Property and asset crimes.

The system: what §§ 125 to 168 StGB actually cover

Property and asset crimes are grouped in Chapter Six of the Strafgesetzbuch (§§ 125 to 168 StGB, Austrian Criminal Code). The system distinguishes between offences directed against ownership of a specific object (theft, embezzlement, misappropriation, handling stolen goods, property damage) and offences protecting assets as a whole (fraud, breach of trust, extortion, money laundering). For the defence this distinction is no academic game: it decides whether a given allegation can stand at all, for instance where the suspect has caused a financial loss but has not taken any specific object.

Within each group, the amount of damage determines the sentencing range. The key thresholds are EUR 5,000 (basic to aggravated case) and EUR 300,000 (aggravated to particularly serious case). Embezzling EUR 4,900 stays within § 133 para 1 StGB with a maximum of six months’ imprisonment or a fine. Embezzling EUR 5,100 already triggers § 133 para 2 first alternative StGB, with up to three years’ imprisonment. A clean calculation of the loss, including the question whether multiple acts may be added up to an economic unit, is therefore not a side issue but core defence work. The Austrian Supreme Court (OGH, 14 Os 55/20h, 15 Os 58/22m) insists that each individual act must be assessed separately unless it is tied to a single, up-front plan for a continuing series of acts (a "global intent").

A second layer of qualification is commercial commission (§ 70 StGB): anyone who repeatedly commits a criminal offence in order to generate a regular income falls under the commercial variants, commercial theft (§ 130 StGB), commercial fraud (§ 148 StGB), commercial handling (§ 164 para 4 StGB). The sentencing range jumps to up to ten years’ imprisonment. Since the 2015 reform, the OGH requires more than a bare intention to repeat: there must be a concrete plan to secure sustained income over an extended period. The defence regularly argues the point, for isolated acts, opportunistic offences and offences committed from acute need.

Anyone facing a complaint for property or asset crime should retain a defence lawyer before the first interview. § 164 para 1 StPO (Austrian Code of Criminal Procedure) expressly grants that right. In property crime cases the first statement often carries the entire case: those who "acknowledge" or "allocate" a payment lose interpretive control later. Conversely, early cooperation, in particular through active repentance (§ 167 StGB), opens routes to full exemption from punishment in Austrian property criminal law that simply do not exist in other areas.

Fraud (§ 146 StGB): the most common allegation and its test

The fraud offence is a strict four-step test: deception as to facts, an error induced in the deceived party, a disposition of assets triggered by that error and a resulting pecuniary loss. On the subjective side, § 146 StGB requires intent covering all elements and the will to secure unlawful enrichment, for the perpetrator or a third party. If any element is missing, the offence falls. The defence must examine the four steps one by one: is the statement a representation of fact or a mere forecast? Was the contractual partner actually misled, or should standard diligence have revealed the true situation? Has a pecuniary loss occurred on an economic, not merely accounting, view? And was the intent to enrich present from the outset or only developed afterwards?

The qualifications determine the actual severity. Aggravated fraud (§ 147 para 2 StGB) from EUR 5,000 upwards raises the range to up to three years’ imprisonment. Particularly aggravated fraud (§ 147 para 3 StGB) from EUR 300,000 upwards raises it to up to ten years. There is also the special qualification of § 147 para 1 StGB: use of a false or falsified document, a false or falsified means of evidence or a forged sign. In practice this qualification already applies to a forged invoice, a manipulated photograph on a classifieds platform or a fake CV. In strategic classification it matters whether the document actually caused the loss or was only a marketing vehicle, the OGH (13 Os 112/21y) ties the qualification more closely to the causal role than some indictments suggest.

Commercial fraud (§ 148 StGB) addresses repeat offending in serial fraud: fake shops, investment fraud with multiple victims, systematic rental scams. The sentencing range reaches up to ten years. The defence must challenge commercial commission early: was there really a plan for sustained income or was this a series of isolated acts driven by different circumstances? Did the plan exist before the first act or only emerge later? And do the individual acts form an economic "continuation" or must each one be assessed separately?

Fraud through contract conclusion is a key practical sub-case: those who promise performance without the willingness or ability to perform already deceive at the moment of contract, not only when payment later fails. The line to a civil dispute is narrow: not every breach of contract is fraud, and not every insolvency is criminal. The defence typically works with financial records, account statements, balance sheets, order books, cash-flow forecasts, to show that, at the time of contracting, performance was objectively in prospect. Especially for companies nearing insolvency, this line between entrepreneurial risk and criminal conduct is existential.

A rapidly growing sub-field is online and internet fraud. Fake shops on manipulated domains, love scamming via dating platforms, advance-payment fraud on classifieds, phishing and CEO fraud with spoofed e-mails. Substantively these cases regularly qualify as commercial aggravated fraud, often with the documentary qualification (§ 147 para 1 item 1 StGB) because of forged identity or payment documents. Procedurally the cross-border dimension dominates: foreign-hosted servers, recipient accounts in third states, crypto wallets. Mutual legal assistance under the EU-JZG (Austrian Act on Judicial Cooperation in Criminal Matters with the EU) and the 29 May 2000 Convention sets the timetable. Victims should act immediately: file a complaint, request a freeze order on recipient accounts under § 110 para 3 StPO and secure counsel early, so that prosecution does not fail on evidence lost abroad.

Theft, embezzlement, misappropriation, handling, the classic property offences

Theft (§ 127 StGB) requires the taking of a foreign movable object with intent to enrich. That means: another person must own the object, the existing possession must be broken and new possession established, and the perpetrator must intend to enrich himself or a third party. Someone who accidentally takes a foreign object, who claims an item believed to be his own or who intends only a short-term use (unauthorised use, § 136 StGB) does not commit theft. This basic test alone turns many cases, cash shortages, unclear ownership in shared flats, disputes over rental inventory, around decisively.

Qualified forms of theft follow their own logic: aggravated theft (§ 128 StGB, losses over EUR 5,000, special objects such as weapons or documents), burglary (§ 129 StGB, entry into buildings, overcoming security devices, forcing containers) and commercial theft (§ 130 StGB). Combining several qualifications routinely lifts the range to up to ten years’ imprisonment. Burglary cases are heavily forensic, DNA, shoe prints, tool marks. Early file inspection under § 51 StPO and independent expert access can shift the case decisively.

Embezzlement (§ 133 StGB) differs from theft in the element of entrustment: the object has already been handed over to the perpetrator, who does not need to take it but rather uses it for an unauthorised purpose. Typical cases are service providers using client funds for their own purposes, lessees selling leased vehicles, trustees diverting entrusted money, or private withdrawals from company accounts. Distinguishing this from misappropriation (§ 134 StGB), which covers found or mistakenly delivered property rather than entrusted property, decides markedly different sentencing ranges and the availability of active repentance. Classification is often disputed in practice: for sums on a company account, for refunds of overpayments, and for parcels delivered by mistake.

Handling stolen goods (§ 164 StGB) captures hiding, disposing of, buying or placing an object that another person obtained through a criminal act. Depending on the qualification, either knowledge or negligent lack of knowledge is required. What counts is what the buyer knew or should have known: a conspicuously low price, missing vehicle documents, unusual circumstances of sale. The OGH (12 Os 108/22p) has repeatedly held that a suspicious-purchase situation can support conditional intent, those buying below market without caring about origin risk a handling charge. Handling and money laundering (§ 165 StGB) overlap at the edges; laundering ties to a catalogue of serious predicate offences, typically white-collar offences, organised property crime or corruption, and has covered self-laundering since 2010.

Adjacent offences include property damage (§ 125 StGB), permanent deprivation of property (§ 135 StGB), unauthorised use of vehicles (§ 136 StGB) and taking out of need (§ 141 StGB, theft from necessity). Taking out of need is not rare in current practice, a complaint by the victim is a procedural requirement, and the sentencing range is well below ordinary theft. Likewise to be distinguished is robbery (§ 142 StGB), which requires force or threat and is no longer classified as a property offence in the narrow sense, the range starts at one year’s imprisonment and reaches life imprisonment for robbery resulting in death. Anyone summoned on a robbery allegation is in a fundamentally different criminal-law setting, and the defence logic diverges from all other property offences.

Restitution beyond § 167 StGB, mitigation and diversion

Active repentance under § 167 StGB is broken down step by step in the phase overview above (requirements, deadline, effect). Where the rule applies, fraud, breach of trust, embezzlement, misappropriation, money laundering, fraudulent insolvency and forgery of documents in property matters, it is the only personal exemption from punishment of its kind in Austrian criminal law. The practical task is not understanding the rule, but cleanly executing the three conditions of completeness, timeliness and voluntariness within a short window.

Where § 167 StGB no longer applies, because restitution comes only after the interview or the offence falls outside the catalogue (theft, robbery, handling, property damage), restitution remains a mitigating factor under § 34 para 1 item 14 StGB. Its weight in sentencing is substantial: it regularly converts an unsuspended sentence to a suspended one, lowers the number of day-fine units and improves diversionary eligibility. Even outside the exemption context, restitution is one of the defence’s most effective tools.

Combined with diversion under §§ 198 et seq. StPO a case can often be closed without a trial and without a criminal-record entry. Four routes are available: fine (§ 200 StPO), community service (§ 201 StPO), probation (§ 203 StPO) and offender-victim mediation (§ 204 StPO). Mediation presupposes a process with the victim and is often the most economically sensible solution in property crime cases, the loss settlement becomes part of a documented and approved compromise that satisfies the victim and ends the criminal proceedings without a guilty verdict.

Choosing the right form of disposal, § 167 StGB exemption, diversion, conviction with restitution as mitigation, belongs in defence hands. The choice affects the criminal record, civil follow-on actions (e.g. insurer recourse), regulatory consequences (concessions, reliability assessments) and, in some cases, residency status. A premature consent to diversion or to a guilty plea without strategic review can be felt years later.

Procedure, private party involvement and appeals

A typical case in property and asset crimes follows a clear pattern: complaint by the victim or an authority, opening of the investigation by the prosecutor (§ 101 StPO), interview of the suspect, possibly a search and seizure, closure of the investigation by indictment, diversion, discontinuance or summary prosecution. The forum depends on the sentencing range: the district court (Bezirksgericht) for offences with a maximum of one year (basic theft, basic embezzlement) or the regional court (Landesgericht) as a single judge (up to five years) or as a lay-judge panel (Schöffengericht) for higher ranges. The choice of forum shapes defence strategy: district court proceedings are quicker and more oral and leave more room for diversion; lay-judge proceedings offer deeper evidence-taking and broader strategic options on appeal.

Victims may join the case as a private party under §§ 67 et seq. StPO. Registration is informal, made with the prosecutor or at the latest at trial, and the court may award damages directly in the criminal judgment (adhesion procedure). This saves the victim a separate civil action but comes with requirements: the claim must be quantified, proved and legally assigned. Where the court doubts parts of the claim, it refers the victim to the civil courts (§ 366 para 2 StPO). Defending suspects against the private party claim is often underestimated: a guilty verdict does not automatically cover every claimed loss. Separating the criminally proven loss from the civilly claimed figure is defence work.

Against district-court judgments, the appeal under § 489 StPO is available, registered within three days and filed within four weeks of service of the judgment. The same timings apply to regional-court judgments from a single judge. Against lay-judge judgments, a plea of nullity before the Supreme Court (§ 280 StPO) and an appeal on sentence (§ 283 StPO) lie, each registered within three days and filed within four weeks after service. Missed deadlines cannot be restored. The strategies diverge considerably: an appeal on guilt requires new evidence or a materially different evidentiary picture, while a plea of nullity attaches to doctrinal and procedural errors of the first instance. We have set out the architecture of appeals in detail in the Appeals focus area.

Property crime and white-collar crime overlap regularly in practice. Breach of trust by a director, embezzlement of entrusted company funds or commercial fraud with corporate scaffolding touches both fields, classification and strategic allocation are addressed in the White-collar crime focus area. Civil follow-on questions, recovery actions, warranty proceedings, insolvency avoidance suits, are handled together with the civil team of Brandauer Rechtsanwälte, so that the criminal and civil lines can be pursued from a single desk.