Fraud
Criminal Lawyers in Fraud
Recent Success Cases
Fraud
Result: Acquittal
Court: Provincial Court
Prosecution: Provincial Court
Requested sentence: 6 years imprisonment for aggravated offence of continuous fraud
Fraud
Result: Acquittal
Court: Criminal Court
Prosecution: Public Prosecutor's Office
Requested sentence: 2 years imprisonment for the crime of swindling
The crime of fraud
Lawyers Fraud in Barcelona
The crime of fraud requires deception on the part of the perpetrator. This deception must cause another person to make a mistake that leads them to make a disposition of assets detrimental to themselves or third parties. Article 248 of the Criminal Code requires the deception to be sufficient, which means that the perpetrator’s ruse must provoke the error that leads to the transfer of assets.
Furthermore, the deception must be suitable because it can mislead the average person and the specific victim with his particular circumstances and chances of escaping the perpetrator’s machinations.
On the other hand, there must be a causal link between the deception which caused the error and the act of disposition which caused the damage. Therefore, the deception must precede or coincide with the moment the dispositive action takes place. In other words, the deception must be the cause of the mistake, the mistake must cause the act of disposition, and the act of disposition must be the cause of the financial damage.
What conditions must be met for a fraud offence to exist?
We are specialized lawyers in fraud crimes
Deception in the fraud offense causes a mistake in the person being defrauded that allows part of his or her assets to be made available to the fraudster. The deception must be suitable to produce this transfer of assets. The fraudster, taking advantage of the system of trust that governs commercial relations and business, circumvents the mechanisms of protection and defense through a preconceived deception that allows him to take possession of the money or goods of a third party.
Deception "preceding or concurrent" to fraud
Lawyers specialising in fraud
The Supreme Court considers that the deception necessary for the offense of fraud to exist must be sufficient. It understands that deception is sufficient when it produces a fraudulent effect because the person who deceives unlawfully increases his assets and therefore consummates the fraud.
An exception will be if the deception is so crude that it cannot mislead a person endowed with minimum intelligence and caution. In this case, the defendant accused of swindling would be exempted from criminal liability.
Essential error in the passive subject
The most recent jurisprudential doctrine has tempered the scope of the exclusion of criminal liability for the infringement of the duty of self-protection of the defrauded party. In this way, it aims to prevent the injured party from falling under any obligation to defend himself against potential deception. Deception is only considered gross deception when anyone can appreciate its gross and apparent nature.
Consequently, the nature of the deception will depend on the deceptive actions deployed by the fraudster, not on the self-protection mechanisms deployed by the victims.
It should be noted that if the persons who suffer an attempted deception could always identify the trick with which the fraud is being perpetrated, the fraud offense could logically never be consummated.
Disposal of property
In the case of fraud in criminalized legal transactions, the decision to default on payment or the provision of contracted services doesn’t need to be taken before the conclusion of the contract. It is sufficient that this decision is made prior to the error leading to asset displacement.
In the fraud offense, the deception precedes the execution of the contract, and the fraudster knows in advance that he will not meet the payment, producing the disposal of assets and consummating the offense.
In a criminalized legal transaction, the fraudster gives the contract a semblance of normality and gains an economic advantage from its non-performance. Thus, fraud is not excluded in a bank discount contract if the idea of defrauding appears later in the legal or contractual relationship.
Profit motive
The definition of the offense of fraud in the criminal code requires the concurrence of a profit motive, which is understood as the intention to achieve a financial advantage. The desire generates the action to obtain the benefit of patrimony with economic value.
When the fraudster deceives, he does so to increase his wealth at the expense of the deceived. Therefore, the intention exists simultaneously with the deception and occurs before disposing of the assets that transfer them from the deceived victim to the deceiving fraudster.
Consummation and attempt
Fraud is consummated at the moment in which a financial loss is caused. The attempt in the fraud offense appears with the generation of the deception, which is prior and apt to induce the error. The error consists of a false representation of reality caused by the deception. The damage is caused by a reduction in the value of the assets of the person being defrauded.
Modalities of the offense of swindling
There are different types of fraud offenses. In our law firm, Esteban Abogados Penalistas, we are experts in fraud offenses with numerous successful cases to back us up.
Contract simulation fraud
In contract simulation fraud, the perpetrator simulates a serious intention to enter into a contract but only seeks to benefit from the obligations of the other contracting party. He conceals from the other party his intention to breach his contractual obligation and abuses the trust of his victim.
In this way, he uses standard contractual practices to unlawfully satisfy his profit motive based on a preconceived plan based on the non-fulfillment of the assumed counter-performance.
Computer fraud
Computer fraud differs from basic or ordinary fraud in that there is no personal relationship between the deceiver and the deceived.
Consequently, there is also no mistake. The fraudster uses a computer device through which he modifies, alters, or hides information in a computer system intending to obtain an unwanted transfer of an asset, either to the fraudster or to a third party.
The offense of aggravated fraud
Article 250 of the Criminal Code establishes that fraud will be aggravated and, therefore, will carry a higher penalty if any of these circumstances concur in the commission of the offense of fraud:
- The scam concerns articles of primary necessity or similar goods, such as housing.
- The scam is carried out with the abuse or manipulation of a signature or document of another.
- It concerns cultural, scientific, artistic, or historical heritage assets.
- It is very serious due to the importance of the damage and the economic state in which the victim or their relatives are left.
- The value of what has been swindled exceeds 50,000 euros.
- Abuse of personal relationships or professional credibility between the fraudster and the victim.
- Proceeds by manipulating or falsifying the evidence provided in a trial, generating an error in the Court, damaging the interests of another party or third parties.
What is the penalty for a fraud offense?
Basic fraud is punishable under Article 249 of the Criminal Code with a prison sentence of six months to three years if the amount defrauded does not exceed 400 euros. Otherwise, it is a misdemeanor that does not carry a prison sentence.
The judge sets the final penalty for the crime of fraud according to the amount defrauded, the relationship between the fraudster and the cheated, the means used to trick, and the economic damage caused to the victim.
If the assumptions established in Article 250 of the Penal Code are met, the fraud is considered particularly serious, and the penalties are from one to six years in prison and a fine of six to twelve months.
When is the statute of limitations for a fraud offense?
According to current legislation, the statute of limitations for the basic offense of fraud, found in articles 248 and 249.1 of the Criminal Code, is five years. If the scam is aggravated, the statute of limitations increases to ten years.
It should be borne in mind that these limitation periods are not timeless. They depend on and vary according to the rules in force between the date the offense was committed and the law in force at the time of the trial.
The aggravating circumstance of abuse of trust or personal relationships in the offense of fraud
The Criminal Division of the Supreme Court analyses in its Ruling 132/2021 of 15 February the appropriateness of applying the aggravating circumstance of abuse of trust or personal relationships in the crime of fraud.
The Supreme Court considers it necessary to restrict its use insofar as an additional element is required to understand that the abuse of trust that necessarily accompanies all deception in a fraud goes beyond what is usual in the crime of fraud.
In most cases, there is a personal relationship between the perpetrator of the fraud and the victim, and therefore an abuse of trust that is already included in the definition of the offense, so that convicting with the aggravating circumstance produces bis idem, which means condemning twice for the same abuse of trust that is already included in the type of fraud.
For the aggravating circumstance to be applied, the Supreme Court requires that the relationship between the fraudster and the victim be different from that which derives from the same deceitful relationship. The breach of trust inherent to the deceptive conduct must refer to a trust before and separate from the one that takes place as a presupposition of the commission of the fraud. In other words, there must be a breach of trust before the breach of trust is deemed necessary to carry out the scam.
This means that, for the courts to consider the aggravating circumstance, there must be a prior personal relationship between the fraudster and the defrauded, which gives the abuse a greater dimension and, consequently, a greater criminal reproach.
The betrayed trust must have existed before the betrayal. Suppose the trust is contemporary to the deception insofar as it is established to deceive to achieve a financial benefit. In that case, it does not constitute an aggravated fraud.
If you need a criminal lawyer in Barcelona who specializes in resolving any problem related to the crime of fraud, don’t hesitate to contact us.