Property Crimes

Allegations of fraud or embezzlement typically arise from business operations, contractual relationships, or the management of third-party assets. Investigations focus on purchases, loans, grants, investments, financial statements, digital payments, or business decisions. The focus is then on extensive documentation, electronic communications, and account transactions.

Searches may involve private and business premises; data storage devices, cell phones, and business records may be seized; and an asset freeze may cover bank accounts, receivables, and other assets before a decision is made on the allegation. For activities conducted within a company, there may also be consequences under corporate, professional, or commercial law.

Important: Under Section 136(1) of the Code of Criminal Procedure (StPO), you have the right to remain silent regarding the matter and to consult with a defense attorney before being questioned; under Section 147(1) of the StPO, the defense attorney may review the investigative file and inspect evidence held in official custody.

An Overview of the Topics

Fraud — Deception, Error, and Financial Loss

Fraud under Section 263(1) of the German Criminal Code (StGB) requires a factual deception that causes or perpetuates a mistake. As a result of this mistake, a person must dispose of their assets, thereby causing financial loss. In addition, there must be intent and the purpose of securing an unlawful financial advantage for oneself or a third party.

In contractual relationships, the crucial question concerns the time at which the contract is concluded. A subsequent failure to pay or perform does not, in and of itself, prove that there was prior misrepresentation regarding solvency, willingness to pay, or willingness to perform. It must be determined which express or implied statements were actually made and what the financial situation was at that time.

Financial loss also requires a separate assessment: the consideration given and the consideration received must be compared from an economic perspective. In the case of loans, equity investments, or risky receivables, the recoverability of the acquired claim alone may be the deciding factor.

Computer Fraud, Subsidy Fraud, and Investment Fraud

Section 263a of the German Criminal Code (StGB) covers interference with data processing operations: the improper design of a program, the use of incorrect or incomplete data, the unauthorized use of data, or any other unauthorized interference with the process. On March 18, 2021, the provision implementing Directive (EU) 2019/713 was amended; since then, Section 263a(3) of the German Criminal Code (StGB) has also explicitly covered certain preparatory acts involving programs, passwords, and security codes related to the offense.

Subsidy fraud under Section 264 of the German Criminal Code (StGB) involves providing false or incomplete information regarding facts relevant to subsidies, the misuse of funds, and the failure to disclose information in violation of a duty; pursuant to Section 264(8) of the German Criminal Code (StGB), this also applies to payments from European Union funds. The key difference from fraud: In cases covered by Section 264(1)(1) through (3) of the German Criminal Code (StGB), even reckless conduct may be punishable under Section 264(5) of the German Criminal Code (StGB). Not every mistake regarding funding conditions constitutes this heightened form of negligence—but the accusation is levied more readily than in cases of fraud.

Section 264a of the German Criminal Code (StGB) concerns the provision of false, favorable information or the concealment of unfavorable facts in certain prospectuses and presentations directed at a large group of people. In cases of individual deception regarding an investment, Section 263 of the StGB may also apply—the two provisions are not mutually exclusive.

Breach of Trust — Duty of Care, Breach of Duty, and Harm

Breach of trust under § 266(1) of the German Criminal Code (StGB) requires a special responsibility for the financial interests of others. Not every obligation arising from an employment contract, corporate law, or a business relationship is sufficient: What is required is a duty to manage assets of some significance that encompasses substantial and independent decision-making authority. This duty may arise from statute, an official mandate, a legal transaction, or a fiduciary relationship—the allegation often fails to meet this requirement more frequently than one might assume at first glance.

Those most commonly affected are managing directors, members of the executive board, authorized signatories, employees with financial responsibility, asset managers, or individuals with the authority to dispose of third-party accounts. A distinction must be made between the abuse of granted authority and the breach of other fiduciary duties. The specific tasks and powers delegated remain the decisive factor, not the job title.

Furthermore, a breach of duty alone is not sufficient—it must result in a financial loss. In the case of risky transactions, the granting of loans, payments to affiliated companies, or business decisions, it is therefore necessary to determine the financial situation before and after the disputed action. Expected benefits, collateral, repayment claims, and economic risks must all be taken into account. Especially when the financial loss cannot be immediately quantified, a transparent economic basis is required.

Section 266(2) of the German Criminal Code (StGB) refers to the provision governing particularly serious cases of fraud. The basic offense is punishable by imprisonment for up to five years or a fine; attempted embezzlement is not generally punishable.

Business Transactions — Criminal Offense or Civil Dispute

Many of these cases stem from a failed contractual relationship: invoices remain unpaid, promised services are not provided, projects become more expensive, and loans cannot be repaid. This gives rise to civil claims. This does not constitute criminal fraud—and this distinction is at the heart of nearly every defense in this area.

In cases of fraud by misrepresentation, the examination focuses on the time when the obligation arose: Did the accused intend to and was able to fulfill the obligation at that time, or did they already hold a contrary belief? Subsequent developments must not be retroactively applied to that earlier point in time. In larger companies, an additional consideration is which person had what information and who actually made the relevant statement.

Similar distinctions arise in connection with billing, expenses, commissions, internal approvals, or the use of corporate assets. A violation of internal guidelines can be significant under labor or corporate law without constituting fraud or breach of trust. Conversely, an arrangement that is formally valid and enforceable under civil law remains vulnerable to criminal prosecution if it is based on intentional deception or the causing of financial loss in breach of duty.

These offenses are often accompanied by additional charges: forgery of documents under Section 267 of the German Criminal Code (StGB), credit fraud under Section 265b of the StGB, or the withholding or embezzlement of wages under Section 266a of the StGB. Which provision applies to the case depends on the act, the means of communication, and the financial aspect.

I organize contract documents, communications, cash flows, and internal responsibilities chronologically. The decision then hinges on distinguishing between an intentional property offense, other criminal charges, and non-criminal misconduct.

Attempt, Complicity, and Multiple Charges

In cases of fraud and computer fraud, an attempt is punishable under Section 263(2) and Section 263a(2) of the German Criminal Code (StGB), respectively. Under § 22 of the German Criminal Code (StGB), the offense begins when the accused person, in their own view, directly sets out to commit the offense; mere preparation is generally not sufficient. § 263a(3) StGB provides an exception for certain preparatory acts involving programs, passwords, and security codes.

Not every person involved is a perpetrator. Perpetration under § 25 StGB, incitement under § 26 StGB, and aiding and abetting under § 27 StGB require different levels of involvement. In cases involving a division of labor, it depends on who directed the process, who merely performed a limited task, and what knowledge the person had of the overall situation. Merely being involved in a payment, accounting entry, or contract execution in a professional capacity is not sufficient on its own—aiding and abetting requires intentional assistance in committing an intentional principal offense.

Charges involving a series of acts also raise the question of how many legally distinct acts are involved. Multiple invoices, bank transfers, or applications do not necessarily correspond to the same number of offenses; conversely, a single, unified plan may encompass multiple independent offenses. This classification affects the guilty verdict, sentencing, and asset forfeiture simultaneously—and is therefore rarely a mere formality.

For each person involved, I examine separately which actions can be proven, what knowledge existed at that time, and whether the person’s involvement constitutes perpetration or complicity. In cases involving multiple incidents, it must also be determined which actions legally constitute one or more offenses.

Search, Seizure, and Asset Preservation

Investigative measures in this context focus on accounting records, contracts, emails, messenger communications, login credentials, and account documents. A search of a suspect’s premises may, pursuant to Section 102 of the Code of Criminal Procedure (StPO), serve to locate suspected evidence; under Section 94 of the Code of Criminal Procedure (StPO), items may be seized and, if not voluntarily surrendered, confiscated. In the case of companies, this often involves large volumes of data from areas unrelated to the allegations.

For the legal assessment, the following factors are relevant: the suspicion of a crime as described in the order, the time period, the evidence sought, and the classification of the seized data. Above all, however, a distinction must be made between seizure for evidentiary purposes and measures intended to secure subsequent forfeiture—these are two different types of intervention with different requirements.

This is because, under Section 111b of the Code of Criminal Procedure (StPO), property subject to forfeiture may be seized, and an asset freeze under Section 111e StPO may be ordered if there are reasonable grounds to believe that the conditions for forfeiture to satisfy the value of the property are met. It covers movable and immovable property, claims, and bank account balances, and specifies the claim to be secured as a monetary amount. The issuance and enforcement of such orders are governed by Sections 111e through 111k of the Code of Criminal Procedure (StPO). For those affected, this is often the most drastic part of the proceedings—long before a decision on guilt has been made.

The right to remain silent under Section 136(1) of the Code of Criminal Procedure (StPO) also applies during a search. The right to inspect case files under Section 147 of the StPO allows for an examination of the facts and documents on which the investigating authorities base their suspicions and their financial calculations.

I review the scope of the order, the classification of seized items, and the distinction between the preservation of evidence and the preservation of assets. In the case of an asset freeze, I classify the basis for calculation, the amount frozen, and the connection to the alleged proceeds of the crime.

Asset Forfeiture and the Statute of Limitations

In economic terms, forfeiture often carries greater weight than the penalty. If a perpetrator or participant has obtained something through or for the purpose of an unlawful act, the court generally orders its forfeiture pursuant to § 73(1) of the German Criminal Code (StGB). If the specific item no longer exists, § 73c of the German Criminal Code (StGB) allows for the forfeiture of a sum of money equal to the value of the item, and under the conditions set forth in § 73b of the German Criminal Code (StGB), such forfeiture may also be directed against other individuals or companies.

The calculation of proceeds must be distinguished from the calculation of damages—the two are regularly conflated in practice. Under Section 73d(1) of the German Criminal Code (StGB), certain expenses must be deducted, while expenses incurred in connection with the offense or its preparation are not taken into account. In cases involving economic transactions, it is therefore a matter of dispute which payments are deductible and to whom an asset actually accrued.

For basic offenses punishable by a maximum of five years, the statute of limitations for prosecution under Section 78(3)(4) of the German Criminal Code (StGB) is five years. Under Section 78a StGB, it generally begins upon the completion of the offense—not upon its commencement. Measures under Section 78c of the German Criminal Code (StGB) interrupt the statute of limitations, and there are also statutory grounds for suspension. Therefore, calculating the statute of limitations based solely on the date of the offense often leads to errors.

I examine separately what is considered the proceeds of the crime, who is alleged to have obtained them, and how their value was calculated. With regard to the statute of limitations, I use the case file to determine the timing of the completion of the crime, any possible interruptions, and periods of suspension.