under six months. This provision therefore gains practical significance above all in the case of concurrence of several offenses or in the case of prior convictions, which lead to a higher penalty assessment.

§§ 50 to 52 of the Criminal Code: The court may issue instructions and order probation assistance. These often concern the compensation of damage, the return of the item, the avoidance of further property offenses, or programmatic measures such as behavioral training. The goal is to compensate for the damage caused and to ensure that the perpetrator refrains from similar actions in the future.

Jurisdiction of the courts

Subject-matter Jurisdiction

For the theft according to § 127 of the Criminal Code, the district court is generally responsible as the court of first instance due to the comparatively low penalty threat. Offenses with a possible imprisonment of up to six months or a fine of comparable extent fall under the jurisdiction of the district courts according to the statutory rule.

Since § 127 of the Criminal Code does not provide for an increased penalty range and it is the basic offense of theft, there is no reason to involve the regional court as a single judge. A lay judge court is not considered, as a significantly higher penalty threat would be required for this.

A jury court is also ruled out, as no particularly severe penalties are provided for in this area of offenses.

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 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 regional court is possible against judgments of the district court. The regional court decides as a court of appeal on guilt, penalty, and costs.

Decisions of the regional court can subsequently be challenged by appeal on points of nullity or a further appeal to the Supreme Court, provided that the statutory requirements are met.

Civil claims in criminal proceedings

In the case of theft according to § 127 of the Criminal Code, the injured person can assert their civil law claims as a private party directly in the criminal proceedings. Since the offense concerns an unauthorized removal of another person’s movable property, the claims are directed in particular to the value of the item, replacement costs, loss of use, lost benefit of use, as well as further property law damages that have arisen from the removal.

Depending on the case, consequential damages can also be claimed for compensation, for example, if the item was needed for professional or operational purposes and the removal has led to economic disadvantages.

The private party connection suspends the statute of limitations for all claims asserted as long as the criminal proceedings are pending. The limitation period only continues after a legally binding conclusion, 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 acted systematically, repeatedly, or in a way that has led to significant financial damage, a later compensation of damage usually loses a large part of its mitigating effect. In such constellations, a subsequent compensation only partially compensates for the injustice of the act.

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Overview of criminal proceedings

Commencement of Investigation

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

Police and Public Prosecutor’s Office

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

Interrogation of the Accused

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

Access to files

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

Main Hearing

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

Rights of the accused

• Information & defense: right to notification, legal aid, free choice of defense counsel, translation assistance, and submission of evidence motions.
• Silence & counsel: right to remain silent at any time; if a defense attorney is requested, the interrogation must be postponed.
• Duty to inform: prompt notification of suspicion and rights; exceptions only permitted to safeguard the purpose of the investigation.
• Practical access to files: investigation and trial records; access by third parties is restricted to protect the accused.

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Practical guidance and behavioural advice

1. Maintain silence.
   A brief statement is sufficient: “I am exercising my right to remain silent and will first speak with my defense counsel.”
   This right applies from the very first interrogation by the police or the public prosecutor.
2. Contact defense counsel immediately.
   No statement should be made without access to the investigation files. Only after reviewing the files can the defense assess which strategy and evidence preservation measures are appropriate.
3. Secure evidence immediately.
   You should secure all available documents, messages, photos, videos, and other records as early as possible and keep copies. Digital data must be regularly backed up and protected from subsequent changes. Note down important individuals as potential witnesses and promptly record the sequence of events in a memorandum.
4. Do not contact the opposing party.
   Your own messages, calls, or posts may be used as evidence against you. All communication should take place exclusively through your defense counsel.
5. Secure video and data recordings in time.
   Surveillance videos from public transport, venues, or property management systems are often automatically deleted after only a few days. Requests for data preservation must therefore be submitted immediately to the operators, the police, or the public prosecutor’s office.
6. Document searches and seizures.
   In cases of house searches or seizures, you should request a copy of the warrant or record. Note the date, time, persons involved, and all items taken.
7. In case of arrest: make no statements about the matter.
   Insist on immediate notification of your defense counsel. Pre-trial detention may only be imposed if there is strong suspicion of guilt and an additional ground for detention. Less severe measures (e.g., pledge, reporting duty, contact ban) must take precedence.
8. Prepare reparation strategically.
   Payments, symbolic gestures, apologies, or other compensatory offers should be handled and documented exclusively through the defense. Structured reparation can positively influence diversion and sentencing.

Your Benefits with Legal Assistance

The theft according to § 127 of the Criminal Code concerns the unauthorized removal of another person’s property and is significantly linked to the removal, the intent to enrich oneself, as well as the concrete custody conditions. The legal assessment depends heavily on the actual course of events, the intent, the value of the item, and the evidentiary situation. Even small deviations in the facts can decide whether it remains a simple theft, a diversion is possible, or an acquittal is considered.

An early legal support ensures that the facts are correctly classified, evidence is properly assessed, and exculpatory circumstances are worked up in a legally usable manner. Especially in the case of accusations that are based on circumstantial evidence or witness statements, a precise legal analysis is crucial.

Our law firm

• carefully examines whether there is actually a removal with intent to enrich oneself or whether alternative legal assessments are possible,
• analyzes the evidentiary situation, in particular custody conditions, intent, possible consents or errors,
• protects against one-sided or exaggerated accusations by critically questioning the course of events and the financial damage,
• develops a clear defense strategy that fully captures the actual course of events and classifies it legally accurately.

As a criminal law specialized representation, we ensure that the accusation of theft is thoroughly, objectively, and legally soundly examined and that the proceedings are conducted on a solid factual basis.

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FAQ – Frequently Asked Questions

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