Summons for Computer Fraud, Section 263a German Criminal Code

What is Computer Fraud?

Computer fraud (Section 263a German Criminal Code) was inserted into the Criminal Code after fraud (Section 263 German Criminal Code). It regulates cases in which the assets of another person are damaged with the help of a computer or other technical data processing. The protective purpose of the norm, just like with fraud, is always the assets of another person.

Accordingly, a person is liable to punishment if, with the intent to obtain an unlawful pecuniary advantage for himself or a third party, he damages the assets of another by influencing the result of a data processing operation through incorrect program design, by using incorrect or incomplete data, by unauthorized use of data, or otherwise by unauthorized interference with the process.

Types of Computer Fraud

Within the scope of computer fraud, there are various types of offenses for which a person can be held criminally liable. The legislator has explicitly listed these in Section 263a German Criminal Code. Below, we briefly discuss each type of offense.

Influence through incorrect program design

A person is liable to punishment if they modify or delete a program or parts of a program (software) in such a way that it causes financial damage to another person.

An example of this variant is the modification of software in a slot machine to obtain a win, or the modification of time tracking software in one’s favor.

Influence through the use of incorrect or incomplete data

A person is liable to punishment if they use incorrect data or conceal data, thereby misrepresenting the facts.

This is the case, for example, when a non-existent claim is demanded in an automated process (e.g., in automated dunning procedures). Or forged credit cards are used to withdraw cash.

Influence through unauthorized use of data

A person is liable to punishment if they obtain data unlawfully (a second offense may be present here) and use it to obtain a pecuniary advantage. This is probably the most common variant of Section 263a German Criminal Code.

Examples include the use of other people’s accounts on the internet or the use of another identity. Anyone who steals an EC card and uses it at an ATM is also liable to punishment. But phishing emails can also fall under this if they are used to obtain other people’s data.

Influence through other interference with the data processing program’s operation

This offense serves as a catch-all provision and is intended to ensure that new case variants from everyday digital life are also covered by the law. It must therefore involve an influence on the program in a manner other than those mentioned above.

Computer Fraud or Fraud: What’s the Difference?

The introduction of the offense of computer fraud was deemed necessary because many newer situations in the digital world were no longer covered by the offense of fraud. In the case of fraud, another person must be deceived, and this deception must lead to an error, through which the injured party makes a disposition of assets.

In many cases involving computers, however, this was not the case, as the fraud was not directed directly at a human, but initially at a machine. The most common case is probably fraud at an ATM, which is induced by inserting a forged or stolen, genuine bank card to dispense cash and damage the assets of the card and account owner.

Here, no real person is deceived (except at the counter), but only a machine, the ATM. This act is not covered by fraud, but by computer fraud.

Conviction for Computer Fraud: What Penalty Can Be Expected?

Computer fraud carries the same penalty as “normal” fraud under Section 263 German Criminal Code. Computer fraud is punishable by a prison sentence of up to 5 years or a fine if a conviction occurs.

In cases under Section 263a German Criminal Code in conjunction with Section 263 (2) to (6) German Criminal Code, a penalty of up to 10 years may even be imposed. This is the case, for example, if the computer fraud is committed by a gang or if the victim suffers economic hardship as a result of the act.

The attempt is also punishable, as is the preparation of computer fraud by manufacturing, procuring, or storing software for the act, or by procuring, storing, or transferring passwords or codes. Here, a prison sentence of up to 3 years (para. 3) may be imposed.

Those affected should also consider that a conviction can lead to job loss or poorer chances in the job market. Depending on the conviction, the conviction may also appear in the certificate of good conduct. Even for one’s own environment, the mere suspicion of such a crime can have far-reaching consequences.

How should I behave if I receive a summons for computer fraud?

Anyone accused of computer fraud should never take it lightly. A conviction can have unforeseen and serious consequences. It is important not to make a statement to the police initially. If you receive a summons, it is best not to comply with it, but to contact a lawyer as soon as possible.

Our experienced criminal defense lawyers will cancel the summons for you and request access to the files to get a comprehensive picture of the status of the investigation. Only then will we decide whether a statement to the police seems advisable. Together, we can prepare the defense strategy.

As a rule, it is always appropriate to exercise your right to remain silent, especially if you are questioned without legal counsel. Remember: a statement can always be used against you. Even without realizing it, you can incriminate yourself with a seemingly harmless statement and thus contribute to your own conviction. Silence, on the other hand, is considered a neutral act and can never be to your disadvantage. Therefore, never make voluntary and spontaneous statements to law enforcement authorities. You always have the right to consult a lawyer, even during a search.

Should a house search occur, tolerate the police measures, but do not assist the officers with the search. You are not obliged to hand over passwords or other data. Furthermore, you should demand to see the search warrant and ensure that a complete record is made.

How can a lawyer support me?

Ideally, contact an experienced law firm specializing in computer fraud as early as possible. Feel free to note down our contact details to reach us in an emergency. As specialized criminal defense lawyers, we have already helped many accused individuals nationwide. We gain insight into the police and public prosecutor’s investigations and see what they “have against you” – or not. Together, we can then discuss the further course of action and advise you comprehensively on your options.

The earlier we can intervene in the proceedings, the more opportunities we have to defend you in the best possible way. Ideally, we can already bring the preliminary proceedings to a close and prevent a main hearing. Depending on the evidence, an acquittal or a lenient sentence is also possible.