German
Fraud Defence
Lawyers

The fraud offence is regulated in § 263 German Criminal Code (StGB). In addition, § 263a StGB standardises a criminal offence for computer fraud. The penalty for simple fraud ranges from a fine to five years imprisonment. Severe fraud cases can even be punished with up to ten years imprisonment. Furthermore, according to paragraph 2, the attempt of fraud is also punishable. For these reasons, a corresponding criminal charge should not be taken lightly. If you find yourself in a situation where you face this charge and need to defend yourself legally, you should consult an experienced criminal defence lawyer.

Fraud within the meaning of § 263 (1) StGB is committed, “[w]hoever, with the intention of obtaining an unlawful pecuniary benefit for themselves or a third party, damages the assets of another by causing or maintaining an error under false pretences or distorting or suppressing true facts incurs a penalty of imprisonment for a term not exceeding five years or a fine.”

It is a complex set of facts that establishes some explicit but unwritten requirements. In simple terms, the offence requires the following characteristics:

• A deception about facts (actively or by omission),
• An error on the part of another based thereon,
• A disposition of property by the mistaken person,
• A disposition of property by the erring person,
• Intent and intention to enrich.

In addition to simple fraud, paragraph 3 of the penal provision lists various characteristics that regularly lead to the assumption of fraud in a severe case. These are so-called standard examples that increase the range of punishment to up to ten years imprisonment. The fulfilment of one or more of these characteristics must be considered in the sentence. However, it is essential to know that these are not natural elements of the offence but merely rules for assessing punishment. This means that if such a characteristic is fulfilled, it regularly indicates the existence of a severe case. However, this is not obligatory. Instead, the individual case’s concrete circumstances can contradict a severe case’s assumption.

In practice, the most relevant examples are probably those of professionalism or membership in a gang (no. 1), loss of assets on a large scale (no. 2) and faking an insured event (no. 5). Furthermore, it should be noted that the examples mentioned are not exhaustive so that unnamed severe cases can also be assumed.

These fraudsters have a particularly attractive platform for sophisticated fraud schemes with the ever-evolving internet. § 263a of the German Criminal Code (StGB) focuses on computer-related crime. The offence reads as follows:

“Whoever, with the intention of obtaining an unlawful pecuniary benefit for themselves or a third party, damages the property of another by influencing the result of a data processing operation by incorrectly configuring the computer program, using incorrect or incomplete data, making unauthorised use of data or taking other unauthorised influence on the processing operation incurs a penalty of imprisonment for a term not exceeding five years or a fine.”

It is also a criminal offence to manufacture, sell and provide computer programs designed for computer fraud.

Internet and computer scams can be very sophisticated and cause significant damage. But fraudsters often rely on their victims to be ashamed and not report the fraud. Therefore, it is essential to realise there is no shame in falling for a scam.

Working with an experienced fraud lawyer and the authorities is the right action. At least as important is competent legal advice if you, as the accused, are charged with such fraud. Due to the complexity and the constantly evolving technical structures, it can quickly happen that the investigation authorities draw the wrong conclusion due to a lack of knowledge, resulting in misunderstandings that must be clarified at all costs.

Such Internet scams are often highly complex. However, almost all try to grab potential victims by their personal needs or hopes. Here are just a few of the methods used to perpetrate computer fraud:

• Phishing emails involve people receiving emails that look like they come from a bank or an online shop. The links they contain lead to fake websites where access data is requested. The aim is to obtain necessary personal data from the victim. Once a fraudster has received the data, he can use it, for example, to access bank accounts and thus cause financial damage to the victim.

• Fake charities: Fraudsters set up fake websites for charities. Donations made through these websites are then sent to the fraudster and not to the specific charity. You should always check the legitimacy of donating to a particular charity through a website. Research the organisation beforehand and make sure it is an official website. Scammers’ websites often look professional and reputable, so many people are fooled by their design. Mainly, be wary that the organisation does not issue donation receipts or puts you under considerable time pressure to donate.

• Dating websites (“catfishing” or “love scamming” ): This form of fraud involves creating fake profiles on social media, especially on dating websites and partner exchanges, for fraudulent purposes. Through these, the perpetrator contacts the victim explicitly and builds up a virtual relationship over a more extended period, mainly limited to chat dialogues but sometimes also involving telephone calls. As soon as the “relationship” seems intimate enough, the perpetrator starts demanding money – for gifts or some form of travel ticket. Dramatic accidents are often invented, and requests are made to pay high medical costs. Sometimes, the fraudster tries to convince the victim to transfer money to a third party. It is not uncommon for such acts to be linked to money laundering.

• Malware and ransomware: In cases of malware, the fraudster sends links to the victim, which, once opened, infects the computer with malicious malware. This malware makes it possible to spy on personal and sensitive data, which can then be used to access bank accounts. Similarly, ransomware is a form of malware that blocks computer use. Once the encryption has taken place, the victim is blackmailed; only after complying with the instructions, which usually demand money, is the encryption removed again.

• Fake flat advertisements: The fraudsters also shamelessly exploit the housing shortage. To do so, they advertise particularly attractive and cheap rental flats, which they promise the prospective tenant. Before sending the tenancy agreement, the first demand is an advance payment in a deposit of the first rent payment. Once this has been received, the promised sending of the contract does not occur.

The above are some of the most common types of fraud we have encountered. For these frauds, prison sentences of up to three years are not uncommon.

Once the fraudster has obtained the victim’s personal information through phishing or other means, they can use this information to conduct transactions under the victim’s name. The fraudster can access various online services with a person’s date of birth, maiden name or internet passwords and commit identity theft.

An accusation of fraud can be highly damaging to the accused person. Such damage is particularly applicable for entrepreneurs, as such charges can lead to professional difficulties, and severe reputational damage. For this reason, working with an experienced criminal defence lawyer is crucial. If you are accused of fraud and face a police summons, you must know how you should act. You have the right to remain silent, which you should exercise. Without competent legal advice and good preparation, it is not out of the question that you will incriminate yourself during questioning. Such a statement is difficult to correct later, even by an experienced lawyer.

In practice, it can be difficult to prove fraud. It is a complex set of facts. Our lawyers will examine the facts and evidence to devise a suitable strategy for you. It is often possible to resolve the matter out of court. An out-of-court solution can avoid time-consuming and expensive court proceedings and adverse reporting.

Which approach is most appropriate in your case depends on the circumstances of the individual case. Our defence lawyers will work closely with you to develop an effective and targeted strategy based on our information. Depending on the initial situation, this may mean seeking a lighter sentence while avoiding a criminal conviction in other cases.

At Schlun & Elseven Rechtsanwälte, our criminal defence team is widely experienced in defending all manners of fraud cases. As criminal defence lawyers, we have advised clients on matters of computer fraud, embezzlement, subsidy fraud, insurance fraud and all types of complex white-collar fraud, such as investment frauds, banking frauds, and allegations of tax fraud. Once our team is in your corner, they will advise you regarding how to respond to measures such as freezing assets, extradition orders and requests for asset forfeiture.