White-collar crime.

The jurisdictional framework: WKStA, public prosecutor and competent court

White-collar crime is not a statute of its own, it is a procedural dimension. A case becomes recognisable as white-collar as soon as the Central Public Prosecutor’s Office for Economic Crime and Corruption (WKStA) takes over under § 20a StPO. The WKStA is competent for proceedings involving damages above five million euros, corruption offences (§§ 302, 304 et seq. StGB), capital-market cases, financial-criminal matters of cross-provincial relevance and VbVG proceedings against internationally active entities. Below those thresholds the local public prosecutor, in Salzburg the Public Prosecutor’s Office Salzburg, retains jurisdiction, especially for classic breach-of-trust, fraud and insolvency cases.

Which office is in charge matters strategically. WKStA cases are led by specialised prosecutors; they run longer, the file is heavier and the prosecution routinely relies on experts from the Financial Police or the Federal Criminal Police Office. A local prosecutor moves faster and more pragmatically, but with less depth in the accounts. For the defence the difference is tangible: a WKStA case often requires the early involvement of a forensic accountant or IT expert to meet the prosecution’s line of argument at eye level.

Court jurisdiction follows the sentencing range: the District Court (up to one year), the Regional Court sitting as a single judge (up to five years), or the lay-judge court (Schoeffengericht) and the jury court (Geschworenengericht). White-collar cases routinely reach the lay-judge court at the Regional Court because the qualifying elements, § 153 para. 3 StGB or § 147 para. 3 StGB, carry penalties above five years. That determines the procedural path, the evidentiary hearing and the rights of appeal: judgments of the lay-judge court are subject to a plea of nullity and an appeal on sentence, judgments of the single judge to the simplified appeal under § 489 StPO.

A person accused in a white-collar matter has the right under § 164 para. 1 StPO to call a defence lawyer before the first interview and to be informed of their rights, in particular the right to remain silent. Where several decision makers are questioned in parallel, a coordinated defence strategy is indispensable: a careless statement by one managing director can turn other officers into suspects or trigger corporate attribution under the VbVG. Costs are equally relevant. An acquitted defendant is entitled to a flat-rate cost reimbursement under § 393a StPO, but in practice the amount falls well short of actual defence fees. A clear fee and engagement letter at the outset is therefore part of serious defence work.

House search and seizure, the critical first hours

A house search at the company is rarely a surprise for the defence, but almost always for management. The legal basis is § 117 no. 2 StPO in conjunction with § 119 StPO: seizure in principle requires judicial authorisation by the Regional Court. Where there is exigency, the public prosecutor may act under § 120 para. 1 StPO but must obtain judicial confirmation within 14 days. Managing directors and employees are entitled to call in counsel during the search (§ 121 para. 2 StPO). The right is not suspensive, investigators need not wait for the lawyer to arrive, but the dynamics change noticeably as soon as defence counsel is on site.

The decisive lever in the first hours is the segregation motion under § 112 StPO. Documents covered by attorney-client privilege and, following the OGH decision 14 Os 39/23z with growing consequence, internal investigation reports, may be sealed and submitted to the court for a separate admissibility ruling. The data are then not exploited immediately, but reviewed in a dedicated preliminary proceeding. A skilful response protects not just single documents but can call the whole investigative approach into question, particularly in large IT seizures, which now form the bulk of any white-collar case.

Beyond classic searches, telecommunications surveillance (§ 134 no. 3 StPO), communication-metadata requests (§ 134 no. 2 StPO) and traffic-data analysis are standard WKStA tools. Covert investigation routinely includes mirror images of e-mail servers, forensic extraction of mobile phones and cross-border data requests under the EU Judicial Cooperation Act (§§ 50 et seq. EU-JZG). The defence must examine early which measures were judicially authorised, which rely on retained or traffic data, and which would not pass an independent proportionality review. Successful exclusionary rulings are rarer than in other proceedings but substantially more effective: an exclusionary order covering 200 GB of seized data can carry the entire defence.

Conduct after the search matters just as much. Employees must not be pressed into pre-scripted internal interviews without being advised of their right to remain silent under § 157 para. 1 no. 1 StPO. An unstructured internal review can otherwise be used at trial against the entity and its officers. Press and employee communications belong in the hands of the defence, coordinated with corporate communications, not in the gut feeling of individual managers. Wrong reactions here often escalate matters more than the search itself. German business travellers caught up in an Austrian search in particular tend to miss the local peculiarities, right to silence, segregation motion, right of refusal to testify for relatives (§ 156 StPO) and access to the file under § 51 StPO are structured differently than in Germany, and a mistake about Austrian law is not excused in an Austrian criminal proceeding.

Breach of trust, fraud, accounting and insolvency offences, the core norms

Breach of trust under § 153 StGB is the central norm of Austrian white-collar law. Elements: whoever knowingly abuses a power to dispose of another’s assets or to bind another, granted by law, by official act or by legal transaction, and thereby causes financial detriment to that other. Three elements matter: abuse of authority (not every breach of duty qualifies), knowing abuse (dolus principalis) and actual detriment. The qualification under § 153 para. 3 StGB applies above EUR 300,000 damage, with a sentencing range up to ten years imprisonment. The OGH (14 Os 34/16s, 17 Os 3/23g) has refined its economic-perspective doctrine: in risk transactions, cash-pool constructs or intra-group loans, a mere accounting shortfall is not enough, the detriment must follow recognised economic principles.

Fraud under §§ 146 et seq. StGB differs from breach of trust through the outward relationship: the perpetrator deceives a third party and enriches himself or another at that third party’s cost. Commercial fraud (§ 148 StGB), aggravated fraud above EUR 5,000 (§ 147 para. 2 StGB) and the EUR 300,000 qualification (§ 147 para. 3 StGB) carry penalties up to ten years. Mixed charges are common in practice, for example in intra-group transfer pricing, where breach of trust internally and tax fraud externally are examined in parallel. Clean legal classification is defence work, not a side-issue to the indictment.

Accounting offences under §§ 163a to 163d StGB carry up to two years of imprisonment and have gained weight in WKStA practice since statutory auditors and supervisory-board members have moved into the prosecution’s scope. § 159 StGB (gross negligence prejudicing creditors) targets managers who, in a crisis, make payments, take on credit or investments that no reasonable businessperson would have undertaken, sentencing range up to one year, up to three years in the qualified case. The line between permissible restructuring effort and culpable creditor damage is fluid and must be drawn transaction by transaction.

Corruption offences under §§ 302 et seq. StGB form a separate chapter. Misuse of official authority (§ 302 StGB), bribery (§ 304 StGB), acceptance of a benefit (§ 305 StGB) and the act of bribing (§ 307 StGB) have been broadened by the 2023 Anti-Corruption Amendment Act, preparatory acts and benefits given to third parties are now covered as well. In business relationships with public contracting authorities, in subsidy procedures and in cross-border award scenarios, the limits of criminal liability today are drawn considerably tighter than a decade ago. We check every business-related benefit against the threshold of § 305 para. 4 StGB or whether the elements of the offence are already met.

Fiscal criminal law under the FinStrG, in particular tax evasion (§ 33 FinStrG) and tax fraud (§ 39 FinStrG), frequently runs in parallel, with its own authorities (tax office, customs, Federal Fiscal Court). The voluntary self-disclosure under § 29 FinStrG is the central instrument: it must come before detection, be complete, and be accompanied by full payment of the evaded amounts, then criminal liability is extinguished. Where WKStA proceedings and fiscal-criminal dimensions overlap, the timing between them is strategically decisive: a self-disclosure filed after criminal proceedings have been opened is ineffective, and the wording has to match on both fronts.

Insolvency offences, corporate liability and money laundering

The insolvency offences under §§ 156-158 StGB form a chapter of their own. Fraudulent bankruptcy (§ 156 StGB), asset transfers with intent to harm creditors, carries a sentence up to ten years in the qualified case. Negligent bankruptcy (§ 157 StGB) captures risk-laden management during insolvency; preferential treatment of a creditor (§ 158 StGB) captures selective preference in the crisis. Defence work almost always starts with an expert on the exact moment of insolvency: being able to show that material insolvency only set in at a later point often removes the temporal basis of the charges. Cooperation with the insolvency administrator is as close as it is delicate, statements in the insolvency proceedings may be used in the criminal matter.

The Corporate Criminal Liability Act (VbVG) makes companies themselves defendants. Under § 3 VbVG an offence is attributed to the entity when committed for its benefit or through which duties incumbent on it are breached, either by a decision maker (§ 2 para. 1 VbVG) or by an employee, provided the offence was made possible or materially facilitated by an organisational failure (§ 3 para. 3 no. 2 VbVG). The corporate fine under § 4 VbVG is calculated in daily rates, the daily rate reflects the entity’s earnings (up to EUR 10,000) and the number of daily rates tracks the sentencing range of the underlying offence (up to 180 daily rates for offences with a maximum of five years, up to 850 daily rates for higher ranges). A working, documented compliance system can reduce the number of daily rates substantially or exclude attribution altogether, it is therefore the strongest preventive lever any company has.

Money laundering under § 165 StGB covers the concealment, exchange, transfer or administration of assets derived from a predicate offence. Self-laundering has been punishable since 2010, so the predicate offender can be prosecuted for laundering as well. For companies and advisory professions the flanking reporting duties matter: credit institutions under § 16 FM-GwG, lawyers under § 8a RAO, notaries, tax advisors and auditors under their respective professional statutes. Whoever fails to report a suspicion-triggering transaction exposes themselves to an administrative fine and may, in rare cases, be drawn into a laundering prosecution. The defence has to think on two levels: criminal law for § 165 StGB, administrative and professional law for the reporting obligations.

A functioning compliance management system is not merely a badge of good governance, it can shape VbVG attribution directly. § 3 para. 3 no. 2 VbVG requires, for attribution of an employee offence, that decision makers "by failing to exercise the care required under the circumstances and reasonable to expect" enabled the offence. Evidence of documented risk analyses, staff training, reporting channels and consistent sanctioning of breaches undermines this basis of attribution. At the sentencing stage under § 5 VbVG, subsequent clarification of the incident, through a clean internal investigation, operates in mitigation. We assist in building and documenting such systems together with the corporate-law team of the firm, especially for mid-sized Salzburg businesses, where a tailored system is usually far more valuable than a generic template.

Defence strategy: diversion, restitution and appeal

Not every white-collar case ends in trial. The diversionary disposal under § 198 StPO is an under-used path: for offences with a maximum sentence up to five years, the public prosecutor may suspend the proceedings against payment of a sum (§ 200 StPO), community service (§ 201 StPO), a probationary period with or without probation assistance (§ 203 StPO) or victim-offender mediation (§ 204 StPO). Prerequisites: culpability is not severe, no fatal consequence occurred and the disposal appears suitable for restitution. In breach-of-trust and insolvency cases just below the qualification thresholds, diversion is often negotiated, it keeps the record clean and avoids substantial procedural cost.

Procedural acceleration is also possible through discontinuance under § 190 StPO where the suspicion is insufficient, or via the motion under § 108 StPO, which forces the prosecutor either to close a stagnant case or to take concrete investigative steps. In drawn-out WKStA investigations, this is often the only effective lever against de-facto procedural paralysis. If such a motion is rejected, the Regional Court decides; if it is ignored, the fundamental-rights route opens under Art. 6 ECHR for excessive length of proceedings. The defence documents every unjustified delay and can later rely on it as a mitigating factor (§ 34 para. 2 StGB) or as basis for discontinuance due to unreasonable length.

Active repentance under § 167 StGB has central importance in Austrian property criminal law. Whoever fully restores the damage before the start of their interview as a suspect is freed from criminal liability, for fraud, breach of trust, embezzlement and forgery with a property dimension. Full restitution has to be verifiable and may not appear coerced; in practice it is the fastest way out of an investigation where economically feasible. Even after conviction, restitution remains material as a mitigating factor under § 34 para. 1 no. 14 StGB, it influences the sentence, its suspension and later rehabilitation.

Where conviction follows, the appeals decide the actual outcome. Judgments of the lay-judge court are attacked by the plea of nullity under § 280 StPO and the appeal on sentence under § 283 StPO. The registration period is three days from pronouncement (§ 284 para. 1 StPO), the period for the written grounds four weeks from service (§ 285 StPO). Missing either deadline permanently forecloses the remedy. Judgments of the single judge are instead attacked by an appeal under § 489 StPO. Deadlines, architecture and strategic selection of the remedies are covered in our focus area appeals.

Beyond the ordinary remedies, the retrial under § 353 StPO, the reopening of proceedings under § 363a StPO following an ECtHR finding and the fundamental rights complaint under the GRBG for interferences with personal liberty also come into play. In a WKStA context, where investigations run for years and evidence or expert opinions may shift after judgment, retrial is part of the strategic toolkit, it does not easily break finality, but it is the only route when new documents surface years later. White-collar questions with a corporate-law backdrop, director liability, contracts in crisis, shareholder actions, are handled together with the firm’s Brandauer Rechtsanwälte corporate-law team, which has covered company law since 1978. For German managing directors and shareholders active in Austria, we bundle criminal and civil defence in one hand, across the border and with a clear sense of the differences between Austrian and German criminal procedure.

Finally, fees. White-collar defence is typically billed on an hourly basis or a mixed model of a base retainer and time. The General Fee Guidelines (AHK) of the Austrian Bar Association provide benchmarks, for instance EUR 540 per half-hour of attendance at a lay-judge hearing, but they are not binding and in complex WKStA cases are regularly negotiated upwards. Existing legal-expense insurance often covers criminal defence if the insured event is triggered and exclusions (in particular for intentional offences) do not apply. We clarify coverage with the insurer before work begins, set fee arrangements in writing, and flag the option of claiming the flat-rate cost reimbursement under § 393a StPO in case of acquittal. That keeps the financial risk of a white-collar proceeding at least calculable.