Many suspects or accused persons find themselves confronted with allegations of fraud in criminal proceedings. Alongside embezzlement and breach of trust, fraud is one of the most common offences in the field of property and economic criminal law. Fraud under section 146 of the Austrian Criminal Code (Strafgesetzbuch – StGB) is a central offence within white-collar crime and, depending on the amount of damage and the manner in which it was committed, may entail significant legal and economic consequences.
Those affected often learn of the allegation for the first time through a police summons, a letter from the public prosecutor’s office, or notification of the initiation of criminal investigations. At this stage, an early legal assessment of the facts is of crucial importance, in particular with regard to whether the statutory elements of the offence are fulfilled and which criminal consequences may arise.
This article outlines the legal foundations of fraud under Austrian law, explains the different forms of fraud recognized by the Criminal Code, the potential penalties involved, and the key aspects to consider in the criminal defense of fraud cases.
What does a criminal investigation for fraud mean?
Criminal investigations are initiated ex officio or on the basis of a report. A report may be filed by the injured party or by any person who has knowledge of a criminal offence. Responsibility for conducting the investigation lies primarily with the police and the public prosecutor’s office. In certain cases, jurisdiction may also lie with the Central Public Prosecutor’s Office for Economic Crimes and Corruption (Zentrale Staatsanwaltschaft zur Verfolgung von Wirtschaftsstrafsachen und Korruption – WKStA), cf. section 20a of the Austrian Code of Criminal Procedure (StPO). In the case of offences prosecuted ex officio, such as fraud, prosecution does not depend on the will of the reporting party; once a report has been filed, it cannot be withdrawn.
Upon receipt of a report, the police generally investigate the facts and secure evidence. The results are forwarded to the public prosecutor, who decides on the further course of action. A prerequisite for conducting an investigation is the existence of an initial suspicion, meaning specific and verifiable indications that a criminal offence may have been committed.
The investigation may result in an indictment, a dismissal of the proceedings, or a withdrawal from prosecution (so-called diversion). If there are insufficient indications at the outset, the initiation of a criminal investigation is generally refrained from.
What types of fraud are recognised under the Austrian Criminal Code (StGB)?
Austrian criminal law fundamentally distinguishes between three types of fraud, which differ primarily in terms of the amount of damage, the method of commission, and the severity of the offence.
Fraud (§ 146 StGB)
Under the basic offence of fraud pursuant to section 146 StGB (so-called “simple” fraud), the offender deceives another person about facts, thereby inducing an error and causing financial loss. It is characteristic that no particularly aggravating circumstances (such as a certain level of damage or specific modus operandi) are present.
Example:
A person deliberately provides false information about their ability to pay when making a purchase and receives the goods, even though they know—or at least seriously believe—that they will not be able to pay the purchase price.
“Simple” fraud is punishable by imprisonment of up to six months or a fine of up to 360 daily rates.
Aggravated Fraud (§ 147 StGB)
Aggravated fraud pursuant to Section 147 of the Criminal Code (StGB) constitutes a qualified form of “simple fraud” under Section 146 StGB. It is established where additional circumstances are present that increase the wrongfulness of the act, in particular through the use of certain deceptive means or a higher amount of damage.
Pursuant to section 147(1) StGB, a person commits aggravated fraud if, for the purpose of committing fraud, they use a forged or falsified document (document forgery), a false, falsified or misappropriated cashless payment instrument, unlawfully obtained data from a cashless payment instrument, false or falsified data, other such evidence, or an inaccurate measuring device (evidence fraud), or if they falsely present themselves as a public official.
Also covered is fraud involving more than minor damage where deception concerns the use of prohibited substances or methods for the purpose of doping in sport (section 147(1a) StGB – doping fraud). In these cases, the penalty is imprisonment of up to three years.
Example:
A supposed investment advisor presents forged contract documents and persuades several people to invest large sums of money in an investment project that does not actually exist.
Another case of aggravated fraud exists under § 147 para. 2 StGB if the damage caused by the offence exceeds €5,000. If the damage exceeds €300,000, a particularly severe qualification applies under § 147 para. 3 StGB, which is punishable by imprisonment of one to ten years.
Commercial Fraud (§ 148 StGB)
Commercial fraud pursuant to Section 148 of the Criminal Code (StGB) exists where the offender commits acts of fraud with the intent of obtaining a continuous income that is not merely insignificant over a prolonged period of time through their repeated commission (commercial intent is defined in Section 70 StGB). The decisive factor is an annual average assessment: the law assumes a relevant source of income if the income earned exceeds an average of €400 per month.
Anyone who commits fraud on a commercial basis is punishable by imprisonment of up to three years. If, however, aggravated fraud under § 147 paras. 1 to 2 StGB is committed on a commercial basis, the law provides for imprisonment of six months to five years.
Example:
A person runs several online shops, collects advance payments, and systematically fails to deliver any goods.
What investigative measures can be expected in cases of fraud allegations?
Depending on the severity and seriousness of the allegation, law enforcement authorities can employ investigative and coercive measures of varying intensity. These range from searches of premises and objects (so-called house searches), to seizures and confiscations (e.g., of evidence or assets), and even to the monitoring of telecommunications. In particularly serious cases, arrests may also be considered. The specific measures applied in a given case largely depend on the gravity of the allegation and the behavior of the accused.
Investigative measures serve in particular to secure evidence, to clarify the facts and the legal situation, and to safeguard financial claims (such as confiscation or civil claims by private parties). Especially in fraud proceedings, investigative measures are often complex and extensive. For each of these measures, statutory provisions exist that govern their requirements and admissibility.
If these requirements are not met, the underlying orders and warrants may be challenged, which may result in evidence being declared inadmissible in subsequent proceedings. As the outcome of proceedings frequently depends substantially on such measures and the evidence obtained, prompt legal review and decisive action by a criminal defence lawyer are of significant and lasting importance. Since the outcome of the proceedings often depends significantly on such investigative measures and the evidence obtained from them, prompt legal review and professional intervention by a criminal defense attorney are of critical and lasting importance.
Why is early criminal defense crucial in cases of fraud allegations?
When a fraud allegation is raised, it is crucial to involve a criminal defense attorney specializing in property and white-collar crime at an early stage. Key foundations for the further course of the proceedings are established already during the investigation, and their effects are often difficult to correct later. In view of the potential consequences (such as imprisonment of up to 10 years, ancillary effects like business prohibitions, disqualification of company directors, and more) a professional and carefully considered defense is essential.
As criminal defense attorneys, we first obtain a prompt overview of the specific allegation and the underlying suspicion, review the case files, and then discuss the relevant factual and legal situation with our clients in a confidential setting. At the same time, we handle communication with the prosecuting authorities and serve as the central point of contact for all parties involved in the proceedings.
Based on the specifics of each individual case, we develop a tailored defense strategy that, in particular, allows the fraud allegation to be assessed objectively and enables our clients to exercise their procedural rights effectively and purposefully.
Early criminal defence makes it possible to guide proceedings in a controlled and focused manner from the outset and is of fundamental importance for achieving a favourable outcome.
Contact usFAQ – Frequently Asked Questions on Criminal Defence in Fraud Cases
Fraud (section 146 of the Austrian Criminal Code – StGB) is committed where a person deceives another about facts, thereby inducing an error and causing financial loss. It is one of the most common offences in property and white-collar criminal law.
Fraud may be committed as simple fraud, aggravated fraud and/or commercial fraud. The distinction depends on the amount of damage, the manner in which the offence was carried out, and the intention to commit it repeatedly.
The police investigate the facts of the case, secure evidence and forward it to the public prosecutor’s office. The proceedings may conclude with an indictment, a discontinuation of the case, or a diversion.
Depending on the seriousness of the alleged fraud, measures such as searches of premises, seizure of property, interception of telecommunications or arrests may be ordered or authorised in order to secure evidence and clarify the facts of the case.
As soon as an allegation of fraud arises, a lawyer specialising in property and white-collar criminal law should be instructed. Early defence can be decisive for the outcome of the proceedings.
The penalties depend on the type and seriousness of the fraud. They range from fines and short terms of imprisonment in cases of simple fraud to several years’ imprisonment in cases of aggravated or commercial fraud.
They examine the allegations, analyse the evidential situation, develop an individual defence strategy, handle communication with the authorities, and safeguard the rights of the accused.
Acting at an early stage makes it possible to guide the proceedings in a controlled manner from the outset, to exercise procedural rights effectively, and to improve the prospects of a favourable outcome.
