The most important facts at a glance
- A summons for fraud is to be taken seriously – an investigation under Section 263 of the German Criminal Code (StGB) has been initiated, in which your statement and conduct can be decisive for further proceedings.
- The right to remain silent is your most important right – you do not have to incriminate yourself and should not make a statement to the police or public prosecutor's office without legal advice.
- Early defense significantly improves your position – an experienced criminal defense attorney can request access to the case file, examine the evidence, and develop a well-thought-out defense strategy even before the interrogation.
When the summons is in the mailbox
A summons from the police or public prosecutor's office on suspicion of fraud signifies a significant disruption in your life. You suddenly find yourself facing criminal charges that can result not only in a prison sentence of up to five years—or in a particularly serious case, even six months to ten years—but also jeopardize your professional existence, your reputation, and your financial situation.
Accusations of fraud under Section 263 of the German Criminal Code (StGB) are among the most common economic offenses. Authorities often assume a clear factual situation, while the legal assessment is extremely complex in practice. Proving the subjective elements of the offense – particularly the intent to deceive and the intent to enrich oneself – places high demands on the investigating authorities.
Many defendants underestimate the gravity of a summons and believe they can quickly clear up a „misunderstanding“ with a spontaneous statement. This is a grave error. Every statement is recorded, can be used against you, and cannot be retracted later.
Legal basis of the offense of fraud
The elements of Section 263 of the German Criminal Code (StGB) in detail
The criminal offense of fraud under § 263 of the German Criminal Code (StGB) is a complex statutory offense. It requires that someone, with the intent to unlawfully enrich themselves or a third party, causes damage to another person's property by misleading or maintaining a misconception through the false representation or distortion or concealment of true facts.
The penalty for the basic offense is imprisonment for up to five years or a fine. In particularly serious cases under Section 263, Paragraph 3 of the German Criminal Code (StGB), the penalty is imprisonment for six months to ten years. This includes, among other things, acting commercially or as part of a gang, as well as cases in which a loss of assets on a large scale is caused.
The elements of the offense
For a fraud conviction, all elements of the offense must be proven beyond a reasonable doubt. On an objective level, this includes the act of deception, the resulting or sustained error, a disposition of assets based on that error, and financial damages. On a subjective level, intent, intent to enrich oneself, and awareness of unlawfulness must be present.
The act of deception itself often raises demarcation issues in practice. A concrete misapprehension about facts must be created. Mere value judgments, expressions of opinion, or vague future predictions are generally not sufficient. Even in contract negotiations, not every incomplete piece of information automatically constitutes deception.
Causality between deception, mistake, disposition of assets, and financial loss must be proven. The victim must have suffered damage precisely because of this chain of causation. If this connection is missing, for example, because the victim saw through the deception or acted for other reasons, there is no completed fraud.
Specifics of fraud in contract formation
A practically relevant group of cases is so-called fraud in contracting. Here, the accused deceives about their ability or willingness to fulfill the obligations entered into at the time of concluding the contract. The classic case is entering into a purchase agreement without the intention or financial means to pay.
Proving fraud by contracting is particularly difficult for investigative authorities. The subjective element of the offense – that is, the lack of intent to pay or knowledge of lacking the ability to pay – must have existed at the time the contract was concluded. Subsequent insolvency or a later change of mind does not constitute fraud.
Evidence of fraudulent contracting can include multiple similar transactions, systematically incurring liabilities with no realistic prospect of payment, or concealing the actual economic situation. However, not every failed business transaction should be prematurely qualified as fraud. Economic failure is not automatically a criminal offense.
The Summons and Your Rights as a Defendant
Form and Content of the Summons
A summons on suspicion of fraud may be issued by the police or the public prosecutor’s office. It typically includes details regarding the alleged offense, the period during which the offense is alleged to have occurred, and the person accused. The summons requires you to appear for questioning on a specific date.
You should never ignore a summons. Even if you are not legally obligated to comply with a police summons, it is advisable to respond through legal counsel. Your defense attorney can contact the investigating authorities, request access to the case file, and develop an appropriate defense strategy.
Your right to remain silent and other rights of the accused
The right to remain silent under § 136 of the Code of Criminal Procedure (StPO) is your most important right in the investigative process. You are not obliged to make a statement regarding the matter or to contribute to the clarification of the crime. You may also consult with a defense attorney before interrogation.
This right applies without exception and cannot be used to the detriment of the accused. The investigating authorities must inform you of your right to remain silent at the beginning of each interrogation. A statement made without prior notification is admissible, but may be taken into account when determining the sentence.
The right to inspect the case file is central to an effective defense. Only by knowing the results of the investigation and the incriminating evidence can a well-founded defense strategy be developed. However, in the initial phase of proceedings, access to the file may be temporarily denied for tactical investigative reasons.
Practical Recommendations After Receiving a Summons
Immediate steps
After receiving a subpoena on suspicion of fraud, you should immediately contact a criminal defense attorney. Schedule a consultation appointment promptly, ideally before the date of the interrogation mentioned in the subpoena.
Create a chronological account for yourself of the events related to the accusation. Note all relevant dates, involved persons, and objective circumstances. This record is solely for the preparation of your defense attorney and should not be handed over to the investigative authorities.
Gather all documents that could be related to the accusation: contracts, emails, bank statements, business correspondence. You should also hand over these documents only to your defense attorney at first, who will decide whether and in what form they should be made accessible to the investigative authorities.
What you absolutely should avoid
Under no circumstances should you contact law enforcement, the alleged victim, or other parties involved without legal advice. Any conversation can be logged or recorded and used against you.
Do not delete any data, documents, or electronic communications. Preserve all evidence, even if it initially appears incriminating. Do not discuss the case on social media or with third parties. Information could find its way to investigative authorities and jeopardize your defense strategy.
Your Defender's Role
An experienced defense attorney will first request access to the case files from the prosecutor's office. This will allow them to become aware of all investigative measures carried out so far, the evidence on hand, and the assessment by the investigating authorities.
Based on their knowledge of the case file, your defense attorney can realistically assess the chances of a successful defense. Together with you, they will develop a strategy: Should a statement be made, or should the right to remain silent be exercised? Can exculpatory evidence be presented? Is an agreement with the prosecution conceivable?
Your attorney communicates with the investigative authorities on your behalf. He can issue statements without you having to be interrogated yourself. He can point out procedural errors, file motions for evidence, and suggest the dismissal of proceedings under § 153a of the German Code of Criminal Procedure (StPO).
Checklist: Your First Steps After a Fraud Charge
Immediately upon receipt of the subpoena:
- Keep calm and don't act rashly
- Secure summons and all accompanying documents
- Contact a criminal defense attorney
- Do not communicate independently with the police or the public prosecutor's office.
Preparing the defense attorney meeting:
- Chronological presentation of facts for yourself
- Compile all relevant documents (contracts, emails, bank statements)
- Record names of witnesses who could be exculpatory.
- Write down open-ended questions for the consultation meeting.
After the initial consultation with the defense attorney:
- Request an attorney to allow access to the case file
- Discuss and establish defense strategy
- Decide on behavior regarding statements
- Have the defense brief drafted by the defense counsel
During the investigative proceedings:
- Maintain regular contact with the defender
- Share all developments and new findings immediately.
- Do not make unauthorized contact attempts with involved parties
- Do not destroy or alter any documents.
As the proceedings are nearing their conclusion:
- Have the possibilities of a procedural dismissal examined.
- Consider compensation if strategically sensible
- Prepare for indictment or dismissal
Professional defense secures your rights
A subpoena for suspected fraud is a serious matter that can threaten your entire existence. While the legal requirements to prove fraud are high, law enforcement agencies act consistently when there is a corresponding initial suspicion.
Your response to the summons can determine the further course of the proceedings. The right to remain silent is not an admission of guilt, but a fundamental right of the accused that you should use without hesitation.
An experienced criminal defense attorney knows the authorities' investigative tactics and the weaknesses in evidence for fraud charges. They can analyze the case file, uncover errors in investigations, and develop a well-thought-out defense strategy. Legal expertise is indispensable, especially in complex economic matters.
Investing in professional criminal defense from the very beginning of the investigation pays off. The sooner your defense attorney is involved, the better they can protect your interests and steer the proceedings in a favorable direction. Many cases can be dismissed as early as the investigation stage through a convincing defense strategy.
At SITTIG LAW, we have many years of experience defending against fraud allegations. Our expertise at the intersection of criminal law and commercial law allows us to quickly grasp complex cases and defend them effectively. Contact us promptly for a comprehensive initial consultation – we are also available for you in emergencies.
Frequently asked questions
No, you can miss the appointment without immediate coercive measures being imposed against you. However, you should not ignore the summons, but rather have it responded to by a lawyer. They can request access to the case file and communicate with the investigative authorities. However, if you are summoned by the public prosecutor's office or a court, your failure to appear may have consequences.
This hope is understandable, but in most cases a dangerous misconception. Even if you are subjectively innocent, statements can be misunderstood or inadvertently contain incriminating information. Making a statement without prior legal advice and access to the file is often detrimental. Exercise your right to remain silent and seek comprehensive advice first.
The investigation will proceed even without your cooperation. The public prosecutor's office will decide whether to press charges based on the available evidence. Without your defense perspective, exculpatory aspects may be missing from the case file. Furthermore, your silence could be interpreted as a lack of willingness to cooperate, which could have a negative impact on sentencing later. It is better to have a defense attorney respond professionally.
The duration of proceedings varies significantly depending on the complexity of the case. Simple cases can be concluded within a few months, while complex economic criminal cases can drag on for years. Extensive investigations, international letters rogatory, or expert opinions prolong the proceedings. Your defense attorney can work towards an acceleration through targeted procedural advancement.
Restitution for damages is an important factor in fraud allegations, which can influence both the decision to discontinue proceedings and sentencing. Under Section 153a of the German Code of Criminal Procedure (StPO), the public prosecutor's office may discontinue proceedings in exchange for a monetary penalty and restitution for damages. However, payment should never be made without legal advice, as it could be interpreted as an admission of guilt.
In fraud by deception, the accused deceives about their intention or ability to fulfill the agreed-upon services at the time of contract formation. The classic case is the purchase of goods without the intention to pay or despite knowing their own insolvency. Proof is difficult, as the subjective state of mind at the time of contract formation must be proven. Subsequent payment difficulties are not fraud, but rather civil law default on payment.
Electronic communication plays a central role in fraud proceedings. Emails, chat messages, and transaction data can be both incriminating and exculpatory. They document the timing and content of agreements, but can also be misinterpreted. It is important that such evidence be viewed in its entire context. Your defense attorney will analyze the digital footprints closely and ensure their evaluation within the framework of the defense strategy.
The penalty ranges from a fine to five years' imprisonment, and in particularly serious cases, up to ten years. The specific penalty depends on many factors: amount of damage, fault, prior record, confession, reparation of damages, and impact on the victim. For first-time offenders and small amounts of damage, a fine is often imposed or the proceedings are stayed subject to conditions. Imprisonment is threatened for systematic action or high damages.
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