Property damage

Property damage according to § 125 of the Criminal Code exists if someone intentionally impairs someone else’s property in its substance or function. This includes any form of destruction, damage, defacement or rendering unusable. The decisive factor is that the item objectively suffers a disadvantage, be it through breakage, scratches, soiling, malfunctions or other interventions that reduce its condition or usability. This protects the value and integrity of someone else’s property, as well as the owner’s legitimate interest in its proper condition.

objective elements of the offence

The objective element of § 125 of the Criminal Code covers any intentional impairment of someone else’s property that adversely alters its condition or usability. The decisive factor is the actual intervention in the substance or function of the item, regardless of whether the change is slight, temporary or quickly repairable. The offense protects the right of ownership and the integrity of someone else’s property, i.e. the right of the entitled party to determine the condition and use of their property themselves. An action is objectively an offense as soon as it destroys, damages, defaces or renders the item unusable, without any justification. A merely minor or optical impairment is sufficient, provided that it has objectively detrimental effects on the condition of the item.

Steps of legal assessment

Perpetrator:

Any person who is criminally responsible and impairs someone else’s property can be held liable for property damage. It does not matter whether it is the owner of another item, a passer-by, a customer, a neighbor or any other party involved. The only decisive factor is that the damaging act originates from this person.

Object of the Offense:

The object of the offense is any tangible, physical object belonging to another person, regardless of its value, size, nature or form of ownership. The interest of the owner or other entitled party is protected, ensuring that their property is neither damaged nor functionally impaired. The item is always considered someone else’s if it is not at least co-owned by the perpetrator.

Act:

The act is any behavior that worsens the condition of someone else’s property. These include, in particular:

• Destroying (complete elimination of existence or functionality),
• Damaging (noticeable impairment of substance or function),
• Defacing (optical impairment against the will of the entitled party),
• Rendering unusable (temporary or permanent elimination of practical usability).

Property damage exists if:

• the perpetrator performs an action on the item,
• the item is thereby impaired in its condition or function,
• and the item is someone else’s.

It is irrelevant whether the damage is minor or repairable without great effort. Even a not just completely insignificant impairment is sufficient.

Result of the Offense:

The success of the act consists in the fact that the item objectively suffers a disadvantage. Economic damage does not have to occur. Even a scratch, a malfunction or an optical impairment fulfills the elements of the offense.

Causality:

The impairment must have been caused by the perpetrator’s behavior. This means: Without his action, the condition of the item would not have been changed. Preparatory actions are also included if they enable the damage in the first place.

Objective Attribution:

The success of the act is objectively attributable if exactly the risk is realized that the legislator wants to prevent, namely the illegal impairment of someone else’s property. A success that is based on completely independent causes that have nothing to do with the perpetrator’s action would not be attributable.

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Distinction from other offences

The offense of property damage according to § 125 of the Criminal Code covers cases in which someone else’s property is intentionally destroyed, damaged, defaced or rendered unusable. The focus is on the impairment of the condition or function of an item. The injustice does not arise from the action as such, but from the encroachment on the property rights of others, which violates the integrity of the item. The decisive factor is therefore the deterioration of the condition of the item, even if the damage appears minor or can be rectified quickly.

• § 129 of the Criminal Code – Theft by burglary or with weapons: Theft by burglary or with weapons protects someone else’s property from the removal of an item. While § 125 of the Criminal Code aims at destruction or damage, § 129 of the Criminal Code concerns the removal of an item, i.e. the deprivation of possession. The distinction is made according to the object of attack:
  In the case of property damage, the value or condition of the item is impaired, but the owner generally remains the owner. In the case of theft, the entitled party loses the item itself. If damage and removal coincide, the offenses exist side by side, for example if a perpetrator breaks in, destroys the furnishings and then steals items.
• § 132 of the Criminal Code – Extraction of energy: The extraction of energy covers cases in which someone obtains electricity, gas or heat without authorization. What is protected is not an item, but the use of an energy source. In contrast to property damage, this does not depend on a violation of substance. It is sufficient that energy is taken without authorization. Property damage, on the other hand, only exists if a tangible item is damaged, destroyed or rendered unusable. Both offenses can coincide, for example if someone manipulates a line, thereby damaging a system and simultaneously diverting energy. In such situations, the offenses exist side by side because they protect different legal interests.

Concurrences:

Genuine Concurrence:

Genuine concurrence exists if further independent property or ownership offenses are added to the property damage, such as theft, trespassing, threatening behavior or burglary. The damage to an item remains an independent element of injustice and is not suppressed. If the perpetrator causes several violations of legal interests, these offenses regularly exist side by side.

Spurious Concurrence:

Suppression due to specificity only comes into consideration if another offense completely covers the entire element of injustice of the property damage. This is rarely the case, but can become relevant in the case of qualified property offenses, the focus of which is expressly on destruction or rendering unusable. Conversely, § 125 of the Criminal Code itself unfolds specificity if only the deterioration of the condition of the item is in the foreground.

Multiple Offenses:

Multiple offenses exist if several property damages are committed independently, for example if different items are damaged or temporally separate interventions are carried out. Each intentional damage constitutes a separate act, provided that there is no natural unity of action.

Continued Action:

A single act can be assumed if repeated damage is directly related and follows a uniform intent, such as the continuous destruction of individual parts of the same item within a uniform sequence of events. The act ends as soon as no further interventions occur or the perpetrator abandons his intent.

Burden of proof and evaluation of evidence

Public Prosecutor’s Office:

The public prosecutor’s office must prove that the accused destroyed, damaged, defaced or rendered unusable someone else’s property. The decisive factor is the proof of an actual intervention in the physical substance or functionality of the item. It is not about evaluations of the severity of the damage, but about the objective circumstance that the item has been impaired in its condition or usability.

It must be proven, in particular, that

• a property damage act was actually committed,
• the item was someone else’s, i.e. not exclusively owned by the accused,
• an objective impairment of the substance, functionality or external appearance exists,
• the damage or rendering unusable is causally related to the behavior of the accused.

The public prosecutor’s office must also present whether the alleged damage is objectively ascertainable, for example through traces, witnesses or technical reports.

Court:

The court examines all evidence in the overall context and assesses whether, according to objective standards, an impairment of the item has occurred. The focus is on the question of whether the item was actually damaged or rendered unusable and whether the intervention can be attributed to the accused.

In doing so, the court particularly considers:

• Type and extent of the damage,
• Condition of the item before and after the intervention,
• comprehensible technical or optical changes,
• Witness statements on the course of events and the involvement of the accused,
• Expert opinions or documentations that objectively prove the damage,
• whether a reasonable average person would regard the change as an impairment of the value or function of the item.

The court clearly distinguishes between mere trivialities, usual signs of wear and tear or changes without intervention character, which do not constitute a property damage within the meaning of the offense.

Accused Person:

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

• whether damage actually occurred,
• whether the item was already pre-existing or pre-damaged,
• whether the behavior has caused no impairment of substance or function,
• Contradictions or missing evidence in the presentation of the damage,
• alternative causes that could also plausibly explain the damage.

They can also demonstrate that certain measures were mere preparatory actions, nursing assistance without the character of an intervention, or occurred with the consent of the affected person.

Typical Assessment

In practice, the following evidence is particularly important in the case of § 125 of the Criminal Code:

• Photos or videos of the damage, preferably before-after comparison,
• Expert opinions on cause, damage and repair costs,
• Witness statements on the course of the crime and the condition of the item,
• Repair invoices, cost estimates or technical documentations,
• Communication records from which motive, conflicts or processes can be seen,
• Chronologies that show when the damage occurred and who had access to the item.

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Practical example

• Damage with presumed consent: The perpetrator changes or damages someone else’s property, although there is no clear consent from the entitled party. He mistakenly assumes that he is allowed to change or “improve” the item, although the owner was neither asked nor has previously given express permission. The entitled party initially tolerates the action because he assumes that the perpetrator is only checking the item or carrying out a harmless preparatory action. In fact, however, the perpetrator is already making an impairment of substance or function. The lack of consent leads to a clear violation of the property rights of others.
• Damage due to a falsely assumed dangerous situation: Over a certain period of time, the perpetrator repeatedly assumes that the immediate manipulation or alteration of someone else’s property is absolutely necessary in order to avert an alleged danger. He repeatedly intervenes in the object, although objectively there is no emergency and the situation would have allowed a consultation with the owner. The entitled party cannot make an independent decision about his property because the interventions have already taken place. Despite existing indications that there is no immediate danger and no interventions are necessary, the perpetrator adheres to this assumption and makes further changes or damage without permission.

These examples show that property damage pursuant to § 125 of the Criminal Code exists if someone intervenes in the substance, functionality or external appearance of someone else’s property without the consent of the entitled party and thereby impairs its condition or usability.

subjective elements of the offence

The subjective element of property damage according to § 125 of the Criminal Code requires intent. The perpetrator must know that he is damaging, destroying, defacing or rendering unusable someone else’s property and that this intervention is objectively suitable to impair the value or usability. At the same time, he must at least tacitly accept that the entitled party does not consent and the action interferes with his property rights.

The perpetrator must therefore understand that his behavior in the overall picture constitutes a targeted intervention in someone else’s property and is typically suitable to impair its condition or function. The decisive factor is that the damage is caused consciously and intentionally; mere negligence is not sufficient.

There is no subjective element if the perpetrator seriously believes that he is entitled to change or treat the item, that the intervention is desired by the entitled party or that the action is objectively necessary to avert danger. Anyone who assumes that they are acting lawfully or mistakenly assumes consent does not meet the requirements of § 125 of the Criminal Code.

Ultimately, anyone who knows and consciously aims to worsen the condition of someone else’s property or impair its usability and thereby interferes with the property rights of the entitled party acts intentionally.

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Culpability and mistakes

Mistake of prohibition:

A mistake of prohibition only excuses if it was unavoidable. Anyone who engages in conduct that recognizably interferes with the rights of others cannot claim that they did not recognize the illegality. Everyone is obliged to inform themselves about the legal limits of their actions. Mere ignorance or a reckless error does not absolve one of responsibility.

Principle of culpability:

Only those who act culpably are punishable. Intentional offenses require that the perpetrator recognizes the essential events and at least accepts them as a possibility. If this intent is lacking, for example, because the perpetrator mistakenly assumes that their behavior is permitted or is voluntarily supported, at most negligence exists. This is not sufficient for intentional offenses.

Incapacity to be held accountable:

No guilt is attributed to someone who, at the time of the offense, was unable to recognize the injustice of their actions or to act in accordance with this insight due to a severe mental disorder, a pathological mental impairment, or a significant inability to control their actions. In case of corresponding doubts, a psychiatric assessment will be obtained.

Excusable state of necessity:

An excusable state of necessity may exist if the perpetrator acts in an extreme situation of duress in order to avert an acute danger to their own life or the lives of others. The behavior remains unlawful but can have a mitigating or excusing effect if there was no other way out.

Putative self-defense:

Anyone who mistakenly believes that they are entitled to an act of defense acts without intent if the error was serious and comprehensible. Such an error can reduce or exclude guilt. However, if a breach of duty of care remains, a negligent or mitigating assessment comes into consideration, but not a justification.

Extinction of punishment and diversion

Diversion:

A diversion is generally possible in the case of property damage. The offense protects the property and the undamaged condition of someone else’s property, and the weight of the guilt depends above all on the nature and extent of the damage, the circumstances of the act and the personal responsibility of the perpetrator. In cases of minor damage, clear insight and lack of prior convictions, a diversionary settlement is regularly examined in practice.

However, the clearer a planned, conscious or repeated damaging of someone else’s property is recognizable or the more serious the damage that has occurred, the more unlikely a diversion becomes.

Diversion may be considered if

• the guilt is low,
• the property damage is only slight or minor,
• no or only insignificant consequential effects have occurred,
• there is no systematic or continued behavior,
• the facts of the case 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 settlement. A diversion leads to no conviction and no criminal record entry.

Exclusion of Diversion:

Diversion is excluded if

• a significant or sustained impairment of the property has occurred,
• the damage was inflicted deliberately, purposefully, or systematically,
• multiple objects were affected or repeated damage occurred,
• there is systematic or prolonged conduct,
• particularly vulnerable items or facilities were affected,
• the damage had significant consequences, such as high repair costs or considerable economic disadvantages,
• or the overall conduct constitutes a serious violation of property rights.

Only with clearly minimal culpability and immediate insight can it be examined whether an exceptional diversionary procedure is permissible. In practice, diversion remains possible for property damage, but it is rare in systematic or serious cases.

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Sentencing and consequences

The court determines the penalty based on the extent of the damage, the nature, duration, and intensity of the interference with the property, as well as how severely the destruction, damage, disfigurement, or rendering unusable has impaired the value or functionality of the affected property. Decisive factors are whether the perpetrator acted repeatedly, purposefully, or systematically over a longer period and whether the conduct caused a noticeable impairment of property.

Aggravating Factors Exist in Particular If

• the damage was continued over a longer period,
• there was systematic or particularly persistent conduct,
• significant property damage occurred,
• particularly vulnerable or valuable items were affected,
• damage continued despite clear warnings or requests to cease,
• a special breach of trust occurred, for example, in cases of damage within a close or dependent relationship,
• or relevant prior convictions exist.

Mitigating Factors Include

• Impeccability,
• a full confession and recognizable insight,
• an immediate cessation of the damaging conduct,
• 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

Property damage is punishable by imprisonment for up to six months or a fine of up to 360 daily rates. This penalty framework constitutes the legal upper limit and applies to every case in which another person’s property is destroyed, damaged, disfigured, or rendered unusable. The law does not provide for a higher penalty.

A later apology, cessation of damage, or efforts at compensation do not alter the legal penalty framework; such circumstances exclusively affect the sentencing.

Criminal liability is precluded if a ground for justification applies, such as self-defense or the lawful exercise of a right of possession. If such a ground for exclusion exists, it does not abolish the penalty framework but prevents the offense from being constituted.

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 property damage, a fine is particularly considered if the damage is minor, easily repairable, or without significant economic harm, and the conduct is at the lower end of criminality. Contrite behavior, immediate compensation, or prompt damage repair can also suggest the imposition of a fine.

Imprisonment and (partially) suspended sentence

Section 37 of the Criminal Code: If the statutory penalty extends up to five years, the court may impose a fine instead of a short prison sentence of no more than one year. This option also exists for offenses whose basic elements provide for a fine or imprisonment of up to one year.
In cases of property damage, Section 37 of the Criminal Code is primarily applied when the damage is minor, the incident is situational, and the conduct is not previously burdened by relevant offenses. The provision is applied more cautiously if the damage was deliberate, malicious, repeated, or associated with a significant economic disadvantage for the injured party.

Section 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 option also exists for property damage, whose penalty framework extends up to six months.
Conditional suspension is granted more cautiously if aggravating circumstances exist, particularly malice, vandalism, accumulation of offenses, or high material damage. It is realistic primarily when the damage is quickly remedied, the perpetrator is contrite, and the conduct is of subordinate importance.

Section 43a of the Criminal Code: Partial conditional suspension allows a combination of an unconditional and a conditionally suspended part of the sentence. It is possible for sentences exceeding six months and up to two years.
Since the penalty framework for property damage extends only up to six months, partial conditional suspension is in practice only considered for additional penalties or in the context of combining multiple offenses. If only property damage is involved, Section 43a of the Criminal Code is regularly not applied.

Sections 50 to 52 of the Criminal Code: The court may additionally issue directives and order probation assistance. Considerations include compensation for damages, contact bans with victims, alcohol abstinence or behavioral training programs, if they contribute to conflict avoidance. The focus is on reparation of the damage and ensuring that the perpetrator refrains from similar actions in the future.

Jurisdiction of the courts

Subject-matter Jurisdiction

For property damage, due to the low penalty, the District Court is generally competent. Offenses with a possible prison sentence of up to six months or a fine of a comparable amount fall, according to legal regulations, under the first-instance jurisdiction of the District Courts.

Since property damage knows no severe qualifications and the penalty framework is not exceeded, there is no reason to involve the Regional Court as a single judge. A lay judge court is also not considered, as a significantly higher penalty would have to be provided for this.

A jury court is ruled out, as no particularly severe penalties are available in this area of offense.

Local Jurisdiction

The court at the place of damage is competent. The decisive factor is where the property was actually destroyed, damaged, or rendered unusable.

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 an appellate court on guilt, penalty, and costs.

Decisions of the Regional Court can subsequently be challenged by appeal for nullity or a further appeal before the Supreme Court, provided that the legal requirements are met.

Civil claims in criminal proceedings

In cases of property damage, the injured party, as a private claimant, can assert their civil law claims directly in criminal proceedings. Since the offense constitutes an interference with property or the usability of an item, the claims particularly concern repair costs, replacement costs, diminution in value, cleaning costs, loss of use, as well as other pecuniary damages caused by the damage. Depending on the case, consequential costs may also be claimed, such as for replacement procurement or additional organizational expenses.

The private claimant’s joinder suspends the statute of limitations for all asserted claims as long as the criminal proceedings are pending. Only after a final conclusion do the limitation periods continue to run, to the extent that the damage was not fully awarded.

A voluntary compensation, such as covering repair costs, full damage settlement, or a credible effort to compensate, can have a mitigating effect on the sentence, provided it is timely and complete.

However, if the perpetrator acted systematically, repeatedly, or with considerable damage, or if particularly aggravating circumstances exist, later compensation for damages usually loses a large part of its mitigating effect. In such constellations, subsequent compensation only partially offsets the wrongfulness of the act.

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Overview of criminal proceedings

Commencement of Investigation

Criminal proceedings require a concrete suspicion, from which point a person is considered a suspect and can exercise all suspect rights. Since property damage is an ex officio offense, the police and public prosecutor initiate proceedings ex officio as soon as there is a corresponding suspicion. A special declaration from 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

Property damage under Section 125 of the Criminal Code concerns interferences with another’s property, the legal assessment of which heavily depends on the specific course of events, intent, type of damage, and actual harm. Small differences in the events, in securing evidence, or in the question of whether destruction, damage, or merely temporary disfigurement is present, can decisively influence the proceedings.

Early legal assistance ensures that evidence is fully secured, damage assessments are correctly documented, and exculpatory circumstances are properly classified. Only a precise analysis reveals whether criminal property damage actually exists or whether there are significant doubts regarding intent, damage, or contribution to the offense.

Our law firm

• examines whether a statutory damage, destruction, or rendering unusable exists and whether the alleged damage is legally relevant.
• analyzes whether intent is provable, whether alternative courses of events are conceivable, and whether gaps in evidence or contradictions exist.
• protects by ensuring that no one-sided representations are adopted and that evidence and witness statements are correctly evaluated.
• develops a clear defense or claim strategy that fully and legally precisely presents the actual course of events.

As legal representation specializing in criminal law, we ensure that the accusation of property damage is thoroughly, objectively, and legally soundly examined, so that the proceedings are conducted on a reliable factual basis.

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FAQ – Frequently Asked Questions

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