Fraud

Fraud pursuant to § 146 of the Criminal Code exists if a person induces another by deception about facts to make a disposition of property that leads to a financial loss for the deceived party or a third party. The perpetrator acts intentionally and with the aim of unlawfully enriching themselves or a third party. The deception can occur through false statements, the pretense of non-existent facts, or the suppression of circumstances that require clarification. The crucial point is that the victim makes a decision based on the deception that they would not have made without this misrepresentation. The financial loss arises precisely as a result of this deception-related disposition.

objective elements of the offence

The objective element of the offense exclusively covers the externally perceptible events. The decisive factors are actions, means used, and consequences that occurred. Internal processes such as motives or intent are disregarded.

The objective element of fraud pursuant to § 146 of the Criminal Code requires that the perpetrator induces a person by deception about facts to take an action, toleration, or omission that causes a financial loss to the deceived party or a third party. A characteristic feature is that the perpetrator does not have direct access to the assets, but rather the victim themselves makes an asset-damaging disposition due to the deception.

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

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

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

Steps of legal assessment

Perpetrator:

The subject of the crime can be any person who is criminally responsible. No special personal characteristics are required.

Object of the Offense:

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

Act:

The act consists of the deception about facts, through which the victim is induced to take an action, toleration, or omission that causes a financial loss.

Result of the Offense:

The result of the offense lies in the occurrence of a financial loss, which directly results from the deception-related behavior of the victim.

Causality:

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

Objective Attribution:

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

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Distinction from other offences

The element of fraud pursuant to § 146 of the Criminal Code covers cases in which a person is induced by deception about facts to take an action, toleration, or omission that causes a financial loss. The focus of the injustice lies in the misleading of the victim, who acts voluntarily but erroneously due to a false picture of the facts.

A characteristic feature is that no violence and no dangerous threat are used. The victim does not act because of coercion, but because of a deception, which they believe. The perpetrator deliberately exploits the error to obtain a financial advantage.

• § 105 of the Criminal Code – Coercion: Coercion covers cases in which someone is forced to behave through violence or dangerous threats without a financial loss occurring. In the case of fraud, the financial loss is a mandatory component. If either the deception or the financial loss is missing, there is no fraud.
• § 142 of the Criminal Code – Robbery: In the case of robbery, the perpetrator takes away a movable object belonging to someone else or directly coerces it away, using violence or threats of imminent danger to life or limb. In the case of fraud, both the act of taking away and the coercion are missing. The financial disadvantage arises exclusively through the deception-related disposition of the victim.

Concurrences:

Genuine Concurrence:

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

Spurious Concurrence:

A spurious concurrence exists if another element of the offense completely covers the entire content of injustice of the fraud. In this case, the fraud recedes as a subsidiary element of the offense, for example, if the deception is only an independent means of committing a more specific offense.

Multiple Offenses:

Multiple offenses exist if several acts of fraud are committed independently, for example, in the case of temporally separated deceptions, each with its own independent financial loss. Each act forms its own criminal law unit.

Continued Action:

A single act can be assumed if several acts of deception are in close temporal and factual connection and are supported by a uniform plan of action. The act ends as soon as no further deception-related dispositions of property take place.

Burden of proof and evaluation of evidence

Public Prosecutor’s Office:

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

It must be proven, in particular, that

• a deception about facts actually took place,
• the deception was causal for an error on the part of the deceived party,
• the deceived party took an action, toleration, or omission based on this error,
• this behavior objectively led to a financial loss for the deceived party or a third party,
• between deception, error, disposition of property, and financial loss a causal connection exists,
• the financial loss was precisely the result of the deception-related disposition,
• the accused acted with intent to enrich themselves.

The public prosecutor’s office must also demonstrate whether act of deception, error, disposition of property, financial loss, and intent are objectively ascertainable, for example, through

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

Court:

The court examines all evidence in the overall context. It assesses whether, according to objective standards, there is a deception about facts that causally led to an error-related disposition of property and, as a further consequence, to a financial loss. In addition, it must be examined whether the intent to enrich oneself on the part of the accused can be established beyond doubt.

In doing so, the court takes into account in particular

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

The court clearly distinguishes between mere contractual risks, civil law disruptions of performance, expressions of opinion, promises for the future without a factual core, as well as cases in which a financial disadvantage has occurred, but a deception that fulfills the elements of the offense is not provable.

Accused Person:

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

• whether there was a deception about facts at all,
• whether the statements were objectively incorrect or only evaluative,
• whether an error actually arose on the part of the victim,
• whether a causal connection existed between deception and disposition of property,
• whether the behavior of the victim was voluntary and self-responsible,
• whether a financial loss has actually occurred,
• whether the accused had intent to enrich themselves,
• whether there are merely civil law disputes or misunderstandings,
• as well as in the case of contradictions or gaps in the accusation or in the case of alternative sequences of events.

It can also demonstrate that statements were made misleadingly, incompletely, situationally, or in good faith, or that although a financial disadvantage is claimed, the requirements of the element of fraud are not met.

Typical Assessment

In practice, the following means of evidence are of particular importance in the case of fraud pursuant to § 146 of the Criminal Code:

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

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Practical example

• Deception-related money transfer through false factual information: The perpetrator deliberately deceives a person about existing facts, for example, by falsely claiming to have an outstanding debt or claim. Due to this deception, the victim mistakenly assumes that they are obliged to pay and transfers the requested amount of money themselves. The perpetrator does not take the money away, but causes a disposition of property that is detrimental to assets through the deception. The financial loss occurs precisely as a result of the error. Thus, the element of fraud pursuant to § 146 of the Criminal Code is fulfilled.
• Fraud by pretending a non-existent service: The perpetrator offers a service or goods that they do not want to or cannot provide from the outset and deceives about this in a targeted manner. The victim relies on the information, makes a down payment or the full purchase price, and expects the promised consideration. This does not materialize. The financial loss arises because the victim disposes of their assets themselves due to the deception. Here, too, there is fraud under § 146 of the Criminal Code.

These examples illustrate the typical manifestations of fraud. A characteristic feature is that no coercion and no threat are used, but rather the victim is induced by deception about facts to a voluntary, but error-related disposition of property. The focus of the injustice lies in the targeted deception and not in the intensity of the influence or the nature of the financial loss.

subjective elements of the offence

The subjective element of fraud pursuant to § 146 of the Criminal Code requires intent with regard to all objective elements of the offense. The perpetrator must know that they are influencing a person by deception about facts and thereby inducing them to take an action, toleration, or omission that causes a financial loss to the deceived party or a third party. They must recognize that the behavior of the victim is not based on a free and informed decision, but on an error caused by deception.

For the intent, it is sufficient that the perpetrator seriously considers the deception, the error triggered by it, the disposition of property, and the financial loss to be possible and accepts it. Conditional intent is sufficient. An intent that goes beyond this with regard to the damage is not required.

However, an intent to enrich oneself is absolutely necessary. The perpetrator must act with the intent to obtain an unlawful financial advantage for themselves or a third party, namely through the behavior of the deceived party. The intended advantage must be identical in substance to the financial loss caused, i.e., result directly from the disposition of property by the victim.

No subjective element of the offense exists if the perpetrator does not deceive intentionally, does not act with intent to enrich themselves, seriously assumes the correctness of their statements, or if they assumes that the victim knows the true facts and decides consciously. In such cases, the intent required for § 146 of the Criminal Code 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 the case of fraud under § 146 of the Criminal Code. Compared to qualified violent or coercive offenses, the offense has a lower degree of unlawfulness, as neither violence nor dangerous threats are required. Whether a diversionary settlement is considered depends largely on the extent of guilt, amount of damage, intensity of the act and the perpetrator’s behavior.

A diversion may be appropriate, particularly in the case of simply structured fraud with minor property damage, no prior convictions and full compensation for damages. With increasing damage, planned action or multiple offenses, the probability of a diversionary settlement decreases significantly.

Diversion may be considered if

• the overall guilt is minor,
• no significant damage amount exists,
• the property damage was minor and fully compensated,
• there is no planned, systematic or continuous action,
• the facts are clear and manageable,
• and the perpetrator is insightful, 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 does not lead to a conviction or a criminal record entry.

Exclusion of Diversion:

Diversion is excluded if

• the fraud was committed in a planned, systematic or continuous manner,
• a significant financial loss has occurred,
• several independent acts of fraud exist,
• commercial activity is apparent,
• special aggravating circumstances are added,
• or the overall behavior represents a significant impairment of the victim’s economic freedom of choice.

A diversionary settlement is realistically possible only in the case of minor guilt, manageable damage and early full compensation. In practice, diversion is possible in the case of simple fraud under § 146 of the Criminal Code, but it is 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 property damage, the nature, intensity and duration of the deception and how severely the victim’s freedom of choice and economic position were impaired. Of particular importance is how planned, purposeful or repeated the perpetrator acted and whether the deceptive behavior led to a noticeable impairment of assets. It must also be taken into account whether the perpetrator acted with particular sophistication, under exploitation of special circumstances or by abusing a relationship of trust.

Aggravating Factors Exist in Particular If

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

Mitigating Factors Include

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

A conditional remission of the prison sentence is regularly considered in the case of fraud under § 146 of the Criminal Code, as the statutory penalty range provides for up to six months imprisonment or a fine. The decisive factor is whether there is a positive social prognosis and the act is in the lower range of guilt and unlawfulness.

Penalty Range

For fraud under § 146 of the Criminal Code, a prison sentence of up to six months or, alternatively, a fine of up to 360 daily rates is provided for. The penalty range covers cases in which deception about facts leads to asset-damaging behavior on the part of the deceived party, without any qualifying circumstances of serious or commercial fraud.

An expressly regulated less serious case is not provided for in the case of fraud. However, the specific penalty amount moves within the statutory framework and is based in particular on the amount of damage, intensity and sophistication of the deception, duration of the act and the personal circumstances of the perpetrator. In the case of minor damage, simple deception and one-time action, a fine or a suspended prison sentence is regularly considered.

It should also be noted that not every incorrect statement is automatically punishable. Criminal liability for fraud requires that there be a deception about facts that causally leads to a disposition of assets and property damage. If, for example, there is no deception-related misrepresentation, no causation of damage or no intent to enrich oneself, the offense does not apply. In such cases, there is no criminal liability.

Monetary Penalty – Day-fine System

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

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

Note:

In the case of fraud under § 146 of the Criminal Code, the fine regularly has central importance. Due to the comparatively low penalty range, an exclusive fine is expressly provided for by law and is common in practice. The daily rate system therefore constitutes an independent main sanction in the case of fraud and not merely an ancillary or substitute solution. The specific design depends on the extent of guilt, amount of damage and economic capacity of the perpetrator.

Imprisonment and (partially) suspended sentence

§ 37 StGB: If the statutory penalty threat 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 fraud under § 146 of the Criminal Code, as the penalty threat is significantly less than five years. In practice, § 37 StGB is mainly applied when a short prison sentence would be commensurate with the guilt, but the overall picture of the crime is to be classified as less serious. This is not a separate fine threat of the offense, 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 the perpetrator has a positive social prognosis. In the case of fraud, this possibility is regularly relevant in practice, especially in the case of first-time offenders, minor or compensated damage and the absence of planned action. The conditional remission is significantly more frequent in the case of § 146 StGB than in the case of serious violent or coercive offenses.

§ 43a StGB: The partially conditional remission allows a combination of unconditional and conditionally remitted penalty part for prison sentences over six months and up to two years. In the case of fraud, this form can become important if the picture of the crime can no longer be classified as minor, but there are no pronounced aggravating circumstances. It may be considered, for example, in the case of higher damage or multiple acts, provided that a favorable social prognosis still exists.

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

Jurisdiction of the courts

Subject-matter Jurisdiction

Fraud under § 146 of the Criminal Code is punishable by imprisonment of up to six months or a fine of up to 360 daily rates. This means that the offense falls in principle within the subject-matter jurisdiction of the district court, as it is responsible for offenses that are only punishable by a fine or imprisonment of up to one year and § 146 StGB is not one of the statutory exceptions.

The main proceedings are therefore regularly conducted before the district court, which decides by a single judge.

Jurisdiction of the regional court is only considered if special statutory jurisdictions intervene, for example in connection with related proceedings, co-defendants or other offenses with higher penalties that are to be negotiated jointly.

A lay judge court or jury court is not responsible for § 146 StGB, as there is neither a penalty threat of more than five years nor a statutory assignment to these panels.

Local Jurisdiction

The court in whose district the fraud was committed is generally locally responsible, i.e. where

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

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

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

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

Hierarchy of Courts

If a judgment is issued by the district court, the parties have access to the ordinary course of appeal.

An appeal can be lodged against the judgment. The decision on this is made by the regional court as the court of appeal.

In cases provided for by law, a plea of nullity or other legal remedy may also be considered. Further control is carried out, depending on the type of legal remedy, by the Higher Regional Court or the Supreme Court.

It is checked whether the proceedings were conducted properly and whether the legal assessment of the fraud charge is correct.

Civil claims in criminal proceedings

In the case of fraud under § 146 of the Criminal Code, the injured party can assert their civil law claims directly in the criminal proceedings as a private party. Since the fraud is aimed at asset-damaging behavior caused by deception about facts, the claims include in particular monetary payments, transferred amounts, surrendered assets, waivers of claims and other financial disadvantages that have arisen as a result of the deception.

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

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

A voluntary compensation, such as the repayment of amounts obtained, compensation for the damage caused or a serious effort to compensate, can have a mitigating effect, provided that it is carried out in a timely and complete manner.

However, if the perpetrator has deceived in a targeted, planned or repeated manner, caused significant property damage or used the deception in a particularly sophisticated or sustainable manner, a later compensation for damages regularly loses part of its mitigating effect. In such constellations, a subsequent compensation can only partially compensate for the injustice of the fraud.

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Overview of criminal proceedings

Commencement of Investigation

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

Police and Public Prosecutor’s Office

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

Interrogation of the Accused

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

Access to files

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

Main Hearing

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

Rights of the accused

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

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Practical guidance and behavioural advice

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

Your Benefits with Legal Assistance

The legal assessment depends largely on the specific content of the deception, the error of the victim, the disposition of assets, the damage incurred and the intent to enrich oneself. Even minor deviations in the facts can determine whether fraud actually exists, whether there is only a civil law dispute or whether there is no criminal liability at all due to a lack of deception, error or intent.

Early legal support ensures that the facts are precisely classified, evidence is critically assessed and exculpatory circumstances are legally usable.

Our law firm

• examines whether there is a factual deception about facts or whether there is only a non-binding declaration, assessment or contract negotiation,
• analyzes the evidence, in particular with regard to the act of deception, error, causality, disposition of assets and property damage,
• clarifies whether an unlawful intent to enrich oneself actually existed or whether there is bona fide, erroneous or merely civil law-relevant behavior,
• develops a clear defense strategy that legally classifies the economic background and the actual process in a precise manner.

As a criminal law-specialized representation, we ensure that a fraud charge is carefully examined and that the proceedings are conducted on a sustainable factual and legal basis.

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FAQ – Frequently Asked Questions

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