Unlawful appropriation (Sec 134 StGB): Elements of the offense
The offense of misappropriation (Section 134 of the Austrian Criminal Code) is committed by anyone who, with the intention of obtaining an unlawful material benefit for himself or a third party, uses for his own use or for the use of a third party property belonging to another person which he has found or of which he has come into possession by mistake or by any other method not dependent on his action. Similarly, a person commits unlawful appropriation if he first takes the property into his custody without the intention of appropriating it and then decides to obtain the property.
In principle, a distinction can be made between unlawful appropriation of found property (para 1 first case), unlawful appropriation by opportunity (para 1 second and third case) and subsequent unlawful appropriation (para 2). The main distinction here is the circumstances in which the property of another comes into the custody of the perpetrator.
Object of the crime
The object of the offense of unlawful appropriation is an economically alien good. It is controversial whether this can only be physical goods. Case law interprets the concept of goods more broadly and also considers bank money to be a suitable object of the offense.
CUnlike misappropriation (Sec 133 StGB), in which the object of the crime was entrusted to the offender, in unlawful appropriation the object of the crime comes into the offender’s possession in some other way (found, sent by mistake, etc.). Unlawful appropriation of found property can be committed only against property that is not in custody.
Criminal act
The offense of unlawful appropriation under Section 134 of the Austrian Criminal Code consists, as in the case of misappropriation, in the appropriation of the property for oneself or for a third party. Appropriation occurs when the perpetrator acts as if he were the legal owner, e.g. by keeping the property, borrowing it or otherwise acting as if he were the owner, although he is not the legal owner. To commit unlawful appropriation, the perpetrator must act with the intention of enrichment.
Examples
- A customer receives a delivery of goods that he did not order. The delivery was sent by mistake. If the customer embezzles the goods, he can be prosecuted according to Sec 134 para 1 StGB (opportunity unlawful appropriation).
- An entrepreneur sells goods online in exchange of prepayment. A customer orders goods and pays in advance, but the entrepreneur is subsequently permanently unable to deliver the ordered goods to the customer. Nevertheless, the trader decides not to repay the amount received to the customer, but to keep it. The trader may be liable to prosecution for unlawful appropriation (Sec 134 para 2 StGB).
Threat of punishment and possible suspension of sentence through active repentance
The specific penalty for unlawful appropriation depends on the amount of loss. According to Sec 134 para 1 StGB, the basic penalty is imprisonment for up to six months or a fine of up to 360 daily rates. However, if the value of the property exceeds EUR 5.000, the penalty is up to two years’ imprisonment, and if the value exceeds EUR 300.000, the penalty is between six months and five years’ imprisonment (Sec 134 Para 3 Austrian Criminal Code).
In the case of unlawful appropriation, the grounds of active repentance under Sec 167 StGB can be considered. If the unlawfully appropriated property is completely and voluntarily returned to the owner or the previous possessor before the criminal prosecution authorities become aware of the crime, the criminal liability may be waived.
Criminal defense by a specialized lawyer in the event of allegations of unlawful appropriation
If you have committed the offense of unlawful appropriation, are aware of it or have already learned of criminal investigations against you, you should consult a criminal defense lawyer as soon as possible. A lawyer who specializes in criminal law will check whether it is possible to have your sentence lifted through active repentance and will support you in deciding whether and how the damage caused can be made good.
Your lawyer will also accompany you when you are interrogated by criminal prosecution authorities, ensure that your rights are protected and help you to avoid making ill-considered statements that could later lead to adverse consequences. Taking legal advice at an early stage can help to minimize the impact of the proceedings and develop a focused defense strategy that best protects the rights of the accused.
Victim of unlawful appropriation? Your legal options at a glance
If you or your company have been harmed by unlawful appropriation, you should consider filing a complaint. Any claims for damages can be asserted in the course of a private party connection. It is also possible to assert civil law claims in the course of a lawsuit before the competent civil court.
