Embezzlement

According to § 133 StGB, embezzlement occurs when someone uses an asset that has been knowingly entrusted to them for themselves or for another person, even though they were only allowed to keep it safe or use it in the interest of another. The asset is already lawfully in their possession, for example, because it was handed over or entrusted for care. The punishable act is not the taking, but the breach of trust, because the asset is used contrary to the agreed purpose for their own assets or those of a third party. The legislator considers this behavior to be particularly serious, as an existing relationship of trust is deliberately exploited.

Embezzlement means that an entrusted asset is intentionally used for oneself or for a third party, thereby abusing the trust placed in them.

Embezzlement explained in Austria. Definition, requirements, distinctions, and penalties according to § 133 of the Criminal Code (StGB).
Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys
„Embezzlement does not begin with access to someone else’s assets, but with the abuse of a trust that has been knowingly granted.“

objective elements of the offence

The objective element of § 133 StGB describes the external requirements that must be met for embezzlement to exist. It is about what actually happened to the asset, not what the perpetrator thought or intended. What is decisive is that an asset was entrusted and this asset is used or retained in breach of duty.

It is essential that the asset is already lawfully under the perpetrator’s control. The entitled party has knowingly left the asset to the perpetrator, for example, for safekeeping, administration, or use for a specific purpose. The objective element is fulfilled if the perpetrator uses this asset contrary to the agreed or expected purpose for themselves or for a third party and thereby visibly withdraws it from the foreign assets.

§ 133 StGB thus protects foreign assets from the abuse of trust. The decisive factor is the actual handling of the entrusted asset, which shows that the trust of the entitled party has been violated.

Qualifying circumstances

Qualified embezzlement exists if the value of the embezzled asset exceeds certain value limits. If the value of the asset exceeds 5,000 euros, the penalty is significantly increased. If the value is more than 300,000 euros, there is a particularly serious form of embezzlement, which is punishable by a long prison sentence.

The value qualification is based exclusively on the objective financial loss. The decisive factor is the objective value of the asset at the time of appropriation, not a later proceeds or an individual benefit of the perpetrator.

Steps of legal assessment

Perpetrator:

The subject of the offense can be any person who is criminally responsible, to whom an asset has been entrusted and who appropriates this asset in breach of duty. Personal characteristics of the perpetrator are generally irrelevant for the offense.

Object of the Offense:

The object of the offense is any entrusted asset with asset value. This includes physical objects, amounts of money, and other economically valuable assets. The decisive factor is that the asset was not left to the perpetrator for free disposal, but only for a specific purpose.

Act:

The act consists of the appropriation of the entrusted asset. This exists if the perpetrator treats the asset as their own entitled party, for example, through consumption, transfer, sale, or other final withdrawal from the assets of the entitled party. A formal transfer of ownership is not required.

Result of the Offense:

The result of the offense is that the asset is withdrawn from the assets of the entitled party and economically assigned to the perpetrator or a third party. The final misappropriation is sufficient, even if the asset is not used further later.

Causality:

The financial disadvantage must be attributable to the perpetrator’s act of appropriation. Without the behavior in breach of duty, there would have been no loss of economic control.

Objective attribution:

The result is objectively attributable if exactly the risk is realized that § 133 StGB is intended to prevent, namely that an entrusted asset is withdrawn from the assets of the entitled party in violation of an existing relationship of trust.

Rechtsanwalt Peter Harlander Peter Harlander
Harlander & Partner Rechtsanwälte
„What is decisive is not how an entrusted asset should be used, but how it was actually used and whether this changed the asset allocation to the outside world.“
Select Your Preferred Appointment Now:Free initial consultation

Distinction from other offences

The offense of embezzlement according to § 133 StGB covers cases in which an asset is already lawfully under the perpetrator’s control and the perpetrator uses this asset in breach of duty for themselves or a third party. The decisive factor is the abuse of an existing relationship of trust, not the way in which the perpetrator came into possession of the asset. The focus is on the misappropriation of an entrusted asset and the resulting externally recognizable change in the asset allocation.

Concurrences:

Genuine concurrence:

Genuine concurrence exists if further independent offenses are added to the embezzlement, such as fraud, forgery of documents, or breach of trust against various asset holders. The injustice of the embezzlement remains independent, because in addition to the breach of trust, further legal interests are violated. The offenses then stand side by side.

Spurious Concurrence:

A non-genuine concurrence comes into consideration if another offense already completely covers the entire injustice of the embezzlement. This is particularly relevant if a more specific asset offense completely includes the breach of trust. In these cases, the embezzlement recedes, because no additional core of injustice remains.

Plurality of acts:

Plurality of acts exists if several acts of embezzlement are committed independently, for example, in the case of appropriations separated in time or in the case of different entrusted assets. Each appropriation in breach of duty constitutes a separate act, provided that there is no close connection.

Continued action:

A continued action can be assumed if several appropriations are closely related in time and are supported by a uniform intention to commit the act, for example, in the case of repeated access to entrusted assets within the framework of the same plan. The act ends as soon as no further appropriations take place or the perpetrator abandons their intention.

Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys
„The criminal classification does not depend on the label of the legal relationship, but on whether a specific entrusted asset was withdrawn from the foreign assets for a purpose other than that intended.“

Burden of proof and evaluation of evidence

Public prosecutor’s office:

The public prosecutor’s office must prove that embezzlement exists, i.e. that an asset was entrusted and was appropriated in breach of duty. What is decisive is not a removal, but that the asset was already lawfully with the accused and was used contrary to the agreed purpose. In addition, for higher amounts, the value of the asset must be determined, as the penalty depends on this.

It must be proven, in particular, that

Contracts, invoices, accounting documents, account statements, witness statements, e-mails, or other documents from which trust, earmarking, and use result serve as evidence.

Court:

The court assesses all evidence in the overall context and examines whether it is shown according to objective standards that an entrusted asset was appropriated in breach of duty. The focus is on the question of whether the behavior of the accused visibly represents a breach of trust and has led to an unlawful shift in assets.

In doing so, the court particularly considers:

To be distinguished are mere administrative errors, misunderstandings, late returns, or civil law disputes, in which there is no breach of trust relevant under criminal law.

Accused person:

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

It can demonstrate that the behavior is explicable under civil law, misleading, or not to be regarded as appropriation.

Typical Assessment

In practice, the following evidence is particularly important in embezzlement cases:

Rechtsanwalt Peter Harlander Peter Harlander
Harlander & Partner Rechtsanwälte
„In embezzlement proceedings, a single document rarely decides, but rather the overall picture of trust, earmarking, and actual use.“
Select Your Preferred Appointment Now:Free initial consultation

Practical example

These examples show that embezzlement according to § 133 StGB exists if entrusted assets are used or passed on contrary to their intended purpose. The decisive factor is the externally recognizable breach of trust, not the duration of use or a later intention to return.

subjective elements of the offence

The subjective element of embezzlement under § 133 StGB requires intent and intent to enrich oneself. The perpetrator must know that an asset has been entrusted to them and that this asset does not belong to them, but that they only hold it for a specific purpose or in the interest of another. They must recognize that they are not free to dispose of it.

The intent must relate to the fact that the perpetrator uses the entrusted asset in breach of duty for themselves or for a third party and thus consciously changes the asset allocation. It is sufficient if the perpetrator seriously considers it possible and willingly accepts that they are adding the foreign asset to their own assets or those of a third party through their behavior. A special intention is not required, conditional intent is sufficient.

In addition, § 133 StGB requires an intent to enrich oneself. The perpetrator must at least willingly accept to obtain an unlawful financial advantage for themselves or a third party, for example, by retaining, using, passing on, or exploiting the entrusted asset. The decisive factor is that the perpetrator knows or accepts that this advantage is not legally entitled to them.

In the case of the value-qualified forms of embezzlement, the intent must also extend to the value of the asset. The perpetrator must at least expect and accept that the value exceeds the relevant limit of 5,000 euros or, if applicable, 300,000 euros. It is sufficient if they seriously consider the higher value possible. On the other hand, anyone who seriously assumes that the asset is significantly below the value limit does not subjectively realize the qualified form.

There is no subjective element if the perpetrator in good faith assumes to be entitled to use the asset, if they assume an effective consent of the entitled party, or if they seriously believe to use the asset within the framework of the agreed purpose. Likewise, the intent is missing if the perpetrator does not even willingly accept the enrichment or the relevant value.

Select Your Preferred Appointment Now:Free initial consultation

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 not excluded in the case of embezzlement under § 133 of the Criminal Code, but is considered with restraint. The offense requires a deliberate breach of trust, as an entrusted asset is misappropriated in breach of duty. This is regularly associated with an increased injustice, which only allows a diversionary settlement to a limited extent.

In cases in which the value of the embezzled property is low, the perpetrator is a first-time offender, acts with insight, and the damage caused is quickly and fully compensated, a diversion can nevertheless be considered. As the amount of damage increases, especially when the statutory value limits are exceeded, and in the case of a targeted or prolonged approach, the probability of a diversionary settlement decreases significantly.

Diversion may be considered if

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

Exclusion of Diversion:

Diversion is excluded if

Only in the case of clearly minor guilt, rapid compensation for damages and clear insight can it be examined in individual cases whether an exceptional diversionary procedure is permissible. In practice, diversion in the case of § 133 of the Criminal Code is possible, but strictly limited and strongly dependent on the specific circumstances of the individual case.

Sentencing and consequences

The court assesses the penalty according to the extent of the financial intervention, the nature, duration and intensity of the breach of duty, and the extent to which the abuse of the entrusted property has impaired the economic position of the entitled party. The decisive factor is whether the perpetrator acted in a targeted, planned or repeated manner and whether the behavior has caused a noticeable financial disadvantage.

Aggravating Factors Exist in Particular If

Mitigating Factors Include

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

Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys
„Diversion is not automatic. Planned action, repetition, or noticeable financial damage often preclude a diversionary settlement in practice. “
Select Your Preferred Appointment Now:Free initial consultation

Penalty Range

Embezzlement under § 133 para. 1 of the Criminal Code forms the basic offense. It exists if an entrusted asset is intentionally misappropriated in order to unlawfully enrich oneself or a third party. The statutory penalty is imprisonment for up to six months or a fine of up to 360 daily rates.

If the value of the embezzled property exceeds €5,000, the value qualification of § 133 para. 2 first case of the Criminal Code applies. In these cases, the penalty is increased to imprisonment for up to three years. Only the objective value of the entrusted property at the time of the offense is decisive.

If the value of the embezzled property exceeds €300,000, this constitutes a particularly serious form of embezzlement pursuant to § 133 para. 2 second case of the Criminal Code. The law provides for a significantly increased penalty of one to ten years’ imprisonment for this. A fine is no longer provided for in this constellation.

The penalty is based exclusively on the value of the entrusted and misappropriated property. Further modalities of the execution of the offense do not constitute independent qualifications, but can be taken into account in the context of sentencing.

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.

Note:

In the case of Embezzlement under § 133 para. 1 of the Criminal Code , a fine is expressly provided for and is common in practice, especially in the case of minor guilt, first-time offenders or full compensation for damages.

In the case of qualified embezzlement under § 133 para. 2 of the Criminal Code , on the other hand, the fine recedes significantly into the background. With increasing damage and especially when the value limit of €300,000 is exceeded, only a prison sentence is regularly considered. A fine is no longer provided for by law or is factually excluded in these cases.

Imprisonment and (partially) suspended sentence

§ 37 of the Criminal Code: If the statutory penalty is up to five years’ imprisonment, the court may impose a fine instead of a short prison sentence of no more than one year. This possibility therefore exists also in the case of embezzlement under § 133 of the Criminal Code, especially in the basic form with low guilt and limited financial damage.

In the case of high value qualifications with a statutory minimum prison sentence, an application is excluded.

§ 43 of the Criminal Code: A prison sentence can be conditionally suspended if it does not exceed two years and the perpetrator has a positive social prognosis. This possibility exists also in the case of embezzlement. A conditional remission is granted more cautiously if the offense was committed in a planned manner, repeatedly or under significantly aggravating circumstances. A conditional remission is realistic above all if the damage has been fully compensated, the perpetrator is insightful and the offense is in the lower range of the penalty.

§ 43a of the Criminal Code: The partially conditional remission allows a combination of unconditional and conditionally suspended part of the sentence. It is possible for sentences over six months and up to two years.
In the case of embezzlement, this form can be particularly important if the sentence appropriate to the guilt lies between six months and two years. In cases with a minimum prison sentence, it is regularly excluded.

§§ 50 to 52 of the Criminal Code: The court may issue instructions and order probation assistance. These often concern the compensation for damages, the return or surrender of the embezzled property, the avoidance of further property offenses or structuring measures. The aim is to compensate for the damage caused and prevent future criminal offenses.

Jurisdiction of the courts

Subject-matter Jurisdiction

For embezzlement under § 133 of the Criminal Code, the subject-matter jurisdiction depends on the intended penalty. At the basic offense of § 133 para. 1 of the Criminal Code with a penalty of imprisonment for up to six months or a fine of up to 360 daily rates, the district court is generally responsible. The penalty does not exceed the simple area of responsibility.

If there is a value qualification under § 133 para. 2 of the Criminal Code because the value of the embezzled property exceeds €5,000, the penalty is increased to imprisonment for up to three years. In these cases, the regional court is responsible as a single judge, as the penalty exceeds the jurisdiction of the district court.

If the value of the embezzled property exceeds €300,000, § 133 para. 2 of the Criminal Code provides for a imprisonment of one to ten years. Due to this penalty, the jury court is responsible. A decision by a single judge is no longer possible here.

A jury court is not responsible, as even the highest penalty of § 133 of the Criminal Code does not reach the statutory threshold for its jurisdiction.

Rechtsanwalt Peter Harlander Peter Harlander
Harlander & Partner Rechtsanwälte
„The judicial jurisdiction follows exclusively the statutory jurisdiction order. Decisive are penalty threat, place of the offense, and procedural jurisdiction, not the subjective assessment of the parties involved or the actual complexity of the facts. “

Local Jurisdiction

The local jurisdiction is generally the court at the place where the offense was committed. The decisive factor is the place where the entrusted property was misappropriated in breach of duty, i.e. where the breach of trust was realized in the external events.

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

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

Hierarchy of Courts

The legal remedies of appeal are available against judgments of the district court or the regional court as a single judge.

If the embezzlement was negotiated before the jury court, appeal and appeal on points of nullity are admissible. The Supreme Court is responsible for the decision in these cases, provided that the legal requirements are met.

Civil claims in criminal proceedings

In the case of embezzlement under § 133 of the Criminal Code, the injured party as a private party can assert their civil claims directly in the criminal proceedings. Since it concerns the breach of duty in dealing with an entrusted asset, the claims relate in particular to the value of the embezzled asset, to compensation for financial disadvantages incurred and to further damages caused by the unlawful misappropriation.

Depending on the facts, consequential damages can also be claimed, for example if the entrusted property was intended for professional, operational or economically essential purposes and its embezzlement has led to noticeable financial disadvantages.

The private party connection suspends the statute of limitations for the asserted claims for the duration of the criminal proceedings. Only after its legally binding conclusion does the limitation period continue to run, insofar as the damage has not been fully awarded.

A voluntary compensation, for example through return of the property, replacement of the value or a serious effort to compensate for the damage, can have a mitigating effect, provided that it is timely and complete.

However, if the perpetrator has acted in a targeted manner, over a longer period of time or in a way that has led to significant financial damage, a later compensation for damages regularly loses a significant part of its mitigating effect. In such cases, the subsequent compensation can only compensate for the breach of trust and the injustice of the act to a limited extent.

Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys
„Private party claims must be clearly quantified and documented. Without proper damage documentation, the claim for compensation in criminal proceedings often remains incomplete and shifts to civil proceedings. “
Select Your Preferred Appointment Now:Free initial consultation

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

Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys
„The right steps in the first 48 hours often determine whether a procedure escalates or remains controllable.“
Select Your Preferred Appointment Now:Free initial consultation

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.
Rechtsanwalt Peter Harlander Peter Harlander
Harlander & Partner Rechtsanwälte
„Those who act thoughtfully, secure evidence, and seek legal assistance early retain control over the proceedings.“

Your Benefits with Legal Assistance

Embezzlement under § 133 of the Criminal Code requires that an entrusted asset is misappropriated in breach of duty and that there is also an intention to enrich oneself. The legal assessment depends largely on whether there was actually an entrustment, how far the granted power of disposal extended, whether there is an exceeding of the purpose and how the alleged financial damage is presented. Even minor differences in the actual course of events can determine whether the offense is fulfilled or not.

Early legal support ensures that the underlying legal relationship is correctly classified, the actual handling of the property is precisely worked out and exculpatory circumstances are made legally usable.

Our law firm

examines whether the requirements for embezzlement are actually met or whether there is merely a civil law conflict,

As a criminal law specialized representation, we ensure that the accusation of embezzlement is carefully examined, legally correctly delimited and the proceedings are conducted on a sustainable factual and evidentiary basis.

Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys
„Legal support means clearly separating the actual events from interpretations and developing a robust defense strategy based on them.“
Select Your Preferred Appointment Now:Free initial consultation

FAQ – Frequently Asked Questions

Select Your Preferred Appointment Now:Free initial consultation