Fraud is one of the most common and practically significant offenses in white-collar criminal law. For both defendants and victims, it can entail considerable legal and economic consequences. A sound understanding of the statutory requirements as well as the qualified forms of aggravated fraud and commercial fraud is therefore of central importance.

This article provides an overview of the offense of fraud under Sections 146 et seq. of the Austrian Criminal Code (StGB), its requirements, and the relevant penalties.

What Is Fraud?

Fraud within the meaning of Section 146 StGB is a property offense in which the perpetrator, through deception, induces an error in the victim, which leads to a disposition of property and, subsequently, to a financial loss.

A defining feature is that the financial damage is not caused directly by the perpetrator but rather by a disposition made by the victim themselves—albeit one based on error. It is therefore a so-called self-damage offense.

Deception about facts

The perpetrator must deceive about facts, i.e., circumstances that are capable of proof. Deception can occur both through active conduct (e.g., false statements) and through omission, provided there is a corresponding duty to disclose.

Both external facts (e.g., ability to pay) and internal facts (e.g., willingness to pay) are covered.

Inducing an error

The deception must induce an error in the victim, meaning a false perception of reality. This error forms the basis for the subsequent disposition of property and must be causally linked to it.

Disposition of property

As a result of the error, the victim makes a disposition of property. This includes any conduct that directly reduces assets, such as the payment of money, the transfer of goods, or the conclusion of a disadvantageous contract.

Financial loss

The disposition of property must result in a financial loss. This is determined by comparing the financial position before and after the disposition. Even a non-negligible, temporary reduction in assets is sufficient.

intent

The perpetrator must act with intent regarding all objective elements of the offense. In addition, it is required that they act with the aim of unlawfully enriching themselves or a third party.

The offense is considered complete once the financial loss occurs; actual enrichment is not required.

Penalties

(Simple) fraud is punishable by imprisonment of up to six months or by a fine.

Aggravated fraud (Section 147 StGB)

The Criminal Code provides for a qualification in the form of aggravated fraud for certain methods of commission and levels of damage.

Aggravated fraud exists, for example, if the perpetrator uses qualified means of evidence for deception, such as false or forged documents or incorrect data, or if they falsely present themselves as a public official.

In such cases, the penalty is imprisonment of up to three years.

Of particular practical relevance are also the value-based qualifications under Section 147(2) and (3) StGB:

If the damage exceeds EUR 5,000, the penalty range also increases to up to three years’ imprisonment.

If the damage exceeds EUR 300,000, the penalty is imprisonment from one to ten years.

Commercial fraud (Section 148 StGB)

A further increase in penalties applies if the perpetrator acts on a commercial basis.

Commercial intent requires that the perpetrator commits the offense with the intention of obtaining a continuous income of more than negligible extent through repeated commission over a longer period of time. What is decisive is therefore conduct aimed at repetition, designed for a certain duration and significance.

If the perpetrator commits simple fraud on a commercial basis, the penalty is imprisonment of up to three years.

If, however, the perpetrator commits aggravated fraud (Section 147(1) and (2) StGB), the penalty is imprisonment from six months to five years.

Recommendations for defendants

If you are accused of having committed fraud, it is crucial to take the right steps at an early stage.

It is strongly advised to refrain from making premature statements to the police or public prosecutor without prior legal advice. Legal counsel should be engaged without delay in order to obtain access to the case file and, on that basis, develop an appropriate defense strategy.

Recommendations for victims

If you suspect that you have been the victim of fraud, a prompt legal assessment is recommended.

First, all available evidence should be secured, in particular documents, correspondence, and proof of payment. Subsequently, it should be examined whether and in what form a criminal complaint should be filed. In addition, civil law claims for compensation of the damage incurred will generally also be considered.

Conclusion

The offense of fraud encompasses a wide range of different manifestations, ranging from simple acts of deception to complex, commercially organized schemes. The classification in each individual case depends largely on the specific method of commission, the amount of damage, and the perpetrator’s intent, and has a direct impact on the applicable range of penalties.

Markus Weisser is a white-collar criminal defense lawyer specializing in fraud cases. We support you both in defending against allegations and in the criminal prosecution of damages resulting from fraud.

We assess your individual situation with discretion and expertise. Schedule your confidential initial consultation now.