Fraud in Austria
(Click here to read this post in Dutch.)
As in many other countries, fraud (Betrug) is a common criminal offence in Austria. It can be perpetrated in many ways, and the damage can range from almost nothing to enormous sums of money. This post offers a brief overview of the Austrian definition of fraud and the possible punishments for it in Austria.
General information on Austrian criminal law and procedure can be found here.
Right at the start of this post, it should be noted that the punishment for fraud in Austria should not be underestimated. More severe, organized forms are actively prosecuted and severely punished. It is not at all uncommon to spend time in pre-trial detention or receive an unconditional prison sentence in such cases. This also applies to phishing.
The definition of fraud (Betrug)
Austrian criminal law defines the essence of fraud in § 146 of its criminal code (Strafgesetzbuch; StGB):
A person who, with the intent to unlawfully enrich themselves or a third person through the conduct of the defrauded person, persuades someone to take, tolerate or omit an act by deceiving this person about certain facts, and thereby causes financial damage to this or a third person, commits fraud.
Very simply put: a person who, with the intention of making a profit off of doing so, deceives somebody, so that this person does something causing financial damage to himself or another person, commits fraud.
The criminal act as such has several components:
Intent: the perpetrator´s intention must be to unlawfully enrich themselves or another. In other words, the perpetrator wants to gain something through his deceit, knowing that he is not lawfully entitled to these gains.
Deception about facts: the person being defrauded must be deceived (or at least misled) about certain circumstances. This can, for instance, be in relation to somebody´s preparedness to pay for something or a product that is supposed to be delivered.
Act: the defrauded person must, on basis of the deceitful information, take a decision that they would otherwise not have taken. An example is making a down payment.
Damage: as a result of the perpretrator´s actions, the defrauded person or a third party must suffer damage. This often occurs in the form of doing a payment or delivering a product or a service. Note: attempts to commit fraud are just as punishable.
This does not mean that any situation in which a person takes an unfortunate decision or where incorrect information is provided constitutes fraud.
An example: if someone orders something in a restaurant, but then does not pay, this does not automatically mean he has defrauded the restaurant. In principle, the restaurant has been misled about the likelihood that the person will pay for his order. If this person, upon wanting to pay, however notices that he has forgotten his wallet, they will most likely not have committed fraud. While ordering, they will most likely have done so wanting also pay for this order (in other words: no intent). If someone however visits a restaurant without any money and orders something with the plan to not pay for this (“dine and dash”), then this would constitute fraud.
Another, very clear example: if someone introduces themselves over text message as the recipient´s son or daughter, and asks for money, this person – if the recipient believes this and transfers money – commits fraud.
This means that fraud in Austria can be complicated as a criminal offence. Proving intent may be hard. The same applies to the nature of information provided to the defrauded person. The line between incorrect, incomplete or misleading information can be very thin, which may sometimes require a very thorough analysis of all the facts.
Punishments for fraud
Besides the punishment for fraud itself, Austrian law contains a number of conditions that may lead to a higher punishment:
Fraud (Betrug) is in principle punished with a prison sentence of up to six months or with a fine (§ 146 StGB).
Aggravated fraud (schwerer Betrug) is committed if the fraud is carried out with the use of fake or forged documents or means of payment, deceitfully acquired payment data or other means. It also covers situations in which someone pretends to be a civil servant, e.g. a police officer, or if the damage exceeds EUR 5.000. In these cases, a prison sentence of up to three years may apply (§ 147 Abs 1, 2 StGB).
If aggravated fraud is however committed as part of a criminal group, the perpetrator risks a prison sentence of six months up to five years (§ 147 Abs 2a StGB).
If the damage caused by the fraud exceeds EUR 300.000, the perpetrator risks a prison sentence of one up to ten years (§ 147 Abs 3 StGB).
If fraud is committed in order to generate a regular income, the perpetrator risks a prison sentence of up to three years. Aggravated fraud committed in order to generate a regular income may however lead to a prison sentence of six months up to five years (gewerbsmäßiger Betrug; § 148 StGB).
A special – and rather technical – case is the use of digital data that has been influenced by digital processes, be it by using special software, by disseminating, changing, omitting or transferring certain data. This does not so much involve deceiving a person, but rather the manipulation of digital systems (e.g. websites). This, too, is punishable with a prison sentence of up to six months. Aggravating conditions may also apply, which could lead to a prison sentence of up to ten years (§ 148a StGB).
Phishing
A current problem in Austria is the prevalence of phishing, which is frequently committed by people located in or coming from other European countries. It should be noted that in Austria, phishing is not considered to be a “minor” or “victimless” offence, but instead is actively prosecuted and severely punished. This, too, is to be considered fraud – perpetrators risk the sentences mentioned above.
International aspects
Under certain conditions, persons can also be criminally prosecuted in Austria if they did not physically commit any criminal offence in Austria itself. This can for instance be the case where the damage (e.g. an emptied bank account) is incurred in Austria. Depending on the offence, this can mean receiving a summons to appear at a trial a hearing in Austria or even being extradited from one´s home country.
Some practical advice: persons facing extradition proceedings would do well to contact an Austrian lawyer as soon as possible. Foreign courts and lawyers in these proceedings often have only rudimentary information about the case itself. An Austrian lawyer can offer useful support here.
Legal guidance recommended
People facing criminal charges are urgently recommended to seek legal counsel as soon as possible. I offer my support and guidance in criminal procedures in Austria. Of course, I do so entirely in English. Feel free to contact me by using the form below, writing me at office@vastenburg.at or calling me at 0043 6804446590. General information on Austrian criminal procedure can be found here.
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