Vandalism and Theft by Juveniles: What Parents Need to Know in Austria

The trigger is usually a phone call from the police: your child was stopped by the store detective at the drugstore, was caught after a spraying tour at a railway underpass, or was identified after a weekend incident in a clubhouse. Sometimes the first information also comes via the school management, sometimes via the property management or the child and youth services provider. The emotional strain is considerable, particularly when the charge is raised for the first time and parents are uncertain how far-reaching the criminal-law consequences may be.

From a defence perspective, three things matter most in the first hours. First: your child does not have to make a statement on the substance to the police. Provide personal details, yes. Remain silent on the substance until defence counsel has had file access. Anyone who tells “the whole story” in the heat of the moment, possibly including co-defendants and contributions, creates accusations that can hardly be corrected later. Second: for felony charges, in particular § 129 StGB burglary, § 128 para. 2 StGB or § 126 para. 2 StGB beyond the 300,000-euro threshold, the involvement of defence counsel is mandatory (§ 39 para. 1 no. 1 JGG); this counsel cannot be waived. Third: even without a felony charge, the trusted person under § 37 JGG is to be brought in, typically a parent, a teacher, or a representative of child and youth services; the selection is a strictly personal right of the juvenile.

A second reality: in vandalism and theft cases, what is at stake is not primarily a custodial sentence, but an out-of-court resolution. In practice, a large share of these proceedings is resolved via § 4 para. 2 no. 2 JGG (termination on the ground that the conduct is not punishable), § 6 JGG (abstention from prosecution), §§ 7, 8 JGG (diversion with victim-offender mediation or community service), or in the case of § 141 StGB by withdrawal of the application by the store. An unconditional custodial sentence would be highly atypical for a first-time offender in the vandalism/theft area. That does not change the diligence with which defence counsel must act in the first weeks, but it removes from the constellation the character of an existential worst-case scenario.

What parents should do concretely in the first 72 hours: call defence counsel before signing or recording anything themselves. Keep seizure orders and child-and-youth-services correspondence on file, do not actively answer them. In shoplifting cases, contact the store management, often the withdrawal of the application opens up already on the first working day. In school-vandalism cases, inform the school factually, without preliminary admissions. The further special rules that the Juvenile Justice Act provides for this entire proceeding, from the right to silence through mandatory defence to the trusted person under § 37 JGG, are set out in detail in the overview article.

Six offences form the backbone of vandalism/theft defence in juvenile criminal law. They differ by offence type (damage, taking, breaking and entering), by value thresholds (5,000 and 300,000 euros), by classification as offence (Vergehen) or felony (Verbrechen), and accordingly in the JGG tools that apply.

§ 125 StGB damage to property. A person who destroys, damages, defaces or renders another person’s property unusable commits an offence (Vergehen) with a sentencing threat of up to six months’ imprisonment or 360 day-fines. The basic provision applies for damage of up to 5,000 euros and where no qualified object is affected. In juvenile criminal law, § 125 StGB is the track in which § 4 para. 2 no. 2 JGG most often applies, an offence (Vergehen), often without serious culpability, often with first-time offenders.

§ 126 StGB aggravated damage to property. Para. 1 raises § 125 to an offence (Vergehen) with a sentencing threat of up to two years, as soon as the damage exceeds 5,000 euros, or a qualified object is affected (a public facility of essential importance, a transport or supply facility, religious or worship property, an item of essential public services, or a manner of commission endangering the public). Para. 2 raises damage to property to a felony with a sentencing range of 6 months to 5 years, as soon as the damage exceeds 300,000 euros. School vandalism on public facilities, fire or explosive attacks on religious facilities, or the wilful destruction of means of transport are the typical constellations in which § 126 para. 1 applies.

§ 127 StGB theft. A person who takes another person’s movable property with the intent of unlawfully enriching himself or a third party commits an offence (Vergehen) with a sentencing threat of up to six months’ imprisonment or 360 day-fines. Defence lever on the intent side: a dare-or-mockery taking without intent to enrich (taking-and-discarding) is objectively not theft, at most permanent deprivation of property (§ 135 StGB) or damage to property. In trivial cases, the lex specialis § 141 StGB is to be examined.

§ 128 StGB aggravated theft. Para. 1 raises § 127 to an offence (Vergehen) with a sentencing threat of up to three years if the value exceeds 5,000 euros or a qualified object is affected (religious or collection property, a helpless victim, an item particularly secured against theft by overcoming the security). Para. 2 raises theft to a felony with a sentencing range of 1 to 10 years as soon as the value exceeds 300,000 euros. In juvenile criminal law, para. 1, by virtue of its classification as an offence (Vergehen), remains within the § 4 para. 2 no. 2 JGG examination; para. 2 falls outside it.

§ 129 StGB theft by burglary or with weapons. A felony with a sentencing range of 6 months to 5 years, qualified by the modus of the act, not by value. Covered are breaking in or climbing into dwellings, buildings or means of transport, breaking open containers, the use of unlawfully obtained keys or unspecified tools, and carrying a weapon. Attempted burglary is also covered (§ 15 StGB in connection with § 129).

§ 141 StGB petty theft (Entwendung). Lex specialis at “minor value” (practice threshold approx. 100 euros) and one of the modalities of necessity, rashness, or “satisfaction of a craving” (“Befriedigung eines Gelüstes”). The sentencing threat falls to up to one month’s imprisonment or 60 day-fines. Important in the juvenile context: prosecuted only on application, the injured person must apply for prosecution. In trivial-case practice, withdrawal of the application by the store is the most frequent form of resolution. More on the defence against property crimes in general on our topic page.

Four anonymised vignettes that show typical defence levers, from school vandalism through classic shoplifting to a weekend burglary attempt and a spraying tour. The constellations cover the breadth of § 4 para. 2 no. 2 JGG, the withdrawal of the application, and diversion even for felonies.

A, School vandalism in a group (locker row, toilet walls, rubbish bin). Four 14- and 15-year-olds, in frustration after the end of lessons, kick in a row of lockers, smear the toilet walls with permanent marker, and knock over a rubbish bin. The school assesses the damage at approximately 1,800 euros and files a criminal complaint. Engaged: § 125 StGB (damage below 5,000 euros, no evidently qualified object, for a public school, § 126 para. 1 no. 4 as an “essential public services” object would be debatable). Defence: § 4 para. 2 no. 2 JGG lever for the under-16-year-olds (an offence/Vergehen, no serious culpability, first-time offenders, juvenile-typical frustration affect), active restitution with a per-head share and a joint cleaning operation at the weekend, victim-offender mediation at NEUSTART, differentiation of contributions in the group under § 12 StGB. Likely outcome for first-time offenders under 16 with restitution: termination under § 4 para. 2 no. 2 JGG in connection with § 190 no. 1 StPO. For 16- and 17-year-olds, diversion with victim-offender mediation and community service.

B, Shoplifting first-time offender (drugstore, value approx. 30 euros). A 15-year-old takes two lipsticks and an eyeshadow worth approximately 30 euros from the shelf at the drugstore and tries to leave the till area without paying. The detective stops her, the store files a criminal complaint. Engaged: § 141 StGB petty theft as a lex specialis (minor value, modality “satisfaction of a craving”, the youth-relevant modality par excellence). § 141 is prosecuted only on application. Defence: two levers in parallel, first, obtain withdrawal of the application by the store (early contact with store management, return of the goods, payment of the processing fee); second, in case the application is maintained, § 4 para. 2 no. 2 JGG (first-time offender under 16, an offence/Vergehen). Likely outcome: withdrawal of the application → termination under § 190 no. 2 StPO. If the application is maintained: termination under § 4 para. 2 no. 2 JGG. With a 16- or 17-year-old defendant, abstention from prosecution or diversion with victim-offender mediation.

C, Burglary attempt at a clubhouse on the weekend. Three 16-year-olds climb together through a tilted window into the clubhouse of a sports club on a Sunday evening, search lockers, and take 80 euros in cash and two Bluetooth speakers (worth approximately 200 euros). The police are alerted by a neighbour, and the three are caught nearby. Engaged: § 129 StGB burglary (felony, 6 months to 5 years’ imprisonment), § 127 StGB as the basic offence concurrently engaged, § 12 StGB doctrine of participation. Defence: mandatory defence representation from the outset under § 39 para. 1 no. 1 JGG; precise documentation of the modus of the act (a tilted window, clearly climbing in; but is the contribution of the three differentiated?), diversion even for the felony (§§ 7, 8 JGG without an upper sentencing limit) with full restitution, cash returned, speakers returned, repair costs for window and locker compensated, victim-offender mediation with the club at NEUSTART, community service in the club itself (cleaning operations, training assistance). Likely outcome for first-time offenders with active acceptance of responsibility: diversion with victim-offender mediation and community service. On refusal: a finding of guilt under reservation under § 13 JGG with probation services, or a conditionally suspended custodial sentence of a few months.

D, Graffiti / sprayer (railway underpass, house wall). A 17-year-old sprays tags and pieces over several weekends with two acquaintances at railway underpasses and on the outer wall of a private apartment building. Cleaning bills 4,200 euros (ÖBB) and 1,100 euros (property management). Engaged: § 125 StGB per act (damage at each spot below 5,000 euros), in the railway context § 126 para. 1 no. 1 StGB debatable; on real concurrence of multiple damages, the question of concurrence with § 126 para. 1 no. 5 (damage above 5,000 euros in a unit of subsumption). Defence: scrutinise the damage valuation critically, façade renovation regularly brings an increase in value (set-off of advantage); defence argues cleaning rather than renovation costs and real concurrence of multiple instances of § 125 rather than a unified § 126 para. 1 no. 5. Restitution via cleaning work in own labour and victim-offender mediation (NEUSTART) with ÖBB and the property management. § 4 para. 2 no. 2 JGG not applicable (over 16). Diversion with community service, cleaning of graffiti in the city area as a condition is a good fit; the 120-hour limit is to be observed. Likely outcome: with acceptance of responsibility, diversion with victim-offender mediation and community service. On refusal: a finding of guilt under reservation (§ 13 JGG).

Vandalism / theft proceedings against juveniles follow a manageable strategic grid. Five axes, sorted by depth of intervention, mark the levers we go through in every case from a defence perspective.

Axis 1, § 4 para. 2 no. 2 JGG: non-punishability for offences (Vergehen) without serious culpability. The most important lever for under-16-year-olds. Requirements: act before completion of the 16th year of life, an offence (Vergehen) (so not § 128 para. 2, not § 129), no serious culpability, no special grounds of application for punishability. The yardstick of “serious culpability” is the individual stage of development, and the wrong of the result is secondary, even damage of several thousand euros can remain without serious culpability where the act was spontaneous and not pre-planned. Approach: early written suggestion to the prosecution, application for termination on the ground that the conduct is not punishable under § 190 no. 1 StPO. Annexes: school or club confirmation of good conduct, child-and-youth-services statement on the family situation, documentation of restitution. Important: do not apply for diversion in parallel, where § 4 para. 2 no. 2 JGG applies, the proceeding is to be terminated on the ground that the conduct is not punishable, not resolved via diversion with acceptance of responsibility.

Axis 2, diversion without an upper sentencing limit (§§ 7, 8 JGG). Where § 4 para. 2 no. 2 JGG does not apply (over 16, or felony, or serious culpability affirmed), diversion is the standard outcome. In juvenile criminal law, unlike in adult criminal law with the 5-year threshold, there is no upper sentencing limit. Even § 128 para. 2 StGB (1 to 10 years) and § 129 StGB burglary are in principle open to diversion. Four diversion forms: victim-offender mediation (NEUSTART) where there is a clearly identified victim, community service with the juvenile-specific limits (max. 6 hours per day, 12 hours per week, 120 hours in total), probation with probation services and conditions, or a fine, the latter for juveniles only where the defendant has the means himself and his progress is not impaired. Parents must not pay the fine; otherwise the special-prevention effect is lost.

Axis 3, abstention from prosecution (§ 6 JGG) and withdrawal of the application under § 141 StGB. For trivial offences (Vergehen) without death and without further intervention need, the prosecution is to terminate prosecution, provided no special grounds of special or general prevention stand in the way. The classic lever for school-chat or trivial damage-to-property first-time incidents. Under § 141 StGB, the withdrawal of the application by the injured person is added, in shoplifting cases, this is often the fastest route to resolution where the store management cooperates (a ban from the premises + restitution + processing fee → withdrawal of the application → termination on the ground that the conduct is not subject to court prosecution under § 190 no. 2 StPO).

Axis 4, differentiation of contributions in group offences (§ 12 StGB in connection with § 39 JGG). Vandalism and theft are committed in groups disproportionately often, school cliques, sprayer crews, weekend dares. Who carried out which act is often described in blanket terms in the police report (“jointly”). Defence must clarify early: mere standing-by without a contribution is not co-perpetration under § 12 StGB, even where there is visible sympathy with the principal act. Statements of those involved are to be recorded with differentiation. Where there are three or more participants, the prosecution examines in practice whether a criminal organisation within the meaning of § 278 para. 2 StGB exists, the threshold is high; school cliques regularly do not meet it.

Axis 5, sentencing and stigmatisation protection under § 33 JGG. Where all other axes fail, what remains is the finding of guilt without sentence (§ 12 JGG, no prior conviction), the finding of guilt under reservation (§ 13 JGG, probation), and at the most extreme a conditionally suspended custodial sentence under § 5 no. 9 JGG in connection with § 43 StGB. These outcomes affect the criminal record differently, diversion and § 12 JGG create no entry, convictions are entered with the shortened JGG deletion periods. Notification of the school only takes place on a custodial sentence of more than six months (§ 33 para. 4 JGG), a threshold that is practically never reached in vandalism / theft first-time proceedings.

Special sentencing rules under § 5 JGG. Even where a sentence is imposed: in juvenile criminal law, the minimum falls away, the maximum is halved. For damage-amount-related fines (§ 5 no. 6 JGG), fines that follow value, benefit or damage are only to be imposed in so far as the juvenile’s progress is not endangered, for large damage amounts, a separate defence lever in sentencing. Conditional suspension of sentence is also possible for higher sentences (§ 5 no. 9 JGG).

Two thresholds decide in property-crime law whether the matter is an offence (Vergehen) or a felony, and accordingly between mandatory defence, sentencing range and JGG tools: 5,000 euros raises § 125 to § 126 para. 1 and § 127 to § 128 para. 1; 300,000 euros raises both offences to felony level (§ 126 para. 2, § 128 para. 2). These jumps work in both directions. Damage of 5,200 euros is the pre-stage to a felony, damage of 4,800 euros is not, the question how the damage is calculated is therefore a central defence lever in the preliminary proceeding.

Repair costs vs. present-day value. The civil-law concept of damage (§ 1323 ABGB) and the criminal-law concept of property do not always run in parallel. For a twelve-year-old apartment building with graffiti, façade renovation may cost 4,000 euros, but the property loss of the owner is, according to the prevailing view, less than the renovation amount in civil-law terms (set-off of advantage from a new façade). In this constellation, defence counsel argues a present-day-value loss instead of a repair-cost loss, and, with its own expert opinion, can prevent the subsumption jump at the 5,000-euro threshold. For larger damage amounts (car break-in, burglary at a business premises), a defence-side expert opinion is often worth its fee.

Active restitution as a precondition for diversion. In juvenile criminal law, restitution is the central bridge to diversion, and the most important mitigating factor for sentencing (§ 34 para. 1 no. 14 StGB) where it comes to indictment. Important: the civil-law obligation to make restitution, particularly within the framework of victim-offender mediation, requires the consent of the legal representative and, where applicable, guardianship-court approval under § 167 para. 3 ABGB for property matters outside ordinary economic operations. Defence practice: bring parents in early, obtain a written declaration of consent, initiate guardianship-court approval where necessary, otherwise the victim-offender mediation collapses later under civil law.

Victim-offender mediation at NEUSTART. Victim-offender mediation is one of the most frequent forms of resolution for property crimes in juvenile criminal law. NEUSTART organises the procedure with conflict mediators; depending on the federal province, there are different offices. The typical course: an order from the prosecution to NEUSTART, an initial meeting with the defendant, an initial meeting with the injured person, a joint mediation meeting, a written mediation report to the prosecution, termination. Defence practice: do not wait passively, proactively signal NEUSTART willingness in writing to the prosecution, with a concrete restitution proposal already in the diversion application.

Once you have understood at which thresholds a vandalism / theft proceeding is decided, you can better classify the role of the defence. Seven typical stations, from the first criminal complaint to the closure of diversion or judgment, with the points at which we have to act from a defence perspective.

Juvenile criminal law knows five out-of-court or court-internal resolution routes that all create no entry in the criminal record, and that, in vandalism / theft constellations, are practically always at the forefront.

Termination on the ground that the conduct is not punishable under § 4 para. 2 no. 2 JGG in connection with § 190 no. 1 StPO. The best variant for the depicted person. Requirement: under 16, an offence (Vergehen), no serious culpability, no special grounds of application. In vandalism / theft practice, the most frequent case, especially in school trivia and first-time shoplifting. Defence lever: early written submission to the prosecution.

Withdrawal of the application under § 141 StGB in connection with § 190 no. 2 StPO. For trivial shoplifting below the practice threshold of approximately 100 euros, the lex specialis § 141 StGB applies, and is prosecuted only on application. Where the store management withdraws the application (typically after a ban from the premises, restitution, and the processing fee), the proceeding is terminated on the ground that the conduct is not subject to court prosecution. Defence lever: early respectful contact with store management already on the first working day after the complaint.

Abstention from prosecution (§ 6 JGG). For offences (Vergehen) with a maximum top sentence of five years, without death, without further intervention need, the prosecution is to terminate prosecution where no special grounds of special or general prevention stand in the way. The classic lever for school-trivia first-time incidents without significant outcome wrong.

Diversion without an upper sentencing limit (§§ 7, 8 JGG). Unlike in adult criminal law, where diversion is excluded for sentencing threats above 5 years, the JGG knows no upper sentencing limit. § 128 para. 2 StGB (1 to 10 years), § 129 StGB burglary, and § 126 para. 2 StGB are also open to diversion, provided there is acceptance of responsibility and there are no special-prevention obstacles. In practice: victim-offender mediation at NEUSTART, community service with the juvenile-specific limits, or probation with probation services.

Finding of guilt without sentence (§ 12 JGG) or under reservation (§ 13 JGG). Already at the trial stage. The court establishes the finding of guilt but refrains from a sentence (§ 12) or reserves the imposition of the sentence for a probationary period (§ 13). Both routes create no criminal record in the strict sense and are not taken into account as a prior conviction under § 31 StGB in later proceedings.

When a vandalism / theft proceeding is over, parents almost always ask the same question: “Does this stay forever now?” The short answer: it depends, but mostly not.

Criminal record. Diversion, abstention from prosecution, withdrawal of the application, termination on the ground that the conduct is not punishable, and finding of guilt without sentence under § 12 JGG create no entry in the criminal record. Anyone who successfully completes diversion has no entry, not even as a blocking note. That is precisely the decisive strategic reason why diversion is, in most vandalism / theft constellations, the priority defence goal. Convictions are entered, but with their own, shorter deletion periods under the Tilgungsgesetz.

School and apprenticeship place. The notification system of § 33 JGG is designed for stigmatisation protection. School authorities are in principle not notified, except on a conviction to a custodial sentence of more than six months, including a conditionally suspended one (§ 33 para. 4 JGG). With vandalism / theft first-time proceedings, this threshold is practically never reached, the school learns nothing. If a proceeding is later terminated or ends with an acquittal, all bodies already informed receive a follow-up notification to clear the record. More on the stigmatisation protection under § 33 JGG in the overview article.

Working life. Certain authorities receive targeted information, others do not. Convictions without an entry in the criminal record remain invisible to ordinary employers and training institutions. Where convictions are entered, the JGG-specific deletion rules apply, usually significantly shorter than for adults. For regulated occupations (security industry, guarding services, justice, certain health professions), individual entries can remain relevant for longer, advice on this is sensible in the individual case.

When legal advice is mandatory. As soon as the police make contact, as soon as a summons to questioning arrives, as soon as a letter from the prosecution lands in the post box, every one of these thresholds, from a defence perspective, justifies an immediate call to defence counsel. The first 72 hours decide on withdrawal of the application or diversion; the first weeks decide on diversion or trial. For felony charges, § 129 StGB burglary, § 128 para. 2 StGB, § 126 para. 2 StGB, mandatory defence representation under § 39 JGG applies anyway.

Every criminal complaint against a juvenile for vandalism or theft deserves immediate legal advice. The majority of these proceedings end without an entry in the criminal record and without notification of the school, provided the right levers are pulled early enough. § 4 para. 2 no. 2 JGG, withdrawal of the application, abstention from prosecution, diversion: four routes, one of them regularly applies. Early preparation decides.