The offence of fraud in the criminal code

The crime of fraud, on many occasions, is quite difficult to determine due to its intrinsic characteristics and what is included in our Penal Code. However, when there are circumstances and evidence that demonstrate its commission, this legal text includes quite high penalties that can easily lead to imprisonment.

Knowing the complexity of this crime, we as lawyers specialising in criminal law, in this article we want to tell you everything you need to know about it and clarify what is specified by the Penal Code and the current doctrine.

What is fraud and where does it appear in the Penal Code?

The definition of fraud is found in Title XIII of the Penal Code, i.e., that which deals with crimes against the socio-economic order and against patrimony, and which forms part of Chapter VI called "Fraud". Specifically, it is placed under Article 248.

In criminal law, fraud is understood as an action by which a subject uses deception to try and get another to commit an error that induces them to commit an act of disposition to the detriment of others or themselves. It must always be done for profit.

Within this definition there are a series of indispensable elements that must be present for this offence to be committed. Specifically, these are 'deception', 'act of disposal of property', 'error', 'profit motive' and 'prejudice'. In addition, in any legal proceedings opened on this issue, it is common to add the causal link and other factors and requirements specific to the charge.

Telematic and computer scams

Some of the latest amendments to the Penal Code focused on computer crimes, which are those carried out using new technologies such as the Internet and similar tools. Article 248.2 was added for this purpose.

Article 248.2 of the Criminal Code is in turn divided into two parts, which are:

1. In criminal law, computer fraud is understood as the action, with an evident profit motive and making use of computer manipulations or similar, to carry out an unauthorised transfer of any patrimonial asset to the detriment of a specific subject.
2. The action of introducing, manufacturing, possessing and sharing or selling computer programmes intended for the commission of a fraud, as defined in Article 248 of the Criminal Code, is also recognised as fraud.

What are the penalties for fraud in the Penal Code?

Fraud carries penalties for those convicted of it of between six months and three years in prison. However, this is a general assumption since, depending on the amount that has been swindled, the prison sentence can be increased or aggravated. For example, Article 250 of the Penal Code states that if the offence has involved more than €50,000 or €250,000, depending on the typology, the range of penalties will be between twelve months and six years imprisonment.

Deception is fundamental for fraud to exist in the Criminal Code.

It is important to note that, if there is no deception, the offence of fraud will not have existed. Specifically, deception is defined as any behaviour that is sufficient and adequate to produce error in the affected party. This can be carried out through language in spoken or written form (with the presentation of a false document, for example), through a certain action (causing an accident in order to collect an insurance claim) or through gestures alone. A nod of the head or a flick of the finger can be enough to be understood as deception if the consequences cause damage to the other party.

Moreover, deception can in some cases be by omission and thus also give rise to fraud. However, this poses difficulties as it is difficult to distinguish it from civil fraud. Although it is difficult to prove and even more difficult to prove, the fact is that this case is also included in the Criminal Code and should therefore be mentioned.

Jurisprudence of the Supreme Court regarding the offence of swindling

As you are well aware, the judgments of the Supreme Court establish jurisprudence and, in this sense, it has been quite abundant and prolific on the subject of fraud. So much so that it has been able to configure all the elements that must be present for this offence to be committed. These are as follows:

1. Concurrent deception

The deception that gives rise to the fraud must be concurrent and precedent, which means that it must have occurred before and during the commission of the crime. In previous Penal Codes, such as that of 1973, they were listed in detail but, due to the great variety existing, they were only collected without exemplary statements from 1995 onwards.

2. Deception enough and enough

This means that the deception with which one tries to induce another to commit a certain action must be proportionate to the achievement of the intended purpose. To this end, the suitability of the strategy for the transfer of assets must be taken into account in relation to the personal circumstances of the person concerned, the circumstances at the time and those of the company. This must mean that the deception is sufficiently serious and realistic.

3. To cause error in the other party

The deceit must necessarily produce an error in the passive subject as a consequence of his ignorance of the matter or his inaccurate or distorted knowledge of reality. This will ultimately lead to him acting under a false assumption, since the motive for his action is flawed from the outset. It is at this point that the transfer of property occurs.

4. The act of disposing of the victim's assets

This point obviously refers to the act of disposal and possession of the property that has been handed over by the passive subject as a result of the deception to which the active subject has induced him.

5. The profit motive

The jurisprudence of the Supreme Court also indicates that, in order for fraud to occur, it is indispensable that the active subject manifests a profit motive as a motivational element.

6. The Causal Nexus

The Causal Nexus is an indispensable element for the imputation of a crime. Specifically, it refers to the causal relationship that exists between the deception and the damage caused by it. Obviously, there must be a correlation between the two that demonstrates the fraudulent dynamic.

Conclusions on Fraud in the Criminal Code

I'm sure that, after all you have just read, a wide variety of very famous and well-known scams have come to mind. In fact, you probably remember the classic 'stamp scam', which was carried out by children or people pretending to be mentally ill and trying to exchange counterfeit banknotes for real ones of lesser value, or the 'Nigerian letter scam', which was based on sending an e-mail in which one person asked another for a certain amount of money to give him the necessary papers to collect an inheritance, as he was unable to enter the country to pay the inheritance.

In any case, these examples seem very 'commonplace', but the truth is that they have affected many people and that there are other much more sophisticated scam crimes that are easier to fall into. Just think how easily our credit cards can be cloned when shopping in an establishment or withdrawing money from an ATM, for example.

If you think you have been a victim of this crime, have any suspicions or doubts, do not hesitate to contact us.