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“Of the swindles” is the title of the First Section, of the Chapter VI, of the Title XIII, of the Book II of the Spanish Penal Code (CP). Therefore, it is other crime against the legal good patrimony and socioeconomic order, in this case included within the category of the frauds.
Perhaps, it is one of the most popular crimes, the word “swindle” is even utilized for describing successes which form part of our usual life when we have felt fooled, for example, when you do not want to go to a nightclub or restaurant, because the alcohol or food is of bad quality, you say that you do not go because “it is a swindle”, and the same can be applicable for any other type of service for which we have paid but we have not felt duly compensated. According to the Dictionary of the Spanish Royal Academy of Language (RAE), “to swindle” can be any action which consists in “To ask or obtain money or things of value with trickeries and deceptions, and with the will of not paying”, which more or less, may fit in the social concept that we have of these kinds of deceptions and which we tried to exemplified before. However, the RAE gives another definition of the action “to swindle”, “To commit some of the crimes which are characterized by the benefit as end and the deception or abuse of confidence as means.” But, is the RAE right?, is this what we have to understand as a punishable swindle? Let us try to find this out through the following lines, though I can advance you that no.
The Chapter VI object of commentary, is made up of five articles, which we are going to use as dividing points of this writing: In the article 248, we find the common or generic crime of swindle; In the article 249, other behaviors which the CP typifies as swindle, but which do not fulfill its objective and subjective requisites according to the article 248; In the article 250, the aggravated subtypes of swindle; In the article 251, what the doctrine has denominated improper swindle, and; In the article 251 bis, the punishments that should be imposed to the legal entities, when according to the article 31 bis, they are liable of a crime of swindle.
– Article 248:
It is likely that the article 248 is the most important article of the Chapter VI, for in it, as we have already pointed out, it is defined in which consists the typical action of swindling in general terms, giving us the CP an article which can be applicable to any kind of swindle regardless of the means used, subjects implicated, place of commission, or any other factor which may limit its ambit of application. The proper or generic swindle, is the described in the article 248.
The article 248 says:
“Commit swindle those who, for-profit, utilize enough deception for producing error into another, inducing him to carry out an act of disposition either in his own prejudice or in prejudice of another person.
The convicted of swindle will be punished with the punishment of imprisonment from six months to three years. For setting the punishment will be taken into account the amount of the defrauded, the economic damage caused to the damaged, the relations between this and the defrauder, the means employed by this and any other circumstance which serve for assessing the gravity of the infringement.
If the amount defrauded does not exceed the 400 euros, will be imposed the punishment of fine from one to three months.”
As we can see, it is in the first paragraph where we find described the objective and subjective types of the crime, let us study them. First, the objective type or typical action, which consists in using “enough deception for producing error into another, inducing him to carry out an act of disposition either in his own prejudice or in prejudice of another person.” In this use of enough deception, is where we find the backbone of the crime of swindle, it is its more important element, for it is what provokes the error in the passive subject, inducing him to carry out and act of disposition in his own prejudice or the prejudice of another person, satisfying in this way too, the profit-making intention of the active subject.
The Spanish Provincial Court of Pamplona´s sentence number 767/2023 says, concerning the deception: “The Spanish Supreme Court concretes regarding the deception, essential element of the swindle, that this, commonly, “…consists in making believe someone into something which contrasts with the positive objective reality or negatively, in other words, to affirm as true what is not or to hide relevant facts or circumstances for avoiding that the passive subject could take a not tainted decision (Sentence of the Supreme Court of 20 December 2016), adding such doctrine that “…the deception to which is making reference the article 248 CP, according to the jurisprudence, has been identified as any kind of trickery, maneuver or scheming, mendacity, fantasy or fooling of the agent, which produces an error in its target and determines a patrimonial enrichment by whom carries it out…” (Sentence of the Supreme Court 331/2016, of 20 April 2016).”
Easy, no? Leaving aside, the excerpt from the sentence that we have just seen, we all know what is to deceive, because we all have felt deceived in some occasion when we have realized that the reality was not what was promised to us. But the complexity increases, because not any deception will form part of the objective type of a swindle, the CP says it very clear, it should be an “enough deception”. This seems to establish a threshold whose trespassing makes a behavior illicit, and contrariwise, licit a behavior which does not surpass it. Let us see what is said by the Spanish Provincial Court of Madrid´s sentence number 970/2023 regarding this enough deception: “The Spanish Supreme Court´s sentence number 1508/2005 of 13 December insists in the fact that the scientific and the jurisprudence coincide in affirming the difficulty of considering as enough a deceptive behavior. It is usually affirmed that the quality of the deception has to be examined according an objective and subjective criterion. The objective criterion is referred to an average man and to certain demands of enough seriousness and entity for affirming it. The subjective criterion takes into account the concrete circumstances of the passive subject. In other words, the consideration of a deception as enough passes by a double exam, the first from the perspective of a third alien to the relation created and, the second, from the optic of the passive subject, its concrete circumstances and situations, observing always, the necessary demand of self-defense, thereby being always demandable in the examination of the subjective criterion certain subjectivity from which result a seriousness and entity of the deceptive behavior.
…
When the author knowingly seeks the weakness of the victim and its gullibility above the average, in his case, it is not enough the criterion of the inadequacy of the deception according to its judgement of prognosis bases in the normality of the social facts, for the judgement of adequacy depends on the special knowledges of the author. Thus, at the end has been imposed what has been called objective-subjective module which in reality is mainly subjective.
…
That said, it has to be pointed out (Spanish Supreme Court´s sentences 1195/2005 of 9 October and 945/2008 of 10 December, that the concept of enough deception, cannot serve to move to the passive subject all the concurring circumstances unfolded by the trickeries of the author of the crime, being liable of the scheming who is its victim, who is the person protected by the penal norm against the deception of the swindler.
It means that only the blatant deception, this is, that which can be perceived by anyone, impedes the concurrence of the crime of swindle, because, in that case, the deception is not “enough”. In other words: the deception cannot be neutralized by a diligent activity of the victim (Sentence 1036/2003, of 2 September), because the deception is measured according to the deceptive activity activated by the active subject, not by the shrewdness of the victim. If this argument was stiffened, if the passive subjects were always able of detecting the scheme of the author or agent of the crime, a swindle would be never consummated and would be out of the scope of the penal law those behaviors which make use of the convincing weakness of certain victims.
In the end, in the determination of the sufficiency of the deception we have to depart from a general rule which only can be breached in concrete and exceptional situations. General rule enunciated by the Spanish Supreme Court´s sentence number 1243/2000 of 11 July in the following way: “The deception has to be understood enough when it has produced its defrauding effects, succeeding the swindler, through deception, in increasing his patrimony in an illicit way, or what is the same, it is difficult to consider that the deception is not enough when the swindle has been consummated. As exception to this general rule, it is only possible to exonerate of any liability the active subject of the action when the deception is so blatant or bizarre, that cannot induce to error anyone with a minimum intelligence and care. And we say this because to interpret this requisite of the sufficiency with a strict character, is like moving the malice or intentionality of the active subject of the action, to the passive subject, exonerating the former of liability for the simple fact, normally alien to his criminal will, that a third, the victim, has had a mistake in his way of proceeding or in the fulfillment of his obligations.”
Let us now try to sum up the above:
1. The quality of the deception has to be examined according to an objective and subjective criterion, which in reality is mainly subjective.
2. General rule: The deception has to be understood enough when it has produced its defrauding effects, succeeding the swindler, through deception, in increasing his patrimony in an illicit way.
3. Exception: Only the blatant deception, this is, that which can be appreciated by anyone, impedes the concurrence of the crime of swindle, because, in this case, the deception is not “enough”.
Finally, in relation with the objective type of the crime of swindle of the article 248, we have to add that the result of the enough deception has to be an asset transfer which causes an economical prejudice to the passive subject or a third. The Provincial Court of Barcelona´s sentence number 1971/2023 says: “In the crime of generic swindle of the article 248 CP, as well as in the specific swindles, like the one of the art. 251.1 CP, it demands an asset transfer which causes an economical prejudice to the victim that has to be preceded by: a) a preceding or concurrent deception, today conceived with a broad criterion, due to the unlimited variety of cases that the life offers; b) the deception has to be enough for achieving the ends, with enough entity for provoking the asset transfer; and c) the production of an essential error in the passive subject, who does not know what constitutes the reality.”
Let us now connect with the said by the Spanish Provincial Court of Barcelona´s sentence number 1971/2023, for analyzing the subjective type. The mentioned sentence says, that the deception has to be previous or concurrent, therefore, the fraudulent purpose of the active subject has to be previous or at least concurrent to the act of disposition in prejudice of the victim or a third. The Provincial of Court of Madrid´s sentence number 970/2023 says: “Regarding the subjective element of the crime of swindle “it requires, besides the profit-making intention, the so-called fraudulent malice which consists in the knowledge by the author that another is being deceived, producing in him a deception through the scenery built, in a way that determines the act of disposition. The existence of such element, on the basis of its nature, is necessary to be obtained through an inference which, based in data accredited, generally in the own mechanic of the facts, naturally drives to this conclusion” (Spanish Supreme Court´s sentence number 527/04 of 26 April.)
Or the Spanish Supreme Court´s resolution 9431/2023: “Regarding the fraudulent purpose, this chamber demands for being able to talk about a crime of swindle, that the deception has to be previous to the contract, in other words, prior to the contract, and the active subject of the crime knows before that he will not be able or will not want fulfill his obligations, and simulating the contrary, he originates an error in the other party, who fulfills its part, what produces the asset transfer which consummates the crime, damaging himself (Spanish Supreme Court´s sentence number 261/2021 of 22 March).”
Hence, we are always before a malicious crime which cannot be committed by imprudence. To the defrauding malice, we have to add always the profit-making intention, in other words, of obtaining an unjust enrichment with the deception.
The demand that the defrauding malice has to be previous or concurrent, is especially important for distinguishing the penal illicit from the simple civil illicit, for in this last case, who does not fulfill his part in a legal business, is doing it, without having, previously to the act of disposition of the other party, the intention of not fulfilling his part. For example, the Spanish Provincial Court of Madrid´s sentence number 6045/2023: “Thus, as we said in the Spanish Supreme Court´s sentence of 16 October 2007, it is important to remember the distinction between the civil malice and the penal malice. The Spanish Supreme Court´s sentence of 17 November 1997, points out that: “The dividing line between the penal malice and the civil malice in the crimes against the patrimony, is situated in the typicality, in a way that only if the behavior of the agent is typified according to the precept of swindle is punishable the action, not supposing this to criminalize all lack of contractual fulfilment, because the legal order establishes remedies for reestablishing the empire of the Law when it is infringed for vices purely civil…” In the end, the typicality if the true insignia and currency of the penal unlawfulness, being outside its scope the rest of illicit behaviors for which the sanction exists but is not penal. Only in this way is guaranteed the function of the penal law, as last resort and the principle of minimum intervention which inspires it.
Consequently this modality of swindle, appears -Spanish Supreme Court´s sentence number 1998/2001 of 29 October- when the author simulates a serious purpose of contracting when, in reality, only wants to take advantage of the fulfillment of the compromises assumed by the other party, hiding to this his already decided intention of not fulfilling his own contractual obligations, taking advantage the offender of the confidence and good will of the offended with clear and stout initial will of not fulfilling the agreed, being prostituted in this way the contractual schemes for using them at the service of an illicit purpose of own profit, unfolding actions which from the moment they are conceived and planed lack any idea of fulfilment of the obligations assumed with the reciprocal legal business, which gives place to the unlawfulness of the action and the damage to the legal good protected by the type (Spanish Supreme Court´s sentences of 12 May 1998 of 2 March and 2 November 2000, among others). Otherwise, like the Spanish Supreme Court´s sentence number 628/2005 of 13 May says: “Therefore, in order to concur the criminal figure, it is necessary this interactive relation created with the simulation of circumstances that do not exist or the disguising of the ones which in reality exist, as a means for moving the will of whom is the owner of the goods or rights or can dispose of them in terms which would have not taken place if the real nature of the operation had been known.
…
Thus, this cassation appealing Chamber has declared for these purposes that if the malice of the author has arisen after the lack of fulfilment, we would be, in any case before a “subsequent malice” which, like is known, can never support the typicality of the crime of swindle. In fact, the the malice of the swindle should temporally coincide with the action of deception, for it is the only way in which is possible to affirm that the author has had knowledge of the objective circumstances of the crime. Only if he was able to know that he asserted something as true, which in reality it was not, or he hid something true it would be possible to affirm that he acted with maliciously. On the contrary, the subsequent knowledge of the circumstances of the action, when it has been already provoked, without malice of the author, the error and the patrimonial disposition of the alleged offended, cannot sustain the malicious character of the deception, with the exception of the cases of improper omission. It is undoubtable, therefore, that the malice should precede in any case the rest elements of the type of swindle (Spanish Supreme Court´s sentence of 8 May 1996). Adding the jurisprudence that if certainly the deception is the essence of the infringement, essential element of the crime of swindle, the appearance, the simulation of a purpose which does not exist and the will of contractual fulfilling in a reciprocal obligation supposes the enough deception por producing the error in the other contracting party. In the penal illicit of the swindle, the active subject knows from the moment of the agreement that he will not want or will not be able to fulfill his obligations -Sentence of 1045 of 13 May-. Thus the criminalization of the civil and mercantile business, takes place when the defrauding purpose takes place before or at the moment of contracting and is capable of moving the will of the other party, unlike the subsequent malice of the mere lack of contractual fulfilment (sentences of 16 August 1991, 24 March 1992, 5 March 1993 and 16 July 1996).”
To which we can add the said by the Spanish Provincial Court of Madrid´s sentence number 2080/2023: “It is even possible, when the contract of successive performance, that despite existing initially this good faith and will of fulfilling, subsequently and during the performance of the contract the debtor changes these will and good faith and employs a supervening deception (obviously with penal malice), for obtaining from the other party his fulfilment of the successive obligations (delivery of money), knowing that he will not be able to fulfill his own obligations, causing a prejudice penally reproachable to the other contracting party and obtaining an illicit benefit from all this. The above serves as fundamental rule for marking the line of separation between the patrimonial civil offense and the penal offense. Thus, when takes place a grave injury of the right of credit or any other with patrimonial relevance for lack of guilty or mendacious fulfilment of the obliged to fulfill his obligations or, even, in it can be individualized the presence of deceptive elements, it it is not accredited at the same time that the patrimonial disposition was a direct and exclusive consequence of the previous deception, the injury to the obligation becomes a simple outcome of the legal relation agreed, with exclusive civil transcendence.”
Summing up, we can say that the elements of the generic or proper crime of swindle of the article 248 according to the Spanish Provincial Court´s sentence number 9287/2023 are: “Are shaped jurisprudentially, already being pacific jurisprudence, the elements which structure the crime of swindle under the following guidelines:
1) The use of a previous enough deception by the author of the crime for generating a risk not allowed to the legal good (first judgement of objective imputation); this sufficiency, suitability or adequation of the deception has to be established according to a mixed criterion objective-subjective, in which has to be pondered both the level of shrewdness or intellect of the average citizen and the specific circumstances which individualize the capacity of the passive subject in the concrete case. Originating or producing an essential error in the passive subject, who does not know or has a deformed or inaccurate knowledge of the reality, as consequence of the trickery, mendacity, fantasy or deception of the agent, what makes him act under a false presumption, to emit a manifestation of will departing from a motive tainted, in whose virtue is carried out the asset transfer.
Regarding the previous deception, has to be the previous and motivating factor of the asset transfer by the passive subject of the action in prejudice of him or a third, asset transfer which would not have been produced if the real nature of the action had been known. Such deception has to unfold the error of the passive subject of the action, being the decisive element, which determines the act of disposition in benefit of the author of the fraud or a third (Spanish Supreme Court´s sentence of 16 March).
It is precise, therefore, to assess the objective suitability of the deceptive maneuver and to relate it in the concrete case with the mental structure of the victim and with the circumstances in which the fact is developed. The deception cannot be regarded “enough” when the person who has been deceived could have easily avoided the error fulfilling the obligations which his profession imposed upon him. When the subject of the patrimonial disposition has the possibility of solving his error in a way simple and normal in accordance with the mercantile custom, will not be possible to appreciate an enough deception in the sense of the type of the article 248 CP, for in these cases, having not adopted the measures of self-protection and diligence to which was obliged due to his profession or for his situation previous to the legal business, cannot be established with clarity if the asset transfer was exclusively due to the error generated by the deception or the negligence of whom, according to the circumstances of the case, should have done determined checking, in accordance with the normal rules of actuation for similar cases, and omitted to do it.
The deception has to unfold the error of the passive subject of the action (a preceding or concurrent deception, backbone, kernel, soul and substance of the swindle, fruit of the deceptive scheme of those who try to take advantage of the alien patrimony).
2) There has to be also an act of patrimonial disposition of the passive subject, due precisely to such error, in benefit of the author of the fraud or a third. Act of patrimonial disposition, with the resulting prejudice for the passive subject, in other words, that the injury in the legal good protected (patrimonial damage) will be the product of a direct action of the own affected, consequence of the error experienced and, in the end, of the deception which unfolded the different stages of the type; acts of fundamental disposition in the typic structure of the swindle which connect the deceptive activity with the prejudice caused, and which has to be understood, generically, as any behavior of the person induced to error which directly entails the production of the patrimonial damage in himself or a third, not being necessary the concurrence in the same person of the condition of deceived and damaged.
3) The deceptive behavior has to be executed with malice and profit-making intention. Profit-making intention, as subjective element of the unjust, demanded today explicitly by the art. 248 CP, understood as purpose by the infringing party of obtaining a correlative patrimonial advantage, though not necessary equivalent, to the typical prejudice occasioned, eliminating, for, the imputation as imprudence. And
4) From it has to be derived a prejudice to the victim, prejudice which has to appear casually linked to the deceptive action (causal or naturalistic link) and being materialized in the same illicit risk which for the patrimony of the victim supposes the deceptive action of the active subject (relation of risk or second judgment of objective imputation). Act of patrimonial disposition, with the consequent and correlative prejudice for the disposer, in other words, that the injury to the legal good protected (patrimonial damage) will be a product of the direct action of the own affected, consequence of the error experienced and, in the end, of the deception which unfolded the different stages of the type; fundamental act of disposition in the typical structure of the swindle which links the deceptive activity and the prejudice caused, and which has to be understood generically, as any behavior of the person induced to error which directly entails the production of a patrimonial damage in himself or a third, not being necessary the concurrence in the same person the condition of deceived and damaged.
5) Causal link or relation of causality between the damaged provoked and the prejudice experienced, offering itself the latter as result of the former: the malice of the agent has to be previous or concurrent in the fraudulent dynamic, not being penally assessable the “subsequent malice”, subsequent to the agreement of the legal business; the characteristic malice of the swindle supposes the representation by the active subject, conscious of the deceptive scheme, of the consequences of his behavior, in other words, the induction which provokes the asset transfer as correlate of the error provoked and subsequent prejudice in the patrimony of the victim subject, supported by the corresponding realizing will”.
– Article 249:
In the article 249 are included other two cases of swindle which differ in their essential elements with respect to the crime of swindle of the article 248, for example, not demanding the enough deception, so important in the generic swindle of the article 248, they are different altogether. Besides, three more kinds of behavior are punished. The article 249 says:
“Article 249:
1. Are also regarded as convicted for swindle and will be punished with the punishment of imprisonment from six months to three years:
a) Those who, with profit-making intention, unduly hindering or interfering in the working of a system of information or unduly introducing, altering, erasing, transferring or suppressing computer data or making use of any other computer manipulation or similar scheme, achieve a transference which is not consent of any asset in prejudice of another.
b) Those who, fraudulently using credit or debit cards, traveling checks or any other means of material or immaterial payment different from the cash or the data included in any of them, carry out operations of any class in prejudice of its owner or a third.
2. With the same punishment envisaged in the above point will be punished:
a) Those who produce, import, obtain, posses, convey, sell or by any other means facilitate to thirds devices, tools or data or computer programs, or any other means specifically designed or adapted for the commission of the swindles envisaged in this article.
b) Those who, for its fraudulent use, illicitly steal or acquire credit or debit cards, travelling checks or any other tool of material or immaterial payment different from the cash.
3. Will be imposed the punishment in its inferior half to those who, for its fraudulent use and knowing that were illicitly obtained, posses, acquire, transfer, distribute or put at the disposition of thirds credit or debit cards, traveling checks or any other tool of material or immaterial payment different from the cash.”
We see how in the first point of the article 249, as classified other two behaviors as swindle, even when they do not fulfil the objective and subjective elements of the generic swindle of the article 248. Both have in common, the utilization of computer systems for provoking a patrimonial prejudice in a third, and being malicious behaviors, where besides the fraudulent purpose there has to exist too, profit-making intent. The Spanish Provincial Court of Albacete´s sentence says regarding them: “How it is referred in the Spanish Supreme Court´s sentence of 9 July 2013 “the point a) of the article 248.2 constitutes a kind of fraud:
1º It is not a swindle of the generic typified in the own article 248 in its point 1, it foregoes the deception and correlative error in a person and the subsequent act of patrimonial disposition. The procedure for attacking the alien patrimony is not a deceptive action unfolded by the author before another person to whom provokes an error making him to do an act of patrimonial disposition in his own prejudice or of a third.
2º The relevant is that the fraud should be carried out by a specific means which replaces the deception of a determined person: the computer manipulation or similar scheme.
3º The objective component of the type is constituted, besides, by the result which will consists in the obtention of a transference characterized by: a) not being consented by the persons with faculties for this; b) because its object has to be a patrimonial active, susceptible of being “transferred”, and c) to cause a prejudice to a different person than the author of the crime.
4º Besides the fact that the author should act knowing that these elements of the type concur and with the will of carrying out the transference, the unlawfulness is delimited by the concurrence of a subjective element of the type which is the profit-making intention”, and later it adds “If for part of the doctrine, not as much for the jurisprudence, the mere abusive use, which does not exclude the return, is of doubtful typicality as undue appropriation subspecies “embezzlement”, on the contrary, when the obtention of the assets is achieved through the patrimonial attack by means of a computer manipulation, the legislator does not demand that this asset should be object of definitive appropriation by the target of the transference. The typical result is satisfied from the moment of the transference, without being necessary a subsequent definitive appropriation. When the author of the crime had used in any measure what has been transferred, the consummation would have already taken place before. The special predatory power of the means utilized corresponds with this advancement of the consummative moment.” And it insists, on the consummation explaining later that:
“It is enough with remitting ourselves to the above exposed, according to which the fraud typified in the article 248.2.a) of the Penal Code is not consummated by the definitive appropriation of the transferred, but by the mere transference, when this is not carried out by a third as consequence of an error derived of the deception caused by the author, but by the utilization of a computer manipulation as means of patrimonial attack.”
On the other hand, in the second point of the article 249 is applied the same punishments that for the crime of swindle, to other two kind behaviors, but in this case, unlike what happens in the first point, without this meaning that those punished may be regarded as convicted by a crime of swindle, despite being the same punishments. These behaviors consist in general terms, in facilitating through any means the commission of the crimes envisaged in the first point. Regarding their subjective type, they are again malicious crimes, it is required that the author should know and want to carry out the elements of the objective type, but unlike the cases of swindle of the first point of the same article, and of the own article 248, in these cases it is not demanded the profit-making intention.
Finally, in relation with this article 249, in its third point we find a kind of attenuated subtype of the behavior described in the letter b) of the above point, for those who obtain a benefit from it. We are again before a malicious crime, which does not demand the concurrence of the profit-making intention of the swindles.
– Article 250:
In the first point of the article 250, we find regulated the aggravated subtypes of the crime of swindle, while in its second point we find only one super-aggravated subtype. Concretely, the article 250 says:
“Article 250.
1. The crime of swindle will be punished with the punishment of imprisonment from one to six years and fine from six to twelve months, when:
1º It is committed on things of first necessity, houses or other goods of recognized social utility.
2º It is committed abusing of the signature of another, or stealing, concealment or disabling, in part or completely, some process, file, registry or public or official document of any class.
3º It is committed upon goods which form part of the artistic, historic, cultural or scientific patrimony.
4º The swindle is especially grave, attending to the entity of the prejudice and the economic situation in which leaves the victim and its family.
5º The value of the fraud surpasses the 50.000 euros, or it affects to a high number of persons.
6º It is committed with abuse of the personal relationships existing between the victim and the defrauder, or this takes advantage of his professional or business credibility.
7º It is committed procedural swindle. Procedural swindle is committed by those who, in a judicial procedure of any class, manipulate the proofs in which they pretended to base their allegations or employ another analogous procedural fraud, provoking error in the judge or court and making him to issue a resolution in prejudice of the economic interests of the other party or a third.
8º At committing the crime the guilty has been executorily convicted at least for three crimes comprehended in this Chapter. Cancelled criminal records or those which should be cancelled will not be taken into account.
2. If the circumstances included in the numbers 4º, 5º, 6º or 7º concur along the included in the number 1º of the above point, will be imposed the punishment of imprisonment from four to eight years and of fine from twelve to twenty-four months. The same punishment will be imposed when the value of the fraud exceeds the 250.000 euros.”
Let us study the more common aggravated subtypes. One of them is the first, when swindle “is committed on things of first necessity, houses or other goods of recognized social utility.” The jurisprudence has determined that, for being applicable this aggravated subtype to the cases of houses, these should be regarded first or usual houses, what excludes holiday houses or simply second houses of sporadic or occasional use.
The Spanish Supreme Court´s resolution number 9692/2023 is a good example: “Finally, in relation with the aggravated subtype of the article 250.1.1ª, this Chamber in its sentences number 372/2006 of 31 March; 581/2009 of 2 June; 605/2014 of 1 October; 63/2015 of 18 February; 763/2016 of 13 October; 152/2018 of 2 April; 568/2018 of 21 November, has declared that it is a specific circumstance of aggravation (or aggravated subtype), it has been carried out a limited interpretation regarding its possible application, applying it not to any kind of house, but only to those which constitute the domicile, the first or only residence of the buyer and integrate, therefore, goods of first necessity or of recognized social utility, which are the other objects upon which has to be committed the crime of swindle for being applicable this art. 250.1.1º, but not those so-called of “second use” or acquired as “second house” as “investment” or entertainment (Spanish Supreme Court´s sentence number 1174/97 of 7 January, 658/98 of 19 June, 620/2009 of 4 June, 297/2005 of 7 March, 302/2006 of 10 March and 568/2008 of 22 September). In fact, it is clear that any class of house is not apt for deserving the special penal consideration given by this article 250.1.1º CP, which seeks to protect the consumers in those contracts which have as object the things of first necessity or other goods or recognized social utility, among which are included the houses, doubtless because the use of them satisfies a necessity as essential as to possess a space apt for developing our own personal and family intimacy (art. 18.1 CE). (Spanish Supreme Court´s sentence number 193/2021 of 3 march).”
Other which is broadly used, is the fifth aggravated subtype, when “The value of the fraud surpasses the 50.000 euros, or it affects to a high number of persons.” This scenario has to be mentioned, due to the possible affectation of the principle “non bis in idem”, which impedes to punish a person more than one time for the same facts, when the fraud has been also typified as a continuing crime by virtue of the art. 74.2 CP. This conflict was solved by the Agreement of the Non-Jurisdictional Full Court of the Second Chamber of the Supreme Court of 30 October 2007, which says: “The continuing crime is always punished with the superior half of the punishment. When they are patrimonial crimes, the basic punishment is not determined taking into account the graver infringement, but the total prejudice caused. The first rule of the art. 74.1 CP is not applicable when its application is contrary to the prohibition of doble assessment.”
If you still have doubts, like I have them, the Spanish Provincial Court of Madrid´s sentence number 9287/2023 tries to clarify to us the practical meaning of this agreement: “Thus, in relation with the compatibility of the aggravated subtype of the article 250.1.5º and the criminal continuity proceeds the application of the subtype of special gravity always that the totality of the different frauds exceeds the amount of 36.060,73 euros (currently 50.000 euros), being also applicable, given the criminal continuity, the article 74.2 CP, since it already demands the requisite that some of the amounts defrauded exceeds by its own such amount.”
Let us try again to understand the meaning of the aforementioned agreement, now with our own words. The criminal continuity of the article 74.2 will be applicable, since it is punished a crime of patrimonial character, when the total amount of the defraunded exceeds the 50.000 euros.
For the sake of clarity, here you can find the exact content of the article 74 CP:
“Article 74:
1. Notwithstanding the stated in the above article, who, in execution of a preconceived plan or taking advantage of identical occasion, makes a plurality of actions or omissions which offend one or various subjects and infringe the same criminal precept or precepts of the same or similar nature, will be punished as author of a continued crime or misdemeanor with the punishment envisaged for the gravest infringement, which will be imposed in its superior half, being able to achieve the inferior half of the superior punishment in degree.
2. If they are infringements against the patrimony, the punishment will be imposed taking into account the total prejudice caused. In these infringements the Judge or Court will impose, motivating it, the superior punishment in one or two degrees, in the extension they consider convenient, if the fact is especially grave and has damaged a plurality of persons.
3. The offences to eminently personal goods are exempted from the established above, except the infringements against the honor or sexual indemnity and freedom which affect to the same passive subject. In these cases, the nature of the fact and the infringed precept will be taken into account for applying or not the criminal continuity.”
Other usually found in the resolutions, is the sixth, when the fraud “is committed with abuse of the personal relationships existing between the victim and the fraudster, or this takes advantage of his professional or business credibility.”
This scenario can be divided into two: 1) Abuse of the personal relations between the victim and the defrauder, and; 2) Taking advantage of business or professional credibility.
Regarding the former, Spanish Supreme Court´s sentence number 9431/2023 says: “This chamber has pointed out that, the application of the exacerbated subtype for the abuse of the personal relationships of the number 6º of the article 250 is applicable in those cases in which besides breaching a generic confidence, it is committed the typical action from a situation of greater confidence or of greater credibility which characterizes determined previous relations and alien to the underlying relationship; in the end, an extra which makes of graver gravity the breaching of confidence implicit in the crimes of this type (Spanish Supreme Court´s sentences number 41/2015 of 27 January and 314/2020 of 15 June).”
Or like the Spanish Provincial Court of Pamplona´s sentence number 760/2023 sums it up: “In a few words: it is not the same to swindle a friend than to swindle a stranger, and this difference should be considered in the punitive law, like the legislator does aggravating these behaviors in the article 250.7º of the CP, under the concept of “abuse of personal relationships.”
In relation with the second, the Spanish Provincial Court of Madrid´s sentence number 2080/2023 says: “the second, abuse of business or professional credibility, the emphasis is not in the previous relation between the author and victim, but rather in the own qualities of the active subject whose consideration in the world of the professional business relations relationships would made explicable the reduction in the normal protections of any victim against a deceptive scheme. In the present case, the professional or business credibility of the accused was not taken into account for signing the contract, beyond the apparent solvency with the documents brought by the accused where was reflected the place the occupied in their own company, essential argument for appreciating the presence of the deception, kernel of the crime of swindle. However, it is not possible to consider the concurrence of the specific aggravating circumstance, for it has to be exclusively reserved to cases of a special situation of credibility or confidence, greater than the properly necessary for the efficacy of the fraudulent scheme and generally occasioned by relevant previous relations between the parties, which have contributed to the signing of the contract without being proven any special circumstance which indicates an abuse of confidence or taking advantage of credibility beyond the confidence and inherent good faith.”
Another aggravated subtype of swindle, which can be usually found in the resolutions of our courts, is the so-called procedural swindle of the seventh point: “Procedural swindle is committed by those who, in a judicial procedure of any class, manipulate the proofs in which they pretended to base their allegations or employ another analogous procedural fraud, provoking error in the judge or court and making him to issue a resolution in prejudice of the economic interests of the other party or a third.”
The Spanish Provincial Court of Madrid´s sentence number 2662/2023 says: “In the Spanish Supreme Court´s sentence number 853/08 of 9 December it considered that the figure of the procedural swindle, by its own typical structure, is not alien to certain controversy. It is required for its commission a patrimonial prejudice that the author creates through a deception which, in this case, is aimed to the Judge who has to take a decision in the exercise of its jurisdictional functions. However, the determination of its typical scope cannot be set criminalizing all concealment to the jurisdictional organ. This aggravated form of swindle, incriminated in the art. 240.2 of the CP, has not as object to punish all procedural party who breaches the duty of good faith imposed, with general character, by the art. 11 of the Organic Law of the Judicial Branch (LOPJ). The legislator did not want to include this crime among the crimes against the administration of justice. On the contrary, it confers it a systematic aggravated treatment within the ambit of the swindle. It limits has to be set, besides, departing from the key idea that, in a civil procedure, inspire by the principle of rogation, not all concealment of a fact which, having been put into the knowledge of the judge, would contribute to the fairness of the resolution, can be regarded as typical. Thus a partial version – and as such, interested of the facts-, an omission of legal or factual questions of importance for the jurisdictional treatment of the object of the process or, simply, an election of the procedure affected by the particular interest of who promotes it, do not integrate the typical action. On the other hand, the deception has to have the enough entity for surpassing the professionality of the judge and the guarantees of the procedure (Spanish Supreme Court 1445/05 of 5 December).
There is no deception when there is a discussion about the legal scope of determined facts, something which can never be regarded as criminal (Spanish Supreme Court´s sentence 431/06 of 9 March).
In the Spanish Supreme Court of 12 December of 2018 is considered that the deception has to be in any case suitable, what implies in the proper procedural swindle that it has the enough entity for overcoming the professionality of the Judge and the guarantees of the procedure (Sentence of 5 December 2005). In fact, it is an accepted opinion in the doctrine that the Judge can be a subject of deception since he solves a case according to the information brough by the parties, thereby the inaccuracy of the reality manifested to the judge may make him to commit a mistake in his decision. But according to the best doctrine are necessary two nuances: a) the professional qualification of the Judge heightens the parameter for assessing the suitability of the deception, hence the procedural swindle in the majority of the cases will be the consequence of a behavior of the subject which has the enough entity to counteract the function of control of the Judge. The question of whether a deception in these terms is enough requires an assessment in each case; b) That, if it was the Judge who commits a mistake in the interpretation of the law, the error only would be imputable to his own interpreting action because, it is known, that the article 1.7 of the Civil Code establishes the principle iura novit curia, according to which it is the competence of the Judge to find out the law applicable, leaving aside what was the behavior of the parties and the deceptive interpretations of law that they made before the Judge. (Spanish Supreme Court´s sentence of 25 March 2011).
– Article 251:
In the article 251 we find three cases which the doctrine has denominated improper swindle, for being cases that do not have the characteristic requisites of the proper or generic swindle of the article 248.
The article 251 states:
“Article 251.
Will be punished with the punishment of imprisonment from one to four years:
1º Who, falsely attributing to himself upon a movable or real property the faculty of disposition which he lacks, either for never having had it, or for already having exercised it, sells, imposes a burden or leases it, in prejudice of this or a third.
2º Who sells a movable or real property hiding the existence of any burden upon it, or who, having sold it as free, imposes a burden upon it or again sells it before the definitive transfer to the acquirer, in prejudice of this, or a third.
3º Who makes a simulated agreement in prejudice of other.”
Regarding this article we can mention two examples:
Spanish Provincial Court of Madrid´s sentence number 6045/2023: “Like the Spanish Supreme Court´s sentences number 403/2018 of 12 September; 567/2018 of 21 November, say, the article 251.1º CP punishes who falsely attributing to himself upon a movable or real property the faculty of disposition which he lacks, either for never having had it, or for already having exercised it, sells, imposes a burden or leases it, in prejudice of this or a third.
The objective type requires that the subject attributes to himself upon a thing faculties which he lacks and that he carries out in prejudice of a third some of the acts of disposition.
The subjective types, on the other hand, requires that the subject knows that effectively lacks the faculties which he attributes to himself and which are the reason of his possession upon the thing.
The Spanish Supreme Court´s sentence 577/2000 of April, regarding the article 531 CP 1973, preceding the current 251.1 CP, that such precept demands “that the active subject has to have achieved an asset transfer through an enough deception which, in this case, has to consist in the false attribution of the property of real property – remember that the current article 251 CP considers a possible object of the crime a movable property-, which is offered on sale to the passive subject, well understood that the damaged by the scheme can be a third, should be the passive subject of the deception who carries out the act of disposition, induced by the distortion of the truth which presented to him. The deception has to consist in the appearance by the passive subject of faculties of disposition which he lacks. And as in the generality of the swindles, the envisaged in the article 251.1º CP demands the act of patrimonial disposition, with the subsequent and correlative prejudice to the victim, is a direct consequence of the deception provoked on him. Thus, though the damaged can be a third, the deceived has to be who, trusting in the false faculty of disposition arrogated to the active subject, commits the act of disposition, in other words, pay the price.”
To which we can add the stated by the Spanish Provincial Court of Madrid 970/2023: “As has been declared by the Second Chamber, regarding the relation between the articles 250.1.1º and 251.1º of the Penal Code, “the solution in these cases should be to attend to the envisaged in the article 8.1 CP, understanding that the article 250.1.1 is of preferential application by virtue of the principle of specialty when the swindle has as object legal business referred to the houses, since the fraud typified in the article 251, has an ambit of application more general, either to real property, although they are not houses in restrictive sense of the article 250.1.1º or movable property, or in the article 8.4 CP, being solved the conflict of laws by the principle of alternativity which supposes that, when a behavior fits in various punishing norms, is applied the precept with the severest punishment, in this case the article 250.1.1” (Spanish Supreme Court´s sentence number 934/13 of 10 December).”
And the Spanish Provincial Court of Castellon de la Plana´s sentence number 1144/2022: “The modality of swindle regulated in the number third of the article 251 of the Penal Code, is a modality of special swindle and in certain degree, autonomous, denominated also “improper”, because it escapes the typical dogmatic shape of the proper or generic swindle actually envisaged in the article 248, what determines a special penal legislation, being a deception specifically typified, because in the current article 251.3 is punished a contract in prejudice of a third who alien to such fraudulent agreement is neither directly the receptor of the deception or contractual fiction, nor, therefore, carries out by virtue of such deception -or erroneously influenced- any act of asset transfer.
The Supreme Court has demanded, as constitutive elements of this criminal figure: “A) in the objective type, a) the carrying out of the typical action, positive, consisting in agreeing a simulated contract, in other words, it is pretended a contract which does not exist in reality, in the end, it is agreed a public or private document, and through it, it is expressed a legal business without real existence -absolute simulation- or concealing the true contract -relative simulation-; and b) besides, the result of the simulation has a prejudicial assessment of patrimonial character, according to the legal regulation which regulates the traffic of goods; result which consists in an economic assessable prejudice, according to the patrimonial nature which always have the figures of swindle, and which has to be occasioned to a third person, who has not intervened in the contract, obtaining a benefit, with such prejudice, the active subject of the action; in this criminal figure the deception does not produce a prejudice through an act of disposition bur rather with a simulated contract which is equal to a lack of contract, since it is not reflected a real business, existing a difference between the real will and the declared, without forgetting that the end of the norm is to protect the patrimonial interests of those alien to the deception, which consists in intentionally incorporating to the traffic a simulated contract with attitude for causing a prejudice to those who did not intervene in it and therefore who are alien to its existence altogether, being the passive subject of this crime the owner of the patrimonial right damaged; and b) Its objective type demands malice, in other words, the will of carrying out the objective elements of the type: the simulation and the patrimonial prejudice.”
– Article 251 bis:
The last article of this Section I, is the article 251 bis, which extends the application of the crime of swindle, as well as the rest of varieties contemplated in this Section to the legal entities, for like the article 31 bis says, the legal entities will be only responsible of the crimes which expressly envisaged it.
The article 251 bis says:
“Article 251 bis.
When according to the established in the article 31 bis a legal entity is liable of the crimes comprehended in this Section, will be imposed to it the following punishments:
a) Fine from the triple to the quintuple of the amount defrauded, if the crime committed by the physic person has envisaged a punishment of imprisonment of more than five years.
b) Fine from the doble to the quadruple of the amount defrauded, in the rest of the cases.
Attended the rules established in the article 66 bis, the judges and courts may impose likewise the punishments gathered in the letters b) and g) of the seventh point of the article 33.”
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com