Fraud is the offence of obtaining property from someone by deceiving them. It sits at the centre of most economic crime cases in Spain, from investment schemes to online fraud and disputed commercial deals.
This article sets out what the prosecution must prove for a conviction, the penalties involved, and the arguments that most often decide these cases.
What the law requires
Article 248 of the Criminal Code defines fraud as using sufficient deceit to cause another person to make a mistake, leading them to hand over property to their own detriment or that of a third party, with the offender acting for profit.
Courts break this into a chain of elements, and every link has to hold.
- Sufficient deceit. A misrepresentation capable of misleading a reasonably careful person.
- Error. The victim actually formed a false belief as a result.
- Disposition of property. The victim handed something over, or authorised a payment.
- Loss. There is measurable financial harm.
- Intent to profit. The offender sought a gain for themselves or someone else.
- Causation. Each step led to the next in an unbroken sequence.
The deceit must also exist before the property changes hands. Failing to honour an agreement entered into in good faith is a civil matter. It becomes a criminal offence only where the intention never to perform was there from the start.
Penalties
Under Article 249, the basic offence carries a prison sentence of six months to three years where the amount exceeds 400 euros. Below that figure the conduct is treated as a minor offence and punished with a fine.
Article 250 raises the range to one to six years in prison plus a fine where certain circumstances apply. These include fraud affecting essential goods or housing, abuse of a signature, procedural fraud, an amount above 50,000 euros, fraud affecting a large number of people, and abuse of a personal or business relationship of trust.
Where two or more of those circumstances are present, or the amount is especially high, the penalty rises further still.
Sufficient deceit and the victim's own care
The requirement that deceit be sufficient is the most heavily litigated element of the offence.
Spanish case law holds that criminal law does not protect against every commercial disappointment. Where a victim could have avoided the loss through ordinary diligence, such as reading a contract or verifying an obviously implausible claim, courts have found the deceit insufficient and directed the parties to the civil courts.
This works both ways. The standard adjusts to the victim. Deceit that would not fool an experienced investor may well be sufficient when aimed at an elderly or otherwise vulnerable person.
Fraud in digital cases
Online fraud, card misuse and unauthorised transfers are now among the most common forms of the offence. These cases raise their own difficulties, particularly around identifying who actually controlled an account and establishing which court has jurisdiction when the parties are in different provinces or countries.
Cross-border evidence and the reliability of digital traces are frequently the decisive issues rather than the underlying facts.
Defence strategies
- The dispute is civil. Showing genuine intention to perform at the time of contracting removes the criminal element entirely.
- The deceit was not sufficient. Where the claim was implausible on its face and easily checked, the offence may fail.
- No loss. If no measurable harm occurred, an essential element is missing.
- Amount. Disputing the sum can move the case below an aggravating threshold, or below 400 euros altogether.
- Attribution. In digital cases, linking a specific person to the account or device is often the weakest part of the prosecution.
Key points
- Fraud requires deceit that existed before the property changed hands.
- A broken contract is not a crime unless the intention never to perform was there from the outset.
- The basic penalty is six months to three years above 400 euros, and a fine below it.
- Aggravating circumstances under Article 250 raise the range to one to six years.
- Whether the deceit was sufficient, judged against the victim's own diligence, decides many of these cases.
If you are under investigation for fraud or have been the victim of it, the earliest decisions shape the case. Contact our criminal defence team for an assessment. You may also want to read our analysis of money mule cases and the relevant case law.
