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Active repentance under section 167 StGB: restitution as a ground for setting aside punishability in property offences

Active repentance under section 167 StGB at a glance: requirements of full and voluntary restitution before knowledge of prosecution acts and distinction from.

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3 July 2026 · Mag. Christopher Angerer, Rechtsanwalt

Active repentance under section 167 StGB is a personal ground for setting aside criminal liability. Anyone who fully and voluntarily makes good the damage in the case of certain property offences before the authorities learn of the act becomes exempt from punishment. This rule is one of the most important procedural decision points in Austrian criminal law.

This post explains from a legal perspective the requirements and effects of active repentance and its distinction from diversion under section 198 StPO and from a mere mitigating factor. It provides general information and does not replace advice in an individual case.

What is your starting situation?

Four situations, one clear next step.

Whether the damage has not yet been discovered, a complaint has been filed, only partial restitution is possible or the scope is unclear: choose the constellation that matches your situation.

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01 Question 1

What is your starting situation regarding active repentance?

Active repentance requires full restitution before certain procedural steps. Choose the constellation that matches your situation.

All paths at a glance

Overview of all answers.

01

Before discovery: best moment for active repentance.

As long as neither the injured party nor the authorities know of the offence, active repentance can unfold its most favourable effect. Section 167 StGB requires full restitution, made voluntarily and before knowledge of prosecution acts. From a legal perspective the structured preparation of the restitution is decisive so that the legal effect can later be proven.

Restitution must cover the entire damage. This includes accompanying damages and consequential costs in so far as they stem from the offence. Careful calculation secures the lifting of punishability.

In depth: requirements of active repentance →
02

After complaint: lifting of punishability no longer possible, examine diversion and mitigation.

Once prosecution acts have been taken, active repentance as a ground for setting aside punishability is no longer possible. Restitution remains effective however as a mitigating factor and as a requirement of a diversionary disposal under section 198 StPO. From a legal perspective the goal is now to translate restitution into a favourable procedural outcome.

A carefully prepared statement avoids misunderstandings and makes clear that the payment serves to settle the damage and does not amount to a full acknowledgement of the accusation.

In depth: distinction from diversion and mitigation →
03

Only partial restitution: keep completeness as a hurdle in view.

Merely partial restitution does not satisfy section 167 StGB. Full restitution is required. From a legal perspective it must therefore first be examined how full performance can be achieved, for example through third party financing, the provision of security or contractual solutions with the injured party.

If full restitution cannot be achieved, the partial payment remains effective as a mitigating factor and as a building block for diversion. It should still be prepared in a structured way.

In depth: requirements of active repentance →
04

Clarify scope: section 167 StGB does not apply to every offence.

Section 167 StGB is tailored to certain property offences, including theft, embezzlement, fraud and breach of trust. For other offences active repentance under this provision is not applicable. From a legal perspective the first step is therefore to check which accusation is concretely on the table and whether section 167 StGB applies at all.

Even where section 167 StGB does not apply, restitution can remain relevant as a general mitigating factor or as a basis for diversion. The classification is therefore an essential building block of the defence.

In depth: scope of section 167 StGB →

Scope of section 167 StGB

Section 167 StGB is tailored to a circle of property offences. These include in particular theft, embezzlement, misappropriation, permanent deprivation of property, removal, fraud, breach of trust, counterfeiting in certain constellations as well as further property offences. For other offences active repentance under this provision is not applicable.

The list in section 167 StGB is exhaustive. An analogous application is in principle not available. From a legal perspective the precise legal classification of the accusation is therefore the first step.

Even within the scope the reach is differentiated. For some offences section 167 StGB applies only under additional conditions. A careful examination prevents that a supposedly liability lifting restitution actually does not lift liability.

Requirements of active repentance

Active repentance requires three elements: full restitution, voluntariness of the performance and performance before knowledge of prosecution acts. Only the coincidence of all three elements brings about the lifting of punishability.

Full restitution means that the entire damage arising from the offence is compensated. Mere partial performance is not sufficient. As a rule consequential damages are also covered insofar as they can be attributed to the offence.

Voluntariness is absent where performance is made only under the impression of an impending prosecution. Anyone who only pays after the authority has taken up investigations no longer acts voluntarily within the meaning of section 167 StGB. From a legal perspective the timing of restitution is therefore a central criterion.

Effect as a ground for setting aside punishability

Where the requirements of section 167 StGB are met, the act is exempt from punishment. It is a personal ground for setting aside punishability. This means that punishability falls away for the repentant perpetrator while co perpetrators may still remain punishable.

The effect arises with the performance of restitution provided that the further requirements are fulfilled. Proceedings are then discontinued in so far as they have already begun, or are not initiated at all if the authority establishes the restitution in the course of its first examination.

From a legal perspective the clean documentation of restitution is the most important means of proof. It secures the application of section 167 StGB and avoids later evidentiary difficulties.

Distinction from diversion and mitigating factor

Active repentance must not be confused with diversion under section 198 StPO. Diversion is a procedural alternative to criminal proceedings and also applies where the requirements of section 167 StGB are not met, in particular where restitution is made only after knowledge of prosecution acts.

Restitution also remains effective as a mere mitigating factor. It takes effect in the framework of sentencing under the general rules of the StGB and can pave the way to a conditional sentence or a lower sentence.

From a legal perspective it is important to distinguish the effects clearly. What was meant as active repentance can, depending on the moment, lead either to the lifting of liability, to diversion or to mitigation.

Timing is decisive. Active repentance is only effective before knowledge of prosecution acts. Anyone who makes the damage good in full early enough can remove punishability. Later restitution remains available as a building block for diversion and a mitigating factor without lifting punishability.

Frequently asked questions

What you need to know about active repentance.

What does active repentance achieve? +

It is a personal ground for setting aside punishability. Where its requirements are met, the act is exempt from punishment for the repentant perpetrator. Co perpetrators cannot profit from it if they do not themselves make restitution.

Which offences fall under section 167 StGB? +

Covered in particular are theft, embezzlement, fraud and breach of trust as well as further property offences. The list in section 167 StGB is exhaustive and an analogous application is in principle not available.

Is partial restitution sufficient? +

No. Section 167 StGB requires full restitution. Partial performance can however remain effective as a mitigating factor or as a building block for diversion.

By when must restitution take place? +

It must occur before the perpetrator knows of prosecution acts. Once the authority has taken up investigations a lifting of liability under section 167 StGB is no longer available.

What is the difference from diversion? +

Active repentance lifts punishability, diversion is a procedural alternative. Diversion can also apply where the requirements of section 167 StGB are not met, in particular because restitution is made only after knowledge.

Must restitution be voluntary? +

Yes. Voluntariness is an independent requirement. A payment under the impression of an already taken up prosecution does not count as voluntary within the meaning of section 167 StGB.

Related topics

You might also be interested in

Diversion under section 198 StPO

How diversion works and when it applies.

Private party from the defendant's perspective

Restitution in adhesion proceedings and its effect.

Topics
active repentancesection 167 StGBrestitutionlifting of punishabilitydiversionproperty offences

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