Incitement and aiding under section 12 StGB: participation in an offence without executing it

Under section 12 StGB a punishable act is committed not only by the direct perpetrator but also by anyone who instigates another to carry it out or otherwise contributes to its execution. The statute thus treats all participants as perpetrators and knows no reduced penalty range for instigators or accessories.

The three forms are to be distinguished functionally. The direct perpetrator carries out the offence personally or, as co-perpetrator in a division of labour, makes an essential contribution. The instigator brings about the decision to commit the offence in another person. The accessory otherwise furthers the offence of another.

In practice this means that criminal responsibility does not depend on whether someone carried out the offence with their own hands. What matters is whether the contribution satisfies one of the three forms and whether it was made with intent.

An instigator is anyone who intentionally causes another to commit a punishable act. To instigate means to bring about the decision to commit the offence in the executing person. This can happen through words, pressure, promises or threats, but also through conduct conveying meaning.

Whoever merely reinforces a person already resolved upon the act is not an instigator. A bare confirmation of the existing decision can at most be classified as a psychological contribution. From a legal perspective the chronological and substantive sequence is therefore decisive.

Attempted instigation is in principle not punishable under Austrian law. Liability exists only in the cases expressly regulated, in particular under section 15 StGB for felonies where the attempt reaches the stage of an act of execution.

An accessory is anyone who otherwise contributes to the execution of a punishable act. The contribution can be made in any way, physically or mentally. Classic examples are handing over a tool, supplying information about the target or oiling door locks before a burglary.

Psychological contributions are also covered. Whoever encourages an already resolved perpetrator or stands by them can be an accessory if the offence is actually furthered thereby. Mere presence without a supporting effect is not enough.

From a legal perspective the boundary with neutral everyday acts is central. Whoever sells a knife to an acquaintance without knowing of the planned offence does not contribute within the meaning of section 12 StGB. The intent regarding the specifically furthered offence is required.

Attempted aiding is as a rule not punishable, because the aiding offence acquires its legal significance only with the execution of the main offence. If the main offence does not reach the attempt stage, the link for an aiding liability is missing.

Co-perpetrators are persons who carry out an offence consensually in a division of labour. Each co-perpetrator is a direct perpetrator and is treated as if they had committed the whole offence themselves. The boundary with the accessory is not always easy to draw in practice.

Decisive is whether the contribution appears as an essential part of the execution and whether the person co-shapes the course of the offence. Whoever opens the safe while another keeps watch is a co-perpetrator. Whoever only supplies information is an accessory.

From a legal perspective the classification is irrelevant for the sentence but affects the issues of proof. For co-perpetration the prosecution must prove an agreement and the execution itself; for aiding, the furthering act with intent regarding the main offence suffices.