Fraud specialist lawyers in Barcelona

The crime of fraud under Article 248 of the Penal Code punishes deceiving another person into carrying out an act of disposition that causes harm to the person or a third party, acting with the intention of profit.

This deception can consist of claiming something to be true that is not, or of concealing relevant circumstances about the transaction that, had they been known by the victim, would have led them not to carry out the act of disposal.

For behavior to be criminal, the deception must be significant .

Initially, the courts understood that the victim had a duty of self-protection, such that if the victim fell prey to deception due to failure to comply with these duties, the deception was not considered sufficient and the acts did not constitute a crime. However, the courts currently only exclude fraud when it involves a gross or very obvious deception, meaning that it can be detected by anyone.

In any case, to assess the extent of the deception, the victim’s personal circumstances and mental capacities are taken into account. Thus, even if the deception is crude or very obvious, if the perpetrator targets a particularly vulnerable person, for example, because they suffer from a mental illness, this deception may be considered sufficient. The circumstances under which the deception occurs are also taken into account, for example, whether it occurs within the framework of a long-standing business relationship, whether the perpetrator and the victim knew each other previously, etc.

The penalty to be imposed varies depending on the amount defrauded.

• If this amount is greater than 400 euros, the penalty is imprisonment from 6 months to 3 years.
• When the amount defrauded does not exceed 400 euros, the acts are punishable by a fine of 1 to 3 months.

The crime of fraud is punishable by a higher penalty, imprisonment of 1 to 6 years and a fine of 6 to 12 months, when any of the following circumstances occur:

• If it affects essential goods, housing or other goods of social utility.
• When it is done by abusing the form of a third party or by hiding or rendering useless a public or official file or document.
• If it affects assets that are part of the artistic, historical, cultural or scientific heritage.
• When it is especially serious, given the extent of the damage and the economic situation in which it leaves the victim.
• If the value of the defrauded item exceeds 50,000 euros or affects many people.
• When it is committed by taking advantage of the personal relationship with the victim or by taking advantage of the perpetrator’s professional credibility.
• If the perpetrator, at the time of committing the crime, had already been convicted of three or more fraud offenses.
• Procedural fraud, which consists of manipulating evidence in a judicial proceeding or using similar fraud, causing the court to issue a ruling that is detrimental to the opposing party or a third party.

If the value of the defrauded funds exceeds €250,000, the penalty is four to eight years in prison and a fine of 12 to 24 months.

Aside from the basic type of fraud discussed above, certain specific behaviors provided for in Article 249 of the Penal Code are punishable by the same penalty:

• Computer fraud , committed by a person who obtains an unauthorized transfer of money or other assets using computer manipulation.
• Fraud committed by fraudulently using credit or debit cards, traveler’s checks, or any other payment instrument other than cash , to carry out transactions with a third party (for example, using someone else’s credit card to make a purchase in a store or to withdraw money from an ATM). Theft or misappropriation of these payment instruments for fraudulent use is also punishable, even if the fraud itself does not actually occur.
• The manufacture, possession, or sale to third parties of devices, data, or programs designed to commit computer fraud or credit card fraud.

On the other hand, Article 251 of the Penal Code punishes the following behaviors with a prison sentence of 1 to 4 years:

• The sale or lease of a property by someone who lacks the power to dispose of it.
• The sale or lease of movable or immovable property, concealing the existence of encumbrances (for example, the sale of a home without disclosing the existence of a mortgage).
• Cases of double sale, that is, when a person sells an item and, later, when they are no longer the owner, sells it again to another person.
• The granting of a simulated contract to the detriment of another.