Fraud

Criminal Lawyers in Fraud

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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

The crime of fraud

Lawyers Fraud in Barcelona

The crime of fraud requires that there is 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 that is detrimental to themselves or to 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, in the sense that it must be capable of misleading the average person and also the specific victim with his particular circumstances and his 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 at which 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 pecuniary damage.

What conditions must be met for a fraud offence to exist?

We are specialized lawyers in fraud crimes

Deception in the offence of fraud 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 defence 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 offence of fraud to exist must be sufficient. It understands that a 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 would be if the deception is so crude that it does not have the capacity to mislead a person endowed with a minimum of intelligence and caution. In this case the defendant accused of the offence 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 to be gross deception when its gross and obvious nature can be appreciated by anyone.

Consequently, the nature of the deception will depend on the set of deceptive actions deployed by the fraudster, not on the self-protection mechanisms deployed by the victims.

It should be borne in mind that, if the persons who suffer an attempted deception could at all times identify the deception with which the fraud is being perpetrated, the offence of fraud could logically never be consummated.

Disposal of property

In the case of fraud in criminalised legal transactions, it is not necessary that the decision to default on payment or the provision of contracted services is taken prior to the conclusion of the contract. It is sufficient that this decision is made prior to the error that leads to the displacement of assets.

In the offence of fraud, 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 offence.

In a criminalised legal transaction, the fraudster gives the contract a semblance of normality and gains an economic advantage from its non-performance. Thus, in a bank discount contract, fraud is not excluded if the idea to defraud appears at a later point in the legal or contractual relationship.

Profit motive

The definition of the offence of fraud in the criminal code requires the concurrence of a profit motive, which is understood as the intention to achieve a financial advantage. It is the desire that generates the action with the aim of obtaining a benefit of patrimony with economic value.

When the fraudster deceives, he does so with the intention of increasing his wealth at the expense of the deceived. Therefore, the intention exists simultaneously with the deception and occurs before the act of disposing of the assets that transfers 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 offence of fraud 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 offence of swindling

There are different types of fraud offences. In our law firm, Esteban Abogados Penalistas, we are experts in fraud offences 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, on the basis of a preconceived plan based on the non-fulfilment 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, with the aim of obtaining an unwanted transfer of an asset, either to the fraudster or to a third party.

The offence of aggravated fraud

Article 250 of the Criminal Code establishes that fraud will be aggravated and, therefore, will carry a higher penalty, in the event that any of these circumstances concur in the commission of the offence of fraud:

  • The swindle takes place with respect to articles of basic necessity or similar goods, such as housing.
  • The swindle is carried out with abuse or manipulation of a signature or document of another.
  • It is carried out in relation to 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 offence?

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 misdemeanour, which does not carry a prison sentence.

The final penalty for the crime of fraud is set by the judge according to the amount defrauded, the relationship between the fraudster and the defrauded, the means used to defraud 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 to be 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 offence?

According to current legislation, the statute of limitations for the basic offence of fraud, which is found in articles 248 and 249.1 of the Criminal Code, is 5 years. If the fraud 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 on which the offence 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 offence of fraud

The Criminal Division of the Supreme Court analyses in its Ruling 132/2021 of 15 February the appropriateness of the application of the aggravating circumstance of abuse of trust or personal relationships in the crime of fraud.

The Supreme Court considers that it is 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 offence, so that convicting with the aggravating circumstance produces a bis idem, which means convicting twice for the same abuse of trust that is already included in the type 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 offence, so that convicting with the aggravating circumstance produces a bis idem, which means convicting twice for the same abuse of trust that is already included in the type of fraud.

In order 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 that is inherent to the deceptive conduct must refer to a trust prior to 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 prior to the breach of trust deemed necessary to carry out the fraud.

This means that, in order for the courts to consider that the aggravating circumstance exists, 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 prior to the betrayal. If the trust is contemporary to the deception, insofar as it is established with the aim of deceiving in order to achieve a financial benefit, it does not constitute an aggravated fraud.

If you need a criminal lawyer in Barcelona specialised in resolving any problem related to the crime of fraud, please contact us.

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