Section 149 StGB: fare evasion, admission obtained by deception, automated services, penalties and authorisation by the injured person.
Mag. Christopher Angerer, Rechtsanwalt
Your lawyer for criminal defence
Criminal proceedings are a matter of trust. One lawyer who walks with you from the first consultation through to the trial, everything from one hand.
Section 149 StGB covers two different situations: obtaining transport or admission by deception about facts where the fare is only minor, and obtaining an automated service without payment where the service does not consist in a product. For automated services, the statute distinguishes between a minor and a higher fare.
The everyday term “fare evasion” does not answer the question of criminal liability. Under subsection 1, the missing payment must be accompanied by deception about facts. This article explains the statutory variants, penalties, authorisation by the injured person and the distinction from fraud, theft and a purely unpaid claim.
Choose the situation that is closest to your case. You will receive the key points to check and a sensible next step.
Already know that you want to make an enquiry? Go directly to the enquiry form.
For section 149 StGB, the type of service, access or transport, deception and payment are assessed together.
Section 149(1) StGB covers obtaining transport from an institution serving public transport by deception about facts, where the fixed fare was not paid and the fare is only minor.
Keep the inspection record, complaint, summons and documents relating to the journey. The assessment depends on which facts were presented and how access to the transport was obtained.
Section 149(1) StGB also refers to obtaining admission to a performance, exhibition, other event or facility. The provision requires deception about facts and an unpaid fare that is only minor.
Collect the ticket, reservation, messages, house rules and the precise sequence of admission. Calling the incident an “unpaid visit” does not replace the legal assessment.
Section 149(2) StGB concerns an automated service that does not consist in a product. The service may have been obtained for the accused person or for someone else. If the fare is only minor, subsection 3 provides a lower penalty range.
Record which machine was involved, what service it allegedly provided and how the fare was calculated. If a machine dispensed a product, the wording of section 149(2) requires a separate classification.
An unpaid invoice does not automatically satisfy section 149 StGB. For subsection 1, the transport or admission must have been obtained by deception about facts and the fare must be only minor. Subsection 2 concerns an automated service that does not consist in a product.
Separate the service, access, fare, alleged deception and actual sequence. Only then can the distinction from fraud, theft or a purely unpaid claim be assessed properly.
Section 149(1) StGB covers transport provided by an institution serving public transport and admission to a performance, exhibition, other event or facility. The transport or admission must have been obtained by deception about facts. The fixed fare must not have been paid and must be only minor.
Section 149(2) StGB addresses a different situation. Under its wording, a person who obtains for themselves or someone else an automated service that does not consist in a product without paying the fare falls under this variant. Subsection 3 provides a separate lower penalty range for a minor fare.
The variants raise common questions about payment and the precise sequence. The type of service remains decisive, however. Transport, admission and an automated service must therefore not be assessed on the basis of the same reasoning.
For transport and admission, section 149(1) StGB requires deception about facts. Failing to pay therefore does not by itself complete the statutory elements. It must also be assessed which fact was falsely presented or misrepresented and how this led to the transport or admission being obtained.
The fare, the type of access, the communication and the sequence of the inspection or admission may be relevant. The documents should show what was known before the service and which statement or action the allegation treats as deception.
An unpaid claim may raise civil-law issues. It does not by itself answer the question of deception or the requirement that the fare be only minor. These issues must be examined separately.
Section 149(2) StGB concerns an automated service that does not consist in a product. It also covers the situation where the service is obtained for someone else. The specific function of the machine and the service allegedly obtained without payment remain decisive.
The statute distinguishes this variant by the amount of the fare. The basic variant in subsection 2 carries a penalty of up to six months’ imprisonment or up to 360 daily rates. If the fare is only minor, subsection 3 carries a penalty of up to one month or up to 60 daily rates.
The wording expressly refers to a service that does not consist in a product. If a machine dispenses a physical product, the first question is therefore whether the facts fall within this automated-service variant at all. A technical description alone does not replace the legal classification.
| Variant | Statutory basis | Penalty range |
|---|---|---|
| Subsection 1 | Transport or admission obtained by deception about facts where the fare is minor | Imprisonment of up to one month or a fine of up to 60 daily rates |
| Subsection 2 | Automated service that does not consist in a product, obtained without payment | Imprisonment of up to six months or a fine of up to 360 daily rates |
| Subsection 3 | Automated service under subsection 2 where the fare is only minor | Imprisonment of up to one month or a fine of up to 60 daily rates |
Section 149 StGB does not set a fixed euro threshold for a minor fare. The legal assessment depends on the individual case.
Section 149(4) StGB provides that the accused person may be prosecuted only with authorisation by the injured person. Authorisation is therefore a separate procedural issue. It does not replace the assessment of the statutory elements or the identification of the service involved.
The complaint, correspondence and all information about the injured person or organisation should therefore be considered together. The relevant points are the allegation made and the service and fare to which it relates.
This procedural requirement must be distinguished from a later payment or civil settlement. Payment may be relevant to how the matter proceeds. It does not automatically answer the statutory requirements of section 149(4) StGB.
For subsections 1 and 3, the statutory penalty is up to one month’s imprisonment or a fine of up to 60 daily rates. For subsection 2, it is up to six months’ imprisonment or a fine of up to 360 daily rates.
The applicable subsection depends on the service and, for an automated service, also on the fare. Calling an incident fare evasion or automated fraud does not by itself establish which subsection must be examined.
The sequence, type of service, fixed fare, alleged deception and information in the complaint or summons must be assessed together. The penalty range does not replace that assessment.
Section 149 StGB is directed at obtaining transport, admission and a specific automated service by the means defined in the provision. General fraud under section 146 StGB concerns a different property situation with its own assessment of deception and disposition. An unpaid amount therefore does not automatically constitute fraud under section 146 StGB.
Theft under section 127 StGB concerns taking another person’s movable property. Section 149 focuses on the transport, admission or automated service obtained. The applicable provision depends on the actual sequence and the object of the conduct.
A purely unpaid claim must first be assessed according to its contractual and payment basis. The special statutory requirements of section 149 must be present before the matter can be classified as obtaining a service by deception. Keeping these questions separate prevents an unpaid invoice from being treated as criminal service evasion without further examination.
An inspection or unpaid invoice does not decide the classification on its own. Under section 149(1), deception about facts and a minor fare must be examined. For an automated service, it must additionally be established that the service did not consist in a product.
Subscribe to legal news. If you would like current updates on criminal law and procedural issues, you can subscribe to the Brandauer legal news newsletter.
No. Under section 149(1) StGB, transport must have been obtained by deception about facts in addition to the fixed fare not being paid. The fare must also be only minor. Mere non-payment does not answer these questions.
The provision refers to obtaining transport from an institution serving public transport and obtaining admission to a performance, exhibition, other event or facility. In both situations, deception about facts, non-payment and the minor amount of the fare must be examined.
Section 149(2) StGB concerns an automated service that does not consist in a product. The service may have been obtained for the accused person or for someone else. If the fare is only minor, the lower penalty range in subsection 3 applies.
For subsections 1 and 3, the statute provides for imprisonment of up to one month or a fine of up to 60 daily rates. For subsection 2, the range is up to six months’ imprisonment or up to 360 daily rates. The facts determine the applicable variant.
Section 149(4) StGB provides that the accused person may be prosecuted only with authorisation by the injured person. This requirement is separate from whether a service was obtained by deception and which subsection applies.
Keep the inspection record, summons, complaint, payment demand and all documents concerning the admission or machine. Set out the sequence in chronological order and identify which facts are said to amount to deception. Have the specific allegation reviewed before making a statement.
How general fraud differs from a purely unpaid claim.
The questions to examine when another person’s movable property is taken.
Initial orientation on different property offences and their requirements.
In criminal matters every hour counts. Call us directly or send an email, callback within one business day, earlier in urgent cases.
Address
BRANDAUER Rechtsanwälte GmbH Giselakai 51 5020 Salzburg