Territorial Jurisdiction in Online Fraud

What is Territorial Jurisdiction?

Territorial jurisdiction in criminal law refers to assigning a criminal case to a specific court within a defined geographic area. The general rule establishes that the competent court is the one located where the crime was committed. However, if the exact place of the crime is unknown, jurisdiction is determined following a subsidiary order: the court in the place where the evidence of the crime was discovered, where the alleged offender was apprehended, where the alleged offender resides, or any court that first became aware of the crime.

In cases of violence against women, territorial jurisdiction prioritizes the victim’s residence. Territorial jurisdiction in criminal proceedings is ex lege, meaning it is defined by law and cannot be altered by agreement between the parties. This ensures that judges review their own territorial jurisdiction in every criminal case.

Court Analysis

Article 14.2 of the Spanish Criminal Procedure Act (LECrim) states:

“Except in cases expressly and restrictively assigned by the Constitution and laws to specific Judges and Courts, the competent authority for criminal investigation will be the Examining Magistrate of the district where the crime was committed, or the Judge for Violence Against Women, or the Central Examining Magistrate for those crimes specified by law.”

From this, it is crucial to determine the place where the crime occurred. Regarding fraud, the repeated case law of the Supreme Court (Supreme Court Rulings 20985/18 of January 24, 2019, and 20975/18 of January 31, 2019) establishes that:

“Fraud is consummated, according to the consistent view of this Chamber, in all places where the actions of the perpetrator (deception) or the victim (dispossession of assets) occurred, and where the financial harm took place (theory of ubiquity). Jurisdiction, in principle, belongs to the first Court that became aware of the facts, in line with the criteria set out in Articles 14.2 and 15 of the Criminal Procedure Act.”

Likewise, the consolidated doctrine of the Supreme Court (ATS October 21, 2015; July 3, 2015; May 8, 2015; June 28, 2018; October 24, 2019; and October 15, 2019) has adopted a new criterion complementary to the theory of ubiquity, known as the criterion of effectiveness. Under this approach, jurisdiction will be determined by the location where the police investigation can be most effective, where elements of the crime have been carried out, where computer equipment can be accessed, and where the proceedings can be conducted efficiently.

As for computer fraud, the Court considers that the ubiquity criterion may be inadequate and that jurisdiction should be assigned to the Court best positioned to conduct the investigation. However, this criterion should only be applied when there is a solid reason to justify departing from the usual jurisdictional rule. The mere fact that fraud was committed electronically is not enough for jurisdiction to be automatically determined by the suspect’s residence. There must be a certain level of complexity in the investigation that justifies attributing jurisdiction to the court most capable of handling it.

Among the situations that may justify applying this principle of functionality, though not exhaustively, are the following: fraud cases in different provinces all linked to the same person, in which case it is reasonable to assign jurisdiction to the suspect’s residence; fraud cases where most of the criminal elements occur at the suspect’s residence; fraud cases where, due to complexity, key elements occur in different locations but evidence is concentrated at the suspect’s residence; and online fraud cases where it is difficult to determine the place of commission because multiple locations are involved, even outside Spain.

Conclusion

In conclusion, Article 14.2 of the Criminal Procedure Act establishes that, except for specific exceptions, jurisdiction for criminal proceedings lies with the Judge of the place where the crime was committed. In fraud cases, the Supreme Court maintains that jurisdiction belongs to the first Court to become aware of the case, since the crime is considered consummated in all places connected with the deception and financial harm.

However, in complex cases such as computer fraud, the Supreme Court has introduced the “criterion of effectiveness,” which allows jurisdiction to be assigned to the Court best able to conduct an effective investigation. This criterion applies only when there are strong reasons to justify assigning jurisdiction to a different court than initially established. The mere use of electronic means is not enough to change jurisdictional rules without proper justification.

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