Aggravated fraud

An aggravated fraud pursuant to § 147 of the Criminal Code exists if a perpetrator fulfills the elements of fraud under § 146 of the Criminal Code and the act is aggravated by special means of deception or by a qualified extent of damage. The perpetrator deceives about facts, thereby causing an asset-damaging action, toleration or omission and acts intentionally with the aim of unlawful enrichment. The qualification arises in particular from the use of false or falsified documents, improperly used cashless means of payment, manipulated or spied-out data, incorrect measuring devices or comparable evidence, from falsely posing as an official or from exceeding legally defined damage limits. It is essential that the nature of the deception or extent of the damage significantly increases the injustice of the act.

objective elements of the offence

The objective element of the offense exclusively covers the externally perceptible event. Decisive are concrete actions, the means of deception used and the property damage incurred. Internal processes such as motives or intent are not considered at this level.

The objective element of aggravated fraud pursuant to § 147 of the Criminal Code initially requires that all the elements of fraud under § 146 of the Criminal Code are met. The perpetrator must induce a person by deception about facts to take an action, toleration or omission, resulting in property damage to the deceived person or to a third party. Characteristically, the perpetrator does not have direct access to someone else’s assets, but the victim makes an asset-damaging disposition himself as a result of the deception.

In addition, aggravated fraud involves a qualifying objective element. This exists if the perpetrator uses particularly dangerous or legally significant means for deception, or if a legally determined extent of damage is exceeded. This includes in particular the use of false or falsified documents, improperly used cashless means of payment, manipulated or spied-out data, incorrect measuring devices or comparable evidence, as well as falsely posing as an official. Likewise, the offense is fulfilled if property damage exceeding € 5,000.00 is caused, regardless of the nature of the deception.

The property damage occurs because the victim believes the deception and acts on this basis. It is crucial that the reduction in assets is brought about indirectly through the behavior of the deceived person. Without the deception, the victim would not have taken the specific action, toleration or omission.

A deception about facts exists if the victim is presented with incorrect facts, true facts are distorted or circumstances requiring clarification are concealed. Facts are concrete events or conditions of the past or present that are accessible to proof. The deception must be causal for the asset disposition.

The objective element of the offense is already fulfilled as soon as a property damage occurs through the deception-related behavior. It is not necessary for the perpetrator to have already realized the financial advantage.

Steps of legal assessment

Perpetrator:

The subject of the offense can be any person who is criminally responsible. Special personal characteristics are not required, nor does § 147 of the Criminal Code contain a special offense.

Object of the Offense:

The object of the offense is the assets of the deceived person or a third party, which are damaged by the deception-related behavior.

Act:

The act consists of deception about facts, through which the victim is induced to take an action, toleration or omission that causes property damage.
In the case of aggravated fraud pursuant to § 147 of the Criminal Code, there must also be a qualifying circumstance, in particular the use of a special means of deception such as a false or falsified document, an improperly used cashless means of payment, manipulated or spied-out data, an incorrect measuring device, falsely posing as an official or exceeding the statutory damage limits.

Result of the Offense:

The result of the act lies in the occurrence of property damage, which directly goes back to the deception-related behavior of the victim. A particularly serious qualification exists in particular if damage exceeding € 300,000.00 is caused by the act.

Causality:

The property damage must be a consequence of the deception. Without the deception, the victim would not have made the asset-damaging disposition.

Objective Attribution:

The result is objectively attributable if exactly that risk is realized that the penal norm wants to prevent, namely that assets are impaired by the victim’s deception-related self-harm.

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Distinction from other offences

The offense of aggravated fraud pursuant to § 147 of the Criminal Code is necessarily based on fraud under § 146 of the Criminal Code. It covers cases in which a person is induced by deception about facts to take an action, toleration or omission that causes property damage, whereby the injustice is increased by qualifying means of deception or an increased extent of damage. The focus of the injustice lies in the targeted misleading of the victim, who acts erroneously due to a false picture of the facts.

It is also characteristic of aggravated fraud that no violence and no dangerous threat are used. The victim does not act under duress, but on the basis of a deception that he believes. The perpetrator consciously exploits the error to obtain an unlawful financial advantage for himself or a third party.

• § 105 of the Criminal Code – Coercion: Coercion covers cases in which someone is forced by violence or dangerous threat to behave in a certain way. A property damage is not necessarily required for this. In the case of aggravated fraud, the coercion is completely absent. The victim’s behavior is based exclusively on deception, not on pressure or threat. If either the deception about facts or the property damage is missing, there is no fraud.
• § 142 of the Criminal Code – Robbery: In the case of robbery, the perpetrator takes away a foreign movable object himself or directly coerces it away, using violence or threat with present danger to life or limb. In the case of aggravated fraud, both the act of taking away and the coercive character are missing. The financial disadvantage arises solely through the deception-related disposition of the victim.

Concurrences:

Genuine Concurrence:

Genuine concurrence exists if, in addition to aggravated fraud, further independent offenses are committed, such as forgery of documents, data forgery or breach of trust. The offenses remain side by side, as different legal interests are violated and there is no consumption.

Spurious Concurrence:

Spurious concurrence exists if another offense completely covers the entire injustice content of the fraud. In this case, the fraud recedes as a subsidiary offense, for example if the deception is merely a non-independent means of committing a more specific offense.

Multiple Offenses:

Multiple offenses exist if several independent acts of fraud are committed, for example in the case of temporally separated deceptions, each with independent property damage. Each action forms its own criminal unit.

Continued Action:

A single act can be assumed if several acts of deception are closely related in terms of time and subject matter and are supported by a uniform plan of action. The act ends as soon as no further deception-related asset disposition takes place.

Burden of proof and evaluation of evidence

Public Prosecutor’s Office:

The public prosecutor’s office must prove that the accused has committed fraud under § 146 of the Criminal Code and that additionally a qualification offense of § 147 of the Criminal Code is fulfilled. The starting point is the proof of a deception about facts, through which the accused has induced a person to take an action, toleration or omission that causes property damage. In addition, it must be proven that the accused acted intentionally in order to obtain an unlawful financial advantage for himself or a third party.

In addition, the public prosecutor’s office must prove that the act was committed under the qualifying circumstances of § 147 of the Criminal Code, in particular through the use of a special means of deception or through exceeding legally defined damage limits.

It must be proven, in particular, that

• a deception about facts actually took place,
• the deception was causal for an error on the part of the deceived party,
• the deceived person has taken an action, toleration or omission on the basis of this error,
• this behavior objectively led to a financial loss for the deceived party or a third party,
• a causal connection exists between deception, error, asset disposition and property damage,
• the financial loss was precisely the result of the deception-related disposition,
• the accused acted with intent to enrich himself,
• sowie dass ein qualifizierender Umstand des § 147 StGB vorliegt, etwa
  • the use of a false or falsified document,
  • an improperly used cashless means of payment,
  • manipulated or spied-out data,
  • an incorrect measuring device,
  • falsely posing as an official,
  • or damage exceeding € 5,000.00 or € 300,000.00.

The public prosecutor’s office must demonstrate whether act of deception, error, asset disposition, property damage, intent to enrich and qualification are objectively ascertainable, for example through

• witness statements,
• communication records such as messages, emails, or meeting minutes,
• documents, contracts, or written records,
• payment flows, transfers or booking receipts,
• video or audio recordings,
• as well as indications of a systematic approach, repetition or purposefulness of the deception.

Court:

The court examines all evidence in the overall context. It assesses whether, according to objective standards, there is a deception about facts that has causally led to an error-related asset disposition and, as a further consequence, to property damage. In addition, it must be examined whether the qualifying characteristics of § 147 of the Criminal Code and the intent to enrich of the accused can be established beyond doubt.

In doing so, the court takes into account in particular

• content, nature and intensity of the deception,
• the temporal connection between deception, error, and disposition of property,
• the concrete behavior of the victim and their decision-making basis,
• Witness statements on the course of the deception and on the participation of the accused,
• communication content, contract documents or payment receipts,
• whether the statements of the accused were objectively untrue or misleading,
• whether a reasonable average person would have succumbed to an error in this deception,
• whether the property damage has occurred in an economically comprehensible manner,
• as well as whether a targeted, systematic or particularly dangerous approach is recognizable.

The court clearly distinguishes between mere contractual risks, civil law disruptions in performance, expressions of opinion, promises for the future without a factual core as well as cases in which, although a financial disadvantage has occurred, a deception constituting an offense or a qualification under § 147 of the Criminal Code cannot be proven.

Accused Person:

The accused person bears no burden of proof. However, he can point out reasonable doubts, in particular with regard to

• whether there was a deception about facts at all,
• whether the information was objectively incorrect or merely evaluative,
• whether an error actually occurred on the part of the victim,
• whether a causal connection existed between deception and disposition of property,
• whether the behavior of the victim was voluntary and self-responsible,
• whether a financial loss has actually occurred,
• whether the damage limits of § 147 of the Criminal Code have been reached,
• whether the accused had intent to enrich themselves,
• or whether there are only civil law disputes or misunderstandings.

He can also demonstrate that information has been provided misleadingly, incompletely, situationally or in good faith or that, although a financial disadvantage is claimed, the requirements of aggravated fraud are not met.

Typical Assessment

In practice, the following evidence is of particular importance in the case of aggravated fraud pursuant to § 147 of the Criminal Code:

• witness statements on the deception situation and the victim’s decision-making basis,
• messages, emails, or other communication records on the content of the deception,
• documents, contracts, offers or invoices,
• Payment receipts, transfers, or asset shifts,
• video or audio recordings,
• temporal sequences that prove the connection between deception, error, and damage,
• indications of systematic, repeated or particularly dangerous behavior,
• as well as documents for the economic calculation of damages.

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Practical example

• Fraud by pretending a non-existent service while falsely posing as an official: The perpetrator falsely poses as an official and, in the context of this deception, demands the payment of an alleged fee, charge or penalty. The victim trusts the pretended official position, makes the required payment and expects a corresponding official service or the completion of a matter. Such a service is not intended and does not take place either. The property damage arises because the victim disposes of his assets himself on the basis of the qualified deception. Here, too, there is a aggravated fraud pursuant to § 147 para. 1 Z 3 of the Criminal Code .
• Fraud with a qualified extent of damage
  The perpetrator misrepresents facts without using any special means of deception, induces the victim to make a disposition detrimental to their assets, and thereby causes damage exceeding €5,000.00. The financial loss arises from the victim’s disposition caused by the deception. Due to the qualified extent of damage, regardless of the type of deception, there is a serious fraud pursuant to § 147 para. 2 of the Criminal Code (StGB). If the damage exceeds €300,000.00, the offense is covered by § 147 para. 3 of the Criminal Code (StGB) is fulfilled.

These examples illustrate the typical manifestations of serious fraud. It is also characteristic here that no coercion or threats are used, but the victim is induced by particularly significant means of deception or by the extent of the damage to make a voluntary but erroneous disposition of assets. The focus of the injustice lies in the qualified deception or the extraordinary extent of damage, not in the intensity of physical impact or the nature of the transfer of assets.

subjective elements of the offence

The subjective element of serious fraud pursuant to § 147 of the Criminal Code (StGB) requires intent with regard to all objective elements of § 146 of the Criminal Code (StGB). The perpetrator must recognize that by deception about facts he causes an error that leads to a disposition detrimental to assets.

Conditional intent is sufficient. The perpetrator must seriously consider the deception, the error, the disposition of assets, and the financial loss as possible and accept them.

In addition, the intent must also extend to the qualifying characteristic of § 147 of the Criminal Code (StGB), such as the use of a special means of deception or the occurrence of a qualified financial loss.

A purpose of enrichment is mandatory. The perpetrator must act in order to obtain an unlawful financial advantage for himself or a third party that is identical in substance to the financial loss caused.

No subjective element exists if there is no intent to deceive, no intent to enrich, or no intent with regard to the qualification.

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Culpability and mistakes

Mistake of prohibition:

A mistake of prohibition only excuses if it was unavoidable. Anyone who engages in conduct that recognizably interferes with the rights of others cannot claim that they did not recognize the illegality. Everyone is obliged to inform themselves about the legal limits of their actions. Mere ignorance or a reckless error does not absolve one of responsibility.

Principle of culpability:

Only those who act culpably are punishable. Intentional offenses require that the perpetrator recognizes the essential events and at least accepts them as a possibility. If this intent is lacking, for example, because the perpetrator mistakenly assumes that their behavior is permitted or is voluntarily supported, at most negligence exists. This is not sufficient for intentional offenses.

Incapacity to be held accountable:

No guilt is attributed to someone who, at the time of the offense, was unable to recognize the injustice of their actions or to act in accordance with this insight due to a severe mental disorder, a pathological mental impairment, or a significant inability to control their actions. In case of corresponding doubts, a psychiatric assessment will be obtained.

Excusable state of necessity:

An excusable state of necessity may exist if the perpetrator acts in an extreme situation of duress in order to avert an acute danger to their own life or the lives of others. The behavior remains unlawful but can have a mitigating or excusing effect if there was no other way out.

Putative self-defense:

Anyone who mistakenly believes that they are entitled to an act of defense acts without intent if the error was serious and comprehensible. Such an error can reduce or exclude guilt. However, if a breach of duty of care remains, a negligent or mitigating assessment comes into consideration, but not a justification.

Extinction of punishment and diversion

Diversion:

A diversion is only possible to a limited extent in the case of serious fraud under § 147 of the Criminal Code (StGB). Serious fraud is legally considered significantly more serious than simple fraud because either particularly dangerous means of deception are used or significant financial damage has occurred. Even if there is no violence or threat, this increased weight of injustice regularly speaks against a diversionary settlement.

Whether a diversion can still be considered depends on the overall picture of the crime. The extent of guilt, the nature of the deception, the amount of damage, the intensity of the crime, and the perpetrator’s behavior after the crime are particularly relevant. The more serious the deception and the higher the damage, the more unlikely a diversion is.

A diversion can be examined exceptionally if

• the overall guilt is minor,
• although serious fraud exists, it is at the lower end of criminal liability,
• the financial damage is manageable and has been fully compensated,
• no planned, systematic, or continuous approach is apparent,
• the facts are simple and clear,
• and the perpetrator acts insightfully, cooperatively, and willing to compromise.

If a diversion is considered, the court may order monetary payments, community service, supervision instructions, or victim-offender mediation. A diversion does not lead to a conviction and does not result in an entry in the criminal record.

Exclusion of Diversion:

A diversion is regularly excluded if

• the fraud was committed in a planned or repeated manner,
• high financial damage has occurred,
• multiple acts of fraud exist,
• commercial activity is apparent,
• false documents, manipulated data, or misused means of payment were used,
• the crime was committed within a criminal group,
• or the behavior has significantly impaired the economic freedom of decision of the victim.

Especially in the case of very high damages or particularly dangerous means of deception, a diversion is practically excluded.

A diversion in the case of serious fraud is realistic only in rare exceptional cases. It requires minor guilt, manageable damage, and early, complete restitution. In practice, it is possible much more frequently in the case of simple fraud than in the case of serious fraud, which regularly leads to a formal criminal procedure.

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Sentencing and consequences

The court assesses the penalty according to the extent of the financial damage, the nature, intensity, and duration of the deception, and the extent to which the freedom of decision and economic position of the victim were impaired. It is particularly important how planned, targeted, or repeated the perpetrator acted and whether the deceptive behavior led to a significant impairment of assets. It must also be taken into account whether the perpetrator acted with particular sophistication, using qualified means of deception, or abusing a relationship of trust.

Aggravating Factors Exist in Particular If

• the act was committed in a planned, systematic or repeated manner,
• significant financial damage has occurred,
• several assets or economically central positions were affected,
• the perpetrator exploited a special relationship of trust,
• the act was committed in a relationship of proximity, dependency, or superiority,
• or relevant prior convictions exist.

Mitigating Factors Include

• a clean record,
• a full confession and recognizable insight,
• an early termination of the criminal behavior,
• active and complete efforts at reparation,
• special stress or overstrain situations for the perpetrator,
• or an excessively long duration of proceedings.

A conditional remission of the prison sentence is only possible to a limited extent in the case of serious fraud. The decisive factor is whether, despite the qualified commission of the offense, there is a positive social prognosis. With increasing amount of damage, the use of particularly dangerous means of deception, or in the case of planned or repeated action, the probability of a conditional sentence decreases significantly.

Penalty Range

For serious fraud pursuant to § 147 of the Criminal Code (StGB), the law provides for significantly higher penalties than for simple fraud. The decisive factor is whether the crime was committed by particularly dangerous means of deception or a qualified extent of financial damage was reached.

If the fraud is committed using false or falsified documents, improperly used cashless means of payment, manipulated or spied-out data, an incorrect measuring device, or by falsely posing as a civil servant, a prison sentence of up to three years is threatened.

If the serious fraud lies in a qualified financial loss, in particular in damage exceeding €5,000.00, a prison sentence of up to three years is also provided for. If the crime causes damage exceeding €300,000.00, the penalty is increased to a prison sentence of one to ten years.

If the serious fraud is committed within a criminal organization, the penalty is increased to six months to five years imprisonment, regardless of the specific amount of damage.

An expressly regulated less serious case is not provided for even in the case of serious fraud. However, the specific penalty amount moves within the respective statutory penalty framework and is based in particular on the amount of damage, the nature and intensity of the deception, the extent of the means of deception used, the duration of the crime, and the personal circumstances of the perpetrator. In the case of lesser guilt, manageable damage, and complete restitution, the lower range of the penalty framework can be used, while in the case of high damages or particularly dangerous deception, severe prison sentences are threatened.

It should also be noted in the case of serious fraud that not every incorrect statement is punishable. Criminal liability requires that there be a deception about facts that causally leads to a disposition of assets and to a financial loss and that the perpetrator acts with intent to enrich himself. If, for example, there is a lack of a misrepresentation caused by deception, of the causation of damage, of intent with regard to the qualification, or of intent to enrich, the offense is not made out and there is no criminal liability.

Monetary Penalty – Day-fine System

Austrian criminal law calculates monetary penalties according to the day-fine system. The number of day-fines depends on the guilt, the amount per day depends on the financial capacity. In this way, the penalty is adapted to the personal circumstances and yet remains noticeable.

• Range: up to 720 daily rates – at least €4, maximum €5,000 per day.
• Practical formula: Approximately 6 months imprisonment corresponds to around 360 day-fines. This conversion serves only as orientation and is not a rigid scheme.
• In case of non-payment: The court can impose a substitute custodial sentence. As a rule, the following applies: 1 day of substitute custodial sentence corresponds to 2 day-fines.

Note:

In the case of serious fraud pursuant to § 147 of the Criminal Code (StGB), the monetary penalty clearly takes a back seat to the prison sentence. Due to the increased penalty range, an exclusive monetary penalty is not the rule by law, but only conceivable in exceptional cases with minor guilt and a low level of injustice. In practice, the day-fine system is therefore usually applied in addition to or as a substitute, while prison sentences, conditional or unconditional, are in the foreground.

Imprisonment and (partially) suspended sentence

§ 37 of the Criminal Code (StGB): If the statutory penalty threat extends to five years imprisonment, the court may, under the statutory conditions, impose a monetary penalty instead of a short prison sentence of no more than one year. This provision is only applicable to a limited extent in the case of serious fraud pursuant to § 147 of the Criminal Code (StGB), as the penalty range is significantly increased depending on the design of the offense. In practice, § 37 of the Criminal Code (StGB) only comes into consideration if, despite the qualification, a short prison sentence would be appropriate to the guilt and the overall picture of the offense is at the lower end of serious fraud. This is not a separate monetary penalty threat, but a substitute form for short prison sentences.

§ 43 of the Criminal Code (StGB): A conditional remission of the prison sentence is possible if the imposed sentence does not exceed two years and the perpetrator has a positive social prognosis. In the case of serious fraud, this possibility is much more limited than in the case of simple fraud. It is particularly relevant in the case of first-time offenders, manageable damage, complete compensation for damage, and lack of planned or repeated action. With increasing amount of damage or the use of qualified means of deception, the probability of a conditional remission decreases significantly.

§ 43a of the Criminal Code (StGB): The partially conditional remission allows a combination of unconditional and conditionally remitted part of the sentence for prison sentences over six months and up to two years. In the case of serious fraud, this form can become important if the picture of the offense is to be classified as no more than minor, but also not as particularly serious. It is relevant, for example, in the case of higher damage, multiple acts, or increased intensity of the crime, provided that there is still a favorable social prognosis.

§§ 50 to 52 of the Criminal Code (StGB): The court may issue instructions and order probation assistance. In the case of serious fraud, these measures often concern behavior-steering conditions, in particular for compensation for damage, for financial order, or for the stabilization of personal living conditions. The aim is to prevent further property offenses and to promote sustainable social reintegration.

Jurisdiction of the courts

Subject-matter Jurisdiction

The serious fraud pursuant to § 147 of the Criminal Code (StGB) is threatened with prison sentences of up to three years, up to five years, or up to ten years, depending on the nature of the deception and the amount of damage. Thus, the offense no longer falls within the jurisdiction of the district court.

The main proceedings are generally conducted before the regional court. Which composition of the regional court is responsible depends on the specific penalty threat and the extent of damage.

In practice, the following applies:

• In the case of serious fraud with a penalty threat of up to three years, the regional court decides through a single judge.
• If there is a serious fraud with a significantly increased extent of damage, especially in the case of very high financial losses, the regional court is responsible as a lay judge court.
• A jury court is not responsible in the case of serious fraud, as § 147 of the Criminal Code (StGB) does not provide for a life sentence and no lower limit of more than five years.

The district court is never factually responsible in the case of serious fraud, regardless of whether it is a simple or complex case.

Local Jurisdiction

The court with local jurisdiction is generally the court in whose district the crime was carried out or was to be carried out. The place is particularly relevant,

• the act of deception was committed or
• the asset-damaging behavior of the deceived party was carried out or should have been carried out.

If this place cannot be clearly determined, the jurisdiction is based on the statutory catch-all rules, in particular according to

• the residence of the accused person,
• the place of arrest,
• or the seat of the competent public prosecutor’s office.

The proceedings are conducted where a practical and orderly implementation is best guaranteed.

Hierarchy of Courts

If a judgment is issued by the regional court, the parties have access to the legal chain of command.

• Appeal can be lodged against judgments of the regional court.
• In cases provided for by law, a plea of nullity may also be considered.
• Depending on the type of procedure, the higher regional court or the supreme court decides on these legal remedies.

It is checked whether the procedure was properly conducted, the law was correctly applied, and the decision was made free of serious procedural errors.

Civil claims in criminal proceedings

In the case of serious fraud pursuant to § 147 of the Criminal Code (StGB), the injured person can assert their civil law claims directly in the criminal proceedings as a private party. Since serious fraud is also aimed at behavior detrimental to assets caused by deception about facts, the claims include in particular monetary payments, transferred amounts, surrendered assets, waivers of claims, as well as other financial disadvantages that have arisen as a result of the deception. This also applies if the deception is carried out by qualified means such as false or falsified documents, manipulated data, or falsely posing as an official, or if there is qualified damage.

Depending on the facts, consequential damages may also be claimed, for example, if the deceptive act has resulted in economic disadvantages, liquidity problems, or operational damage.

The private party joinder suspends the statute of limitations for all claims asserted as long as the criminal proceedings are pending. The statute of limitations only continues to run after the criminal proceedings have been concluded with legal effect, insofar as the damage has not been fully awarded.

A voluntary remedy, such as the repayment of amounts obtained, compensation for the damage caused, or a serious effort to provide compensation, may have a mitigating effect, provided that it is carried out promptly and completely.

However, if the perpetrator has deceived deliberately, systematically, or repeatedly, caused significant property damage, or carried out the deception in a particularly sophisticated manner or using qualified means of deception, a subsequent settlement of damages will regularly lose some of its mitigating effect. In such constellations, a subsequent settlement can only compensate for the injustice of the serious fraud to a limited extent.

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Overview of criminal proceedings

Commencement of Investigation

Criminal proceedings require a concrete suspicion, from which a person is considered an accused and can claim all rights of the accused. Since it is an official offense, the police and public prosecutor’s office initiate the proceedings ex officio as soon as a corresponding suspicion exists. A special declaration of the injured party is not required for this.

Police and Public Prosecutor’s Office

The public prosecutor conducts the preliminary investigation and determines the further course of action. The criminal police carry out the necessary investigations, secure evidence, take witness statements, and document the damage. Ultimately, the public prosecutor decides on discontinuation, diversion, or indictment, depending on the degree of culpability, the amount of damage, and the evidence.

Interrogation of the Accused

Before each interrogation, the accused person receives full instruction on their rights, particularly the right to remain silent and the right to legal counsel. If the accused requests legal counsel, the interrogation must be postponed. The formal interrogation of the accused serves to confront them with the accusation and to provide an opportunity for a statement.

Access to files

Access to files can be obtained from the police, public prosecutor, or court. It also includes items of evidence, provided that the purpose of the investigation is not thereby jeopardized. The private claimant’s joinder is governed by the general rules of the Code of Criminal Procedure and allows the injured party to assert claims for damages directly in criminal proceedings.

Main Hearing

The main hearing serves for oral evidence taking, legal assessment, and decision-making on any civil law claims. The court particularly examines the course of events, intent, amount of damage, and the credibility of statements. The proceedings conclude with a conviction, acquittal, or diversionary resolution.

Rights of the accused

• Information & defense: right to notification, legal aid, free choice of defense counsel, translation assistance, and submission of evidence motions.
• Silence & counsel: right to remain silent at any time; if a defense attorney is requested, the interrogation must be postponed.
• Duty to inform: prompt notification of suspicion and rights; exceptions only permitted to safeguard the purpose of the investigation.
• Practical access to files: investigation and trial records; access by third parties is restricted to protect the accused.

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Practical guidance and behavioural advice

1. Maintain silence.
   A brief statement is sufficient: “I am exercising my right to remain silent and will first speak with my defense counsel.”
   This right applies from the very first interrogation by the police or the public prosecutor.
2. Contact defense counsel immediately.
   No statement should be made without access to the investigation files. Only after reviewing the files can the defense assess which strategy and evidence preservation measures are appropriate.
3. Secure evidence immediately.
   You should secure all available documents, messages, photos, videos, and other records as early as possible and keep copies. Digital data must be regularly backed up and protected from subsequent changes. Note down important individuals as potential witnesses and promptly record the sequence of events in a memorandum.
4. Do not contact the opposing party.
   Your own messages, calls, or posts may be used as evidence against you. All communication should take place exclusively through your defense counsel.
5. Secure video and data recordings in time.
   Surveillance videos from public transport, venues, or property management systems are often automatically deleted after only a few days. Requests for data preservation must therefore be submitted immediately to the operators, the police, or the public prosecutor’s office.
6. Document searches and seizures.
   In cases of house searches or seizures, you should request a copy of the warrant or record. Note the date, time, persons involved, and all items taken.
7. In case of arrest: make no statements about the matter.
   Insist on immediate notification of your defense counsel. Pre-trial detention may only be imposed if there is strong suspicion of guilt and an additional ground for detention. Less severe measures (e.g., pledge, reporting duty, contact ban) must take precedence.
8. Prepare reparation strategically.
   Payments, symbolic gestures, apologies, or other compensatory offers should be handled and documented exclusively through the defense. Structured reparation can positively influence diversion and sentencing.

Your Benefits with Legal Assistance

Particularly in the case of serious fraud, the legal assessment depends largely on the specific content of the deception, the victim’s error, the disposition of assets, the damage incurred, and whether and in what form a qualifying characteristic exists. Even minor deviations in the facts can determine whether there is actually a serious fraud, only a simple fraud, a civil dispute, or, in the absence of deception, error, intent, or qualification, no criminal liability at all.

Early legal support is particularly important in the case of allegations of serious fraud, as increased penalties, complex evidentiary issues, and often economically significant consequences are at stake. It ensures that the facts are precisely classified, evidence is critically assessed, and exculpatory circumstances are processed in a legally usable manner.

Our law firm

• examines whether there is actually a deception about facts that constitutes an offense or whether there are only non-binding declarations, assessments, contract negotiations, or business risks,
• analyzes the evidence, in particular with regard to the act of deception, error, causality, disposition of assets and property damage, as well as the qualifying circumstances of § 147 StGB,
• clarifies whether there was an unlawful enrichment intent and whether this also extends to the qualification or whether there is good faith, incorrect or only civilly relevant behavior,
• develops a clear defense strategy that legally classifies the economic background, the actual process, and the sentencing consequences in a precise manner.

As a representation specialized in criminal law, we ensure that an accusation of serious fraud is carefully examined, not prematurely narrowed, and that the proceedings are conducted on a sustainable factual and legal basis. Especially in the case of high amounts of damage or qualified allegations of deception, an early and well-founded defense can be decisive for the further course of the proceedings.

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FAQ – Frequently Asked Questions

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