Many accused persons or suspects find themselves confronted with allegations of fraud in criminal proceedings. In addition to embezzlement and breach of trust, the offence of fraud is one of the most common crimes in the field of property and white-collar criminal law. Fraud pursuant to Section 146 of the Austrian Criminal Code (StGB) is a central offence of economic crime and, depending on the amount of damage and the manner in which it is committed, can entail significant legal and financial 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?

A criminal investigation is initiated either ex officio or on the basis of a criminal complaint. Such a complaint may be filed by the injured party themselves 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 the Prosecution of Economic Crimes and Corruption (WKStA) pursuant to Section 20a of the Code of Criminal Procedure (StPO). In the case of offences prosecuted ex officio, such as fraud, criminal prosecution does not depend on the will of the complainant, and a complaint once filed cannot be withdrawn.

After a complaint has been received, the police generally investigate the facts of the case and secure evidence. The results are then forwarded to the public prosecutor’s office, which decides on the further course of action. A prerequisite for conducting an investigation is the existence of an initial suspicion, meaning concrete 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 are the types of fraud under the 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)

In the basic offence of fraud und scetion 146 StGB (so-called “simple” fraud), the perpetrator deceives another person about facts, thereby causing a misconception and resulting in a financial loss. It is characterized by the absence of any particularly aggravating circumstances, such as a specific amount of damage, the method of commission, or similar factors.

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 under § 147 StGB is a qualified form of “simple” fraud under § 146 StGB. It occurs when additional circumstances are present that increase the wrongdoing of the offence, particularly through the use of certain deceptive means or by causing a higher amount of damage.

Under § 147 para. 1 StGB, a person commits aggravated fraud if they use a false or falsified document (so-called document fraud), a false, altered, or misappropriated cashless payment method, accessed data of a cashless payment method, false or falsified data, any other such evidence, or an incorrect measuring device (evidence fraud), or if they falsely present themselves as an official. Also included is fraud causing more than minor damage in cases of deception regarding the use of prohibited substances or methods for the purpose of doping in sports (§ 147 para. 1a StGB – doping fraud). In these cases, the penalty can be 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 under § 148 StGB occurs when the perpetrator commits acts of fraud with the intention of obtaining a continuous, not merely minor, income over an extended period through repeated offences (commerciality is defined in § 70 StGB). The law considers an income source relevant if the average monthly earnings exceed €400, based on an annual average.

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 primarily to secure evidence, clarify the factual and legal situation, and protect property-related claims (such as forfeiture or claims by private parties). In fraud cases, these measures are often complex and extensive. Each measure is governed by statutory regulations that set out the conditions and admissibility requirements. If these conditions are not met, the underlying orders and decisions can be challenged, which may result in evidence being inadmissible in the further proceedings.

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 criminal 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 defense allows the proceedings to be managed in a controlled and focused manner from the outset and is fundamentally important for achieving a favorable outcome.

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Frequently Asked Questions on Criminal Defence in Fraud Cases