Stalking w austriackim prawie karnym
Oficyna Wydawnicza AFM
The paper analyses the features of the offence of stalking in Austrian criminal law. Presented are views expressed in Austrian literature, and numerous actual cases of stalking are quoted. The Austrian Criminal Code covers stalking in the chapter entitled Crimes Against Personal Freedom (§ 107 a). Literature emphasises that the normative description of the offence contains plenty of imprecisely defined notions. The essence of the perpetrator’s behaviour is “persistent persecution”. The feature was defined in the act through the descriptions of four alternative modes of the perpetrator’s behaviour. All the four relevant legal behaviours of the perpetrator have two premises in common. First is the continuation of the behaviour for an extended period of time (the quantitative premise), and the other is the capacity of such behaviour to infringe the life of a given person (qualitative premise), with the infringement being unzumutbar, i.e. bearing it may not be expected from the victim. The act does not envisage any qualified types for this offence. It is a general, formal, and intentional offence, and the presence of perpetrator’s dolus eventualis is sufficient. The doctrine agrees that an attempt at stalking is possible along the general rules. In the original version, stalking was prosecuted in various manners, depending on its variety. After the changes in the criminal procedure, stalking became an offence pursued always at the discretion of the public prosecutor, regardless of the willingness of the victim. In Austria, stalking has been penalised since 2006, and in Poland, only since 2011. The examples of stalker behaviours and conclusions that result from the few years of application of the law penalising stalking may provide a valuable suggestion in the interpretation of the Article 190a of the Polish Penal Code.
Studia Prawnicze. Rozprawy i materiały 2012, nr 1, s. 99-127.