Deception

Deception according to § 108 StGB requires that a person knowingly asserts false facts or conceals correct facts in order to create an incorrect idea in the other person. This deception must induce the victim to take an action, toleration or omission, through which it is harmed in its own rights. Only individual rights are protected, sovereign rights are expressly not included. Prosecution only takes place if the person concerned grants the necessary authorisation.

objective elements of the offence

The objective element of § 108 StGB Deception covers any externally recognizable behavior by which a person is misled about facts and, as a result of this deception, sets an action, toleration or omission that violates their own rights and causes damage. The freedom to make decisions in one’s own legal area on the basis of correct factual information is protected. The overall picture of the misleading influence is decisive, not the subjective motivation of the perpetrator. The victim does not have to actively intend the damage; it is sufficient that the deception objectively leads to or enables the violation of rights. Sovereign rights are not among the protected legal positions of § 108 StGB.

Steps of legal assessment

Perpetrator:

The subject of the act can be any person who creates an incorrect idea through knowingly untrue statements or by concealing essential facts. A special relationship between perpetrator and victim is not required. The decisive factor is that the deceptive behavior remains objectively attributable to the perpetrator.

Object of the Offense:

The object of the act is any person whose individual rights are impaired by a behavior triggered by deception. In particular, the self-determination over one’s own legal positions, be it contractual, private or personality-related, is protected. Sovereign rights are expressly not included.

Act:

The act is the heart of the offense. § 108 StGB requires a deception about facts that triggers a false representation of facts in the victim or prevents a correct one. The act must move the victim to a decision that interferes with his own rights and causes damage. The standard includes two basic forms:

• the active deception, for example through untrue factual assertions, and
• the deception-relevant omission, in particular the concealment of information essential to the decision in the case of existing disclosure obligations.

Both variants require that the generated misrepresentation forms the decision-leading element for the later violation of rights.

Result of the Offense:

The success of the act consists in the damage to a subjective right of the victim. A financial loss is not mandatory. Any legally relevant impairment, such as the loss of a claim, the assumption of an obligation or the restriction of an existing legal position, is covered. An actual damage realization is required; a mere endangerment is not sufficient.

Causality:

Causal is any behavior without which the deception would not have become effective or without which the damaging decision of the victim would not have been made. The deception must at least be the contributing cause of the violation of rights. Multi-stage processes are included, as long as the misleading information contributes significantly to the damage.

Objective Attribution:

The violation of rights is objectively attributable if the perpetrator has created or increased a legally disapproved danger through the deception and this danger is specifically realized in the damaging decision of the victim. Not covered are completely atypical processes, spontaneous autonomous self-harm without reference to the deception or decisions that completely detach themselves from the deception.

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Distinction from other offences

The element of deception according to § 108 StGB covers behaviors by which a person is induced by an incorrect representation of facts to a behavior that violates their own rights and causes damage. The focus is on the false factual information, which triggers a legally disadvantageous decision. The injustice does not arise from the behavior itself, but from the misleading influence on the freedom of decision and the resulting violation of rights.

• § 105 StGB – Coercion: Coercion requires exertion of force, i.e. forcing a certain behavior by violence or threat. § 108 StGB, on the other hand, is based on deception as a manipulative influence, which makes the victim act mistakenly voluntarily. Both offenses can exist side by side if deception and pressure are used in parallel, for example if a false factual assertion is additionally associated with a threatening consequence.
• § 146 StGB – Fraud: Fraud is also based on deception, but its focus is on damage to property. § 108 StGB, on the other hand, protects any individual subjective right, even if no asset is affected. The delimitation takes place according to the protective purpose: If there is an economic disadvantage, § 146 StGB is regularly applicable; if it concerns the loss or impairment of other individual rights, § 108 StGB remains applicable. In some cases, deception can function as a catch-all offense if no asset component can be proven.

Concurrences:

Genuine Concurrence:

Genuine concurrence exists if further independent offenses are added to the deception, such as coercion, dangerous threat, suppression of documents, misuse of computer or communication data, or property offenses, provided that the property reference does not determine the sole offense. The deception according to § 108 StGB does not displace these offenses, but regularly stands independently next to them, provided that the violation of rights relates to rights other than property rights.

Spurious Concurrence:

A displacement due to specialty is only given if another norm completely covers the entire injustice of the deception. This is particularly the case with fraud offenses, special statutory disclosure obligations, data protection information obligations or missing asset components. Conversely, § 108 StGB itself can develop specialty if it is exclusively about non-property-related violations of rights that are triggered by deception.

Multiple Offenses:

Multiple acts exist if the perpetrator brings about several deception-related decisions or deceives in temporally independent processes that are not part of a uniform process. Each deception-related violation of rights forms its own act, provided that there is no uniform set of facts.

Continued Action:

A uniform act is to be assumed if the perpetrator continuously deceives in order to achieve a uniform purpose, such as the continuous obtaining of a legal advantage or the permanent maintenance of a misleading factual situation. The act ends as soon as the deception no longer continues to have an effect or the incorrect idea is no longer maintained.

Burden of proof and evaluation of evidence

Public Prosecutor’s Office:

The public prosecutor’s office must prove that the accused has induced a person by deception about facts to take an action, toleration or omission that violates their own rights and has caused damage. Decisive is the proof of a concrete misleading factual situation, which was the cause for the later decision of the victim. It is not about mere ambiguities or evaluations, but about objectively false or incomplete factual assertions that have led to a legally relevant incorrect decision.

It must be proven, in particular, that

• an incorrect representation of facts was caused in the victim,
• this misrepresentation was causal for the decision,
• the decision caused a violation of rights of the victim,
• the deception is objectively attributable to the accused.

The public prosecutor’s office must also demonstrate that the individual actions belong together and form a recognizable stalking pattern.

Court:

The court examines all evidence in the overall context and assesses whether the behavior was suitable according to objective standards to create a decision-relevant misrepresentation in the victim, which led to a violation of rights. The focus is on the question of whether the deception in the overall picture represents a legally significant influence on the freedom of decision.

In doing so, the court particularly considers:

• Type and content of the factual assertions made,
• whether the information was objectively false or incomplete,
• whether the victim was allowed to trust it,
• what role the deception played for the later action,
• whether a reasonable average person would also have reacted to the deception under the same circumstances.

The court clearly distinguishes it from misunderstandings, isolated incidents, or socially customary contacts.

Accused Person:

The accused person bears no burden of proof. However, they can raise reasonable doubts, particularly regarding

• the question of whether there was actually a false factual assertion,
• whether the alleged deception was causal for the decision of the victim,
• whether the victim could have informed himself in a reasonable way,
• Contradictions or missing evidence in the presentation of the events.

It can also demonstrate that certain occurrences were accidental, short-term, not intended for public, or misleading.

Typical Assessment

In practice, the following evidence is particularly important in § 108 StGB:

• secured messages, e-mails or written declarations with concrete factual assertions,
• Documents from which the objective falsehood of the information emerges,
• Documents on the legal position that was impaired by the deception-related decision,
• Witness statements on the information situation and decision-making of the victim,
• Technical or written communication evidence on the chronological sequence,
• if necessary, technical documents that clarify that the false factual assertion was decision-relevant.

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Practical example

• Deception regarding alleged contractual terms: The offender deliberately provides the victim with false information about the content of an existing contract, for example, by claiming that an additional payment is mandatory or that a specific service must be accepted. The victim relies on this incorrect factual assertion and takes an action that impairs their own rights, for example, by making a payment or issuing a legally disadvantageous statement. The deception concerns the individual legal sphere and leads to a clearly recognizable violation of rights.
• Deception through deliberately false representation of facts: Over a longer period, the offender repeatedly describes a non-existent dangerous situation or asserts the existence of certain facts that are objectively false, such as alleged official requirements or purported legal obligations. The victim then makes several decisions that worsen their legal position, such as refraining from asserting a claim to which they are entitled or entering into an unnecessary obligation. Despite being informed of existing doubts, the offender deliberately maintains the false representation.

These examples show that deception according to § 108 of the Austrian Criminal Code exists when someone, through incorrect factual assertions, triggers decisions that violate the victim’s own rights.

subjective elements of the offence

The subjective element of § 108 StGB requires an extended intent. The perpetrator must know that his information is objectively false or incomplete and is suitable to create an incorrect idea in the victim. At the same time, he must intentionally aim at that the victim, based on this misrepresentation, sets an action, toleration or omission that violates his own rights.

The perpetrator must therefore understand that his statements in the overall picture represent a targeted deception and are typically suitable to trigger a legally disadvantageous decision. The decisive factor is that the damage in the legal sphere of the victim is intended; mere acceptance is not sufficient.

No subjective element exists if the perpetrator seriously believes that his statements are accurate, meaningless or without legal consequences. Anyone who assumes that the victim will not make a disadvantageous decision as a result does not meet the requirements of § 108 StGB.

Ultimately, anyone who knows and consciously aims at that his false factual assertions induce the victim to a behavior that impairs his own legal position acts intentionally.

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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 the case of deception. The offense protects the assets from damaging errors and the weight of the guilt depends above all on the extent of the deception, the amount of the damage and the personal responsibility of the perpetrator. In cases of low damage amount, clear insight and lack of prior convictions, a diversionary settlement is regularly examined in practice.

However, the clearer a systematic, manipulative or repeated deceptive behavior is recognizable or the higher the caused property damage turns out, the more unlikely a diversion becomes.

Diversion may be considered if

• the guilt is low,
• the caused or threatening damage is minor or lies at the lower limit of the punishable property offense,
• the victim was not permanently or only slightly impaired economically,
• no systematic or continuous deception pattern existed,
• the facts are clear, manageable, and unambiguous,
• and the perpetrator is immediately insightful, cooperative and ready for reconciliation.

If diversion is considered, the court can order monetary payments, community service, supervisory instructions, or victim-offender mediation. Diversion leads to no conviction and no criminal record entry.

Exclusion of Diversion:

Diversion is excluded if

• a significant or existence-threatening property damage has occurred,
• the deception was built up purposefully, systematically or manipulatively,
• several persons were harmed or there was a wide distribution of the deception,
• a systematic or long-term continued deceptive behavior exists,
• particularly worthy of protection or personal data were exploited for deception,
• the behavior had qualified consequences, such as a massive economic or psychological burden on the victim,
• or the overall behavior represents a serious violation of personal integrity or economic freedom of action.

Only in the case of clearly the slightest guilt and immediate insight can it be examined whether an exceptional diversionary approach is permissible. In practice, diversion remains possible in the case of deception, but is rare in systematic or damage-intensive cases.

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Sentencing and consequences

The court measures the penalty according to the extent of the deception, according to duration and intensity of the deceptive behavior and according to how strongly the caused or threatening property damage has actually affected the victim. The decisive factor is whether the perpetrator has acted repeatedly, purposefully or systematically over a longer period of time and whether the behavior has caused a sustained economic burden or restriction of the way of life.

Aggravating Factors Exist in Particular If

• the deception was continued over a longer period of time,
• a systematic or particularly persistent deception pattern existed,
• the victim was significantly economically impaired,
• data worthy of protection or personal data were exploited for deception,
• continued to be deceived despite clear indications or requests,
• a significant psychological burden has occurred due to the loss of assets,
• or relevant prior convictions exist.

Mitigating Factors Include

• a clean record,
• a full confession and recognizable insight,
• an immediate cessation of the deceptive behavior,
• active restitution efforts or rapid damage coverage,
• Particular psychological stress on the perpetrator,
• or an excessively long duration of proceedings.

The court may conditionally suspend a prison sentence if it does not exceed two years and the perpetrator has a positive social prognosis.

Penalty Range

The deception is threatened with imprisonment of up to one year or a fine of up to 720 daily rates. This penalty framework applies to all cases of deception and forms the legal upper limit. The law does not provide for a higher penalty.

A subsequent apology, reparation for damages, or voluntary cessation of the behavior do not alter the statutory penalty framework. Such circumstances are exclusively considered within the scope of sentencing.

Deception is also considered an authorization offense. This means that prosecution can only be initiated if the victim explicitly declares a wish for prosecution. Without this authorization, the proceedings will not be conducted.

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 day-fines – at least 4 euros, at most 5,000 euros 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 cases of deception, a monetary penalty is primarily considered if the caused or impending financial damage is minor and the conduct falls within the lower bounds of culpability.

Imprisonment and (partially) suspended sentence

Section 37 of the Criminal Code: If the statutory penalty extends up to five years, the court may instead of a short custodial sentence of up to one year impose a monetary penalty. This option also applies to offenses whose basic elements provide for a monetary penalty or custodial sentence of up to one year. In practice, Section 37 of the Criminal Code is applied cautiously if the conduct was particularly burdensome, premeditated, or associated with significant financial damage. However, in less serious cases, Section 37 of the Criminal Code can certainly be invoked.

Section 43 of the Criminal Code: A custodial sentence can be conditionally suspended if it does not exceed two years and the offender has a positive social prognosis. This option also applies to offenses with a basic penalty framework of up to one year. Conditional suspension is granted more cautiously if aggravating circumstances exist or if the deception has caused a significant economic disadvantage. It is particularly realistic if the conduct is less severe, arose situationally, or if the victim has suffered no lasting damage.

Section 43a of the Criminal Code: Partial conditional suspension allows for a combination of an unconditional and a conditionally suspended part of a custodial sentence. It is possible for sentences exceeding six months and up to two years. Since in more serious deception scenarios, sentences in the upper range of the penalty framework can be imposed, Section 43a of the Criminal Code is regularly considered. However, in cases with particularly serious circumstances, significant damage, or premeditated action, it is applied noticeably more cautiously.

Sections 50 to 52 of the Criminal Code: The court may additionally issue directives and order probation assistance. Particularly considered are reparation for damages, counseling or therapy programs, contact bans, or other measures for behavioral change. The goal is stable legal rehabilitation and the prevention of further criminal acts. Special attention is paid to the protection of the economically harmed victim and the mandatory prevention of further deception-related actions.

Jurisdiction of the courts

Subject-matter Jurisdiction

For deception, due to the penalty framework of up to one year imprisonment or up to 720 daily rates of monetary penalty, the District Court is generally responsible. Offenses with such a low penalty fall under the first-instance decision-making competence of the District Courts according to statutory regular jurisdiction.

Since deception does not have an increased penalty framework and no qualified variants with a higher penalty, there is no scope for the Regional Court as a single judge. A lay assessors’ court is also not an option, as a higher penalty would be legally required for that.

A jury court is excluded, as deception does not allow for a life sentence, and thus the legal requirements are not met.

Local Jurisdiction

The court of the place of the offense is competent. Particularly relevant is

• where the deceptive act was committed,
• where the error was induced or maintained,
• where the financial damage occurred,
• or where supplementary actions essential to the deception were taken.

If the place of the offense cannot be clearly determined, the jurisdiction is based on

• 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

An appeal to the Regional Court is possible against judgments of the District Court. The Regional Court decides on guilt, punishment, and costs as the appellate court.

Decisions of the Regional Court can subsequently be challenged by appeal on points of nullity or further appeal to the Supreme Court, provided that the legal requirements are met.

Civil claims in criminal proceedings

In cases of deception, the victim themselves or close relatives, as private parties, can assert civil claims directly in criminal proceedings. Since the act regularly causes a financially damaging error, in particular, compensation for incurred damage, reimbursement of consequential costs, lost profits, and other financial disadvantages are at stake. Depending on the case, expenses for consultation, credit information, account security, or comparable damage items may also be claimed.

The private party joinder suspends the statute of limitations for all asserted claims as long as the criminal proceedings are pending. Only after a legally binding conclusion does the limitation period begin to run again, insofar as the claim has not been fully awarded.

Voluntary reparation for damages, such as a sincere apology, financial compensation, or active support for the affected person, can have a mitigating effect on the sentence, provided it is timely, credible, and complete.

However, if the perpetrator has committed deceptive acts systematically, repeatedly, or over a longer period, caused significant financial damage, or brought the victim into a particularly distressing economic crisis, a later reparation generally largely loses its mitigating effect. In such constellations, a subsequent compensation cannot decisively relativize the committed wrong.

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Overview of criminal proceedings

• tart of investigation: formal suspect status upon concrete suspicion; from that point onward, full rights of the accused apply.
• Police / Public Prosecutor: the public prosecutor directs the proceedings, the criminal police conduct the investigation; objective: dismissal of the case, diversion, or indictment.
• Interrogation of the accused: prior instruction on rights; involvement of a defense attorney leads to postponement; right to remain silent remains unaffected.
• Access to the case file: available at the police, public prosecutor’s office, or court; also includes evidence items (insofar as the purpose of the investigation is not jeopardized).
• Main hearing: oral taking of evidence and judgment; decision on civil claims joined to the criminal proceedings.

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.
   Obtain medical reports; take photographs with date and scale and, where appropriate, X-ray or CT images. Store clothing, objects, and digital records separately. Prepare a witness list and contemporaneous recollection notes within two days at the latest.
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 compensation for damages strategically.
   Payments or offers of reparation should be handled and documented exclusively through defense counsel. Structured compensation for damages has a positive effect on diversion and sentencing.

Your Benefits with Legal Assistance

Cases of deception involve infringements on the financial sphere, economic freedom of decision, and often a person’s trust. Crucial is whether the act was actually capable of inducing or maintaining an error and thereby triggering a financially damaging decision. Even small differences in the process, clarity of communication, information available, or the personal situation of those involved can significantly alter the legal assessment.

Early legal representation ensures that all relevant actions, communications, payment flows, agreements, and reactions are correctly documented, statements are properly classified, and both incriminating and exculpatory circumstances are carefully examined. Only a structured analysis reveals whether a criminal deception actually exists or whether individual processes were misunderstood, incompletely presented, or placed in an incorrect economic context.

Our law firm

• examines whether the conduct actually reaches the statutory threshold of deception,
• analyzes messages, contract procedures, payment flows, and decision-making bases for contradictions or ambiguities,
• protects you from hasty assessments, one-sided representations, or incomplete facts,
• and develops a clear defense strategy that comprehensibly presents the actual economic process.

As specialists in criminal law, we ensure that the accusation of deception is legally precisely examined and that the proceedings are conducted on a complete and balanced factual basis.

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FAQ – Frequently Asked Questions

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