Breach of trust

A breach of trust pursuant to § 153 of the Criminal Code exists if a person knowingly abuses an authority granted to them to dispose of another person’s assets or to legally obligate another person, and thereby causes damage to the economically entitled party to the assets. The offense requires that a special duty to protect assets exists and that this duty is violated in an unjustifiable manner. The decisive factor is not every breach of duty, but only a serious abuse of authority that serves to protect the assets of others. The financial loss must be a direct consequence of this abuse. The decisive factor is therefore the breach of duty in handling entrusted decision-making or disposal power.

objective elements of the offence

The objective element of the offense covers exclusively the externally perceptible events. Decisive are the granted authority, its abuse, and the financial loss incurred. Internal processes such as motives or intent remain out of consideration at this level.

The objective element of breach of trust requires that the perpetrator has an authority to dispose of another person’s assets or to obligate another person, and abuses this authority in breach of duty. Unlike fraud, the financial loss does not occur through deception, but through the inadmissible exercise of an existing decision-making or disposal power.

An abuse of authority only exists if the perpetrator violates asset-protecting rules in an unjustifiable manner. Not every breach of duty is sufficient. Required is an objectively serious violation that aims to protect the assets of others.

The financial loss must be an immediate consequence of the abuse of authority. The objective element of the offense is already fulfilled as soon as a financial disadvantage occurs to the economically entitled party through the breach of duty in handling the authority. An actual enrichment of the perpetrator is not required.

Steps of legal assessment

Perpetrator:

The subject of the offense can be any person responsible under criminal law to whom a power of disposal or obligation over assets has been granted. Special personal characteristics are not required, but actual decision-making or representation power is.

Object of the Offense:

The object of the offense is the foreign assets of the economically entitled party, which are damaged by the abuse of authority in breach of duty.

Act:

The act consists of abusing a granted authority, in that the perpetrator violates asset-protecting rules in an unjustifiable manner and thereby causes financial loss.

Result of the Offense:

The result of the offense lies in the occurrence of financial loss, which is directly attributable to the abuse of authority.

Causality:

The financial loss must be a consequence of the action in breach of duty. Without the abuse of authority, the reduction in assets would not have occurred.

Objective Attribution:

The result is objectively attributable if exactly that risk is realized that the criminal norm is intended to prevent, namely that foreign assets are damaged by the exercise of entrusted decision-making or disposal power in breach of duty.

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Distinction from other offences

The offense of breach of trust covers cases in which a person knowingly abuses an authority granted to them over another person’s assets or to legally obligate another person and thereby causes financial loss to the economically entitled party. The focus of the injustice is not in a deception, but in the breach of duty in handling entrusted decision-making or disposal power.

• § 133 of the Criminal Code – Embezzlement: Embezzlement covers cases in which the perpetrator appropriates an entrusted foreign asset. The focus of the injustice lies in the appropriation of foreign assets, i.e., in the fact that the perpetrator treats the asset like an owner and permanently withdraws it from the entitled party. In the case of breach of trust, such appropriation is absent. The perpetrator damages the economically entitled party by unjustifiably abusing an authority granted to them. The decisive factor is not the appropriation of an asset, but the breach of duty in handling entrusted decision-making or disposal power. The decisive factor for the distinction is whether the financial disadvantage arises through the appropriation of entrusted assets or through abuse of authority within an existing power of disposal. If there is an intent to appropriate, breach of trust is regularly excluded.
• § 146 of the Criminal Code – Fraud: In fraud, the financial loss is based on the fact that the victim is induced by deception about facts to take, tolerate, or omit an action that causes financial loss. The victim acts voluntarily, but due to error. In the case of breach of trust, there is no deception of the injured party. Rather, the damage arises because the perpetrator himself acts within his powers, but abuses them in an unjustifiable manner. The decisive factor is therefore not the error of a victim, but the violation of a duty to protect assets.

Concurrences:

Genuine Concurrence:

Genuine concurrence exists if, in addition to the breach of trust, further independent offenses are committed, such as forgery of documents, data forgery, or fraud. The offenses remain side by side, as different elements of the offense and legal interests are affected.

Spurious Concurrence:

Incomplete concurrence exists if another element of the offense completely covers the entire content of injustice of the breach of trust. In this case, § 153 of the Criminal Code is superseded as a subsidiary element of the offense, for example, if the abuse of authority is only an dependent means of committing a more specific offense.

Multiple Offenses:

Multiple offenses exist if several independent abuses of authority are committed, each leading to independent financial losses. Each action constitutes a separate criminal act.

Continued Action:

A single act can be assumed if several actions in breach of duty are closely related in terms of time and subject matter and are supported by a uniform concept of abuse. The act ends as soon as no further abuses of authority causing financial loss occur.

Burden of proof and evaluation of evidence

Public Prosecutor’s Office:

The public prosecutor’s office must prove that the accused has committed a breach of trust. The starting point is the proof that the accused was granted an authority to dispose of another person’s assets or to legally obligate another person, and that he knowingly abused this authority. In addition, it must be proven that the abuse of authority occurred in an unjustifiable manner and led to financial loss for the economically entitled party.

It must be proven, in particular, that

• the accused was granted a power of disposal or obligation over assets,
• this authority was abused in breach of duty and unjustifiably,
• the abuse of authority violated asset-protecting rules,
• financial loss thereby occurred to the economically entitled party,
• a causal connection exists between abuse of authority and financial loss,
• the financial loss was a direct consequence of the action in breach of duty,
• the accused acted knowingly

The public prosecutor’s office must also demonstrate whether scope of authority, limits of decision-making or representation power, asset-protecting rules, unjustifiability of the procedure, financial loss, causality, and knowledge are objectively ascertainable, for example through

• witness statements,
• internal or external communication records such as emails or meeting minutes,
• contracts, powers of attorney, statutes, or other organizational documents,
• accounting documents, payment flows, or asset movements,
• expert opinions on the economic calculation of damages,
• as well as circumstantial evidence of the unjustifiability of the decision or the decision-making process in breach of duty.

Court:

The court examines all evidence in the overall context. It assesses whether, according to objective standards, an authority granted existed, whether this authority was abused in an unjustifiable manner, and whether this abuse causally led to financial loss. In addition, it must be examined whether the knowledge of the abuse of authority can be established beyond doubt.

In doing so, the court takes into account in particular

• Content, scope, and limits of the authority granted,
• Nature and weight of the breach of duty,
• the decision-making process and the economic starting position,
• witness statements on the internal process and the role of the accused,
• contract documents, organizational structures, or internal guidelines,
• whether the behavior was objectively unjustifiable or still within the scope of justifiable freedom of decision,
• whether the financial loss has occurred in an economically comprehensible manner,
• as well as whether a procedure in breach of duty or systematic is recognizable.

The court clearly distinguishes between entrepreneurial misjudgments, justifiable discretionary decisions, mere breaches of duty without the occurrence of damage, as well as cases in which, although a financial disadvantage has occurred, a statutory abuse of authority is not demonstrable.

Accused Person:

The accused person bears no burden of proof. However, she can point out reasonable doubts, especially regarding

• whether a relevant authority existed at all,
• whether the decision was objectively unjustifiable or still justifiable,
• whether a financial loss has actually occurred,
• whether a causal connection exists between action and damage,
• whether the accused acted knowingly in breach of duty,
• whether economic risks or external circumstances caused the damage,
• whether only civil law breaches of duty or questions of liability of company bodies exist,
• as well as in the case of contradictions or gaps in the accusation or in the case of alternative courses of events.

It can also demonstrate that decisions were made factually justified, justifiable, economically comprehensible, or in good faith, or that although a financial disadvantage is claimed, the requirements of breach of trust are not met.

Typical Assessment

In practice, the following evidence is of particular importance in the case of breach of trust:

• witness statements on the decision-making process and internal responsibility,
• internal and external communication records,
• contracts, powers of attorney, company documents, or rules of procedure,
• accounting documents, payment flows, or asset movements,
• expert opinions on the amount of damage and the justifiability of the decision,
• time sequences between decision and occurrence of damage,
• circumstantial evidence for action in breach of duty or systematically unjustifiable,
• as well as documents for the economic assessment of the damage.

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Practical example

• Breach of duty in the disposal of assets within a granted authority: A managing director disposes of company assets and knowingly concludes a contract that contradicts the interests of the company, for example, by purchasing services from a related company at significantly inflated prices. He acts within his formal decision-making authority, but exceeds it in an unjustifiable manner. The financial loss arises directly from the decision in breach of duty. Thus, the element of breach of trust pursuant to § 153 of the Criminal Code is fulfilled.
• Unjustifiable abuse of a power of representation: An authorized administrator does not use funds entrusted to him in accordance with the prescribed rules, but knowingly uses them for purposes that contradict the asset protection of the economically entitled party. Although he is formally authorized to dispose of the funds, he abuses this authority in an unjustifiable manner. The resulting financial disadvantage is a direct consequence of the abuse of authority and constitutes breach of trust under § 153 of the Criminal Code.

These examples illustrate the typical manifestations of breach of trust. Characteristic is that no deception of a victim exists, but that the perpetrator acts within an existing decision-making or disposal power and abuses it in an unjustifiable manner. The focus of the injustice is not in the deception, but in the knowingly unjustifiable abuse of entrusted authorities, which leads to financial loss for the economically entitled party.

subjective elements of the offence

The subjective element of breach of trust requires that the perpetrator acts knowingly. He must know that an authority has been granted to him to dispose of another person’s assets or to legally obligate another person, and that he abuses it in an unjustifiable manner. The knowledge must relate to the abuse of authority, and the perpetrator must recognize that his actions are damaging to assets or at least accepts the financial loss as a necessary consequence of his actions.

The perpetrator must recognize that his behavior violates asset-protecting rules and is suitable to damage the economically entitled party to the assets. It is sufficient that he recognizes the financial disadvantage as a certain or at least necessary consequence of his actions. A merely negligent misconduct or a mere possibility is not sufficient.

An intent to enrich oneself is not required for breach of trust. The perpetrator must neither enrich himself nor strive for a financial advantage. The decisive factor is solely that he knowingly brings about the abuse of authority and the resulting damage to assets.

A subjective element is absent if the perpetrator in good faith assumes to act justifiably, does not recognize the occurrence of financial loss, or if he acts wrongfully, but not knowingly to the detriment of assets. In these cases, the knowledge required for § 153 StGB is missing.

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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 generally possible in cases of breach of trust, as it is a financial crime without violence or dangerous threats. Whether a diversionary settlement is considered depends largely on the extent of guilt, amount of damage, type of abuse of authority, and the perpetrator’s behavior.

A diversion may be appropriate, especially in the case of simply structured breaches of trust with minor financial damage, no prior criminal record, and full compensation for damages. With increasing amount of damage, unjustifiability of the action, or multiple breaches of duty, the probability of a diversionary settlement decreases significantly.

Diversion may be considered if

• the guilt is altogether minor,
• there is no significant amount of damage,
• the damage to property was minor and completely compensated,
• there is no planned or continuous abuse of authority,
• the facts of the case are clear and manageable,
• and the perpetrator is remorseful, cooperative, and willing to make amends.

If a diversion is considered, the court may order monetary payments, community service, supervision orders, or victim-offender mediation. A diversion leads to no conviction and to no entry in the criminal record.

Exclusion of Diversion:

Diversion is excluded if

• the breach of trust was committed in a planned, systematic, or continuous manner,
• a significant financial loss has occurred,
• there are multiple independent abuses of authority,
• the abuse of authority occurred in a particularly unjustifiable manner,
• particular aggravating circumstances are added,
• or the overall behavior constitutes a significant impairment of the assets of others.

A diversionary settlement is realistically considered only in cases of minor guilt, manageable damage, and early full restitution. In practice, diversion in cases of breach of trust is possible, but not automatic, but always an individual case decision.

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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 abuse of authority, and how severely the assets of the beneficial owner were impaired. Of particular importance is how unjustifiable, purposeful, or repeatedly the perpetrator has abused his granted authority and whether the breach of duty has led to a noticeable impairment of assets. It must also be taken into account whether the perpetrator acted by exploiting a special relationship of trust, within an elevated position, or in conscious disregard of asset-protecting rules.

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 breach of duty,
• active and complete efforts at reparation,
• special stress or overstrain situations for the perpetrator,

A conditional remission of the prison sentence is generally considered in cases of breach of trust, but is to be assessed restrictively, as the offense requires a knowingly committed abuse of authority. The decisive factor is whether, despite the breach of duty, there is a positive social prognosis and the specific case is in the lower range of guilt and injustice, for example, in the case of minor damage and early full compensation for damages.

Penalty Range

The breach of trust is punishable by imprisonment of up to six months or a fine of up to 360 daily rates.

If the financial damage caused exceeds € 5,000, the penalty increases to imprisonment of up to three years. In the case of damage of more than € 300,000, the penalty is imprisonment from one to ten years.

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 breach of trust, the fine is expressly provided for by law and is often imposed as a main penalty, especially in cases of minor damage and low guilt, while with increasing damage, the imprisonment comes to the fore.

Imprisonment and (partially) suspended sentence

§ 37 StGB: If the statutory penalty extends up to five years, the court may, under the statutory conditions, impose a fine instead of a short prison sentence of no more than one year. This provision is generally applicable to breach of trust, as the penalty ranges from up to six months under paragraph 1 and up to three years under paragraph 3 in qualified cases of damage. In practice, § 37 StGB is mainly applied when a short prison sentence would be appropriate to the guilt, but the overall picture of the offense is to be classified as less serious. It is not an independent fine threat, but a substitute form for short prison sentences.

§ 43 StGB: A conditional remission of the prison sentence is possible if the imposed sentence does not exceed two years and a positive social prognosis exists. In the case of breach of trust, this possibility is particularly relevant in practice in the case of minor or balanced damage, one-time abuse of authority, and lack of relevant prior convictions. The decisive factor is whether, despite the knowingly committed breach of duty, it can be assumed that the perpetrator will not commit any further property offenses in the future.

§ 43a 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 breach of trust, this form can become important if the offense goes beyond a trivial case, for example, in the case of higher damage or multiple breaches of duty, but no particularly aggravating circumstances exist and a favorable social prognosis continues to exist.

§§ 50 to 52 of the Criminal Code: The court may issue instructions and order probation assistance. In the case of breach of trust, these often concern measures for compensation for damages, for financial order, or for stabilizing economic and professional circumstances. The aim is to prevent further abuse of authority and to achieve a sustainable change in behavior that is compliant with the law.

Jurisdiction of the courts

Subject-matter Jurisdiction

In the case of simple breach of trust with a penalty of up to six months imprisonment or a fine, the proceedings are conducted before the district court. The decision is made by a single judge.

If the financial damage caused reaches more than € 5,000, the penalty increases to up to three years imprisonment. In these cases, the regional court is responsible as a single judge.

If there is a particularly high financial damage of more than € 300,000, the penalty is one to ten years imprisonment. Then the regional court decides as a court of lay assessors, i.e., with a professional judge and lay assessors.

Proceedings before a jury court are not considered in cases of breach of trust.

Local Jurisdiction

In principle, the court in whose district the breach of duty was committed is responsible, i.e., where the power of decision or disposal was abused.

If this place cannot be clearly determined, the court is regularly responsible at the

• residence or domicile of the accused person or
• seat of the competent public prosecutor’s office.

Hierarchy of Courts

Judgments of the district court can be appealed by appeal. The regional court decides on this.

Judgments of the regional court are subject to appeal and, if applicable, further legal remedies, on which the higher regional court or the supreme court decides.

It is examined whether the proceedings were conducted properly, the law was correctly applied, and the decision was made in a legally sustainable manner.

Civil claims in criminal proceedings

In the case of breach of trust pursuant to § 153 StGB, the economically injured party can assert his civil law claims as a private party directly in the criminal proceedings. Since the breach of trust is based on a knowingly wrongful abuse of a granted power of decision or disposal, the claims relate in particular to financial disadvantages that result directly from this abuse of authority.

In particular, amounts of money, misdirected payments, asset shifts, unlawful obligations, or other financial disadvantages that have arisen as a result of the wrongful exercise of authority can be asserted. The decisive factor is that the damage is a direct consequence of the abuse of the granted asset responsibility.

Depending on the facts, consequential damages can also be claimed for compensation, for example, if the abuse of authority has resulted in economic disadvantages, liquidity bottlenecks, or operational damage.

The private party connection suspends the statute of limitations of the asserted claims for the duration of the criminal proceedings. Only with its legally binding conclusion does the limitation period begin to run again, unless the damage has already been awarded.

A voluntary compensation, such as the repayment of embezzled amounts, the compensation of the damage incurred, or a serious effort to compensate, can have a mitigating effect, provided that it is done in a timely and complete manner.

However, if the breach of trust was committed in a planned manner, repeatedly, or under a particularly serious abuse of a relationship of trust, or if significant financial damage was caused, a later compensation for damages regularly loses part of its mitigating effect. In such cases, a subsequent settlement can only partially compensate for the injustice of the act.

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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 short explanation is sufficient: “I am exercising my right to remain silent and will speak to my defense counsel first.” This right applies from the first interrogation by the police or public prosecutor’s office.
2. Contact defense immediately.No statement should be made without access to the investigation files. Only after reviewing the files can the defense assess which strategy and which securing of evidence make sense.
3. Secure evidence immediately.You should secure all available documents, messages, photos, videos, and other records as early as possible and keep a copy. Digital data should be regularly backed up and protected against subsequent changes. Note important people as possible witnesses and record the course of events in a memory log as soon as possible.
4. Do not contact the opposing party. Your own messages, calls or posts can be used as evidence against you. All communication should take place exclusively through the defense.
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 the case of house searches or seizures, you should request a copy of the order or record. Note the date, time, persons involved and all items taken.
7. If arrested: no statements on the matter.Insist on immediate notification of your defense counsel. Pre-trial detention may only be imposed if there is urgent suspicion and an additional reason for detention. Less severe measures (e.g., promise, reporting requirement, contact ban) take precedence.
8. Prepare compensation in a targeted manner.Payments, symbolic services, apologies, or other settlement offers should be handled and documented exclusively through the defense. A structured compensation can have a positive effect on diversion and sentencing.

Your Benefits with Legal Assistance

The legal assessment of the breach of trust depends largely on the specific scope of the granted authority, its unjustifiable abuse, the financial damage incurred, and the knowledge of the action. Even minor deviations in the facts can determine whether a punishable breach of trust actually exists, only a civil law breach of duty exists, or, in the absence of knowledge, unjustifiability, or financial damage, no criminal liability exists at all.

An early legal support ensures that the facts are precisely classified, evidence is critically assessed, and exculpatory circumstances are processed in a legally usable manner before incriminating assumptions solidify in the proceedings.

Our law firm

• examines which powers were actually granted and whether these were exceeded at all in the specific case,
• analyzes whether there is an unjustifiable violation of asset-protecting rules or merely a business error of judgment, exercise of discretion, or organizational issue,
• assesses the evidence regarding financial damage, causality, and knowledge of the action,
• clarifies whether the alleged damage has actually occurred, is arithmetically comprehensible, and legally attributable,
• develops a clear defense strategy that presents the economic background, decision-making processes, and actual course of events in a legally precise and comprehensible manner.

As a representation specialized in criminal law, we ensure that an accusation of breach of trust is carefully examined and that the proceedings are conducted on a sustainable factual and legal basis, with the aim of limiting or completely averting criminal risks at an early stage.

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FAQ – Frequently Asked Questions

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