“Of the frauds of electric fluid and analogous”, is the title of the Section III, of the Chapter VI, about the frauds, of the Title XIII, dedicated to the crimes against the patrimony and the socioeconomic order, of the Book II of the Spanish Penal Code (CP).
Being a fraud, we are before other crime which consists in depriving someone of what corresponds to him by right. In the case of the frauds of electric fluid and analogous, the typical behavior will normally consist in obtaining electric energy without paying for it or for a lower price than the offered by the market, this is achieved by means of a technical trick which deceives the measuring equipment of the own supplying companies.
The Section III is formed by two articles. An article 255, where we can find the generic fraud of electric, gaseous fluids, or other elements, and an article 256 where what is punished, is the use of any kind of telecommunication terminal equipment, without the consent of its owner and causing an economic prejudice to him. Let us study both articles.
– Article 255 CP:
Of the two articles which form the Section III, we can say without being afraid of being mistaken that the behavior described in the article 255 is the more usual in the practice of the courts, for normally what is tried is the fraud of water or electric fluid.
The article 255 says:
“Article 255:
1. Will be punished with the punishment of fine from three to twelve months who commits a fraud using electric energy, gas, water, telecommunications or other alien element, energy or fluid, by any of the following means:
1º Making use of mechanisms placed for carrying out the fraud.
2º Maliciously altering the indications or measuring equipment.
3º Making use of any other clandestine equipment.
2. If the amount of the defrauded does not exceed the 400 euros will be imposed a punishment of fine from one to three months.”
Let us start with the objective type. The typical behavior consists in, defrauding electric energy, gas, telecommunications or other alien element, energy or fluid, through: 1º Mechanisms places to carry out the fraud; 2ª The malicious altering of the indications or measuring equipment, or; 3º Any other clandestine means.
Then, we are before a fraud that is not committed by the direct apprehension of the thing, but by means of employing some technical device in order to obtain an element, energy, fluid without any cost.
We are able to see too, that the enumeration made by the article 255 of these elements, energy or fluids is open, thereby the typical behavior will be fulfilled regardless of their nature, always that they are alien, causing a prejudice to its owner, and this behavior is carried out by any of the three means enumerated. Regarding the legal good, being a patrimonial crime, it will be the patrimony of the supplying companies.
In relation with the above the Spanish Provincial Court of Burgos´s sentence number 407/2023 says: “Therefore, the precept has a strict patrimonial nature, protecting the economic interests of the supplying companies of electricity, gas, water or other elements, energy or fluids, and consisting the typical action in the illicit taking of possession or fraud by means of the deception unfolded through the use of instrumental mechanisms or manipulations, with which is caused an economic prejudice to the supplier by the lucrative use of the user of the alien fluid.
As the Provincial Court of Barcelona´s sentence number 11430/2021 of 6 November 2021 points out, in a case of fraud of electricity the Court quoting the Sentence of the Second Chamber number 880 of 20 June 1981, exposes that the legal good protected is the economic patrimony of the supplying company; that this is a crime of fraud or deception of patrimonial nature, in which the patrimonial benefit is not obtained through the material direct taking of possession or apprehension, but with the employment of devices or proceedings suitable to manipulate the measuring equipment for paying less of what is due; and that, as crime of result, it demands that the active subject should take possession of the electric fluid causing a prejudice to the supplying company.”
Let us see other characteristics underlined by the jurisprudence:
– “It is a crime of permanent execution since it is committed along a period of time more or less long.” (Spanish Provincial Court of Burgos´s sentence number 407/2023).
– “Considering such crime as of result being this the production of a prejudice to the passive subject, being consummated from the moment in which is used the alien element, energy or fluid with a method which impedes to count or charge the amount of the service used.” (Spanish Provincial Court of Murcia´s sentence number 795/2023).
– “It is not a crime of own hand, in which the link between this and the execution of the material action which fills the legal precept is indivisible. It is punished not only who places or manipulates the measuring equipment, but also who benefits himself from the defrauding devices placed for committing the fraud.” (Spanish Provincial Court of Murcia´s sentence number 795/2023).
– “It is a malicious crime since, though the type is not referred to the profit-making intention, the purpose of the author is to pay less for the electric energy”. (Spanish Provincial Court of Burgos´s sentence number 407/2023).
Let us now center ourselves in the last two points which we have just seen, for through them we have leaped from the objective to the subjective type. Therefore, as we already know, it is a malicious crime, in which the active subject should know that he is obtaining a benefit from a supply that he is not paying, or paying less of what is due, without being necessary that active subject (the person benefiting from the fraud) and person who placed the deceptive device on the measuring equipment should be the same. Like the Provincial Court of Girona´s sentence number 1322/2023: “Therefore, for the typicity of the facts is necessary to affirm that the person reported manipulated the measuring equipment of energy, or that he knew that it was being done by another and he was taking advantage of this defrauding system.”
Or the Spanish Provincial Court of Girona´s sentence number 1360/2023: “Hence, “is not only committing the crime who personally manipulates the system of entrance into a home of the electric fluid, but also who knows that the system is manipulated and is taking advantage of the supply without paying anything for it. It is not only the manipulator but the consumer who knows that the line has been altered by another and benefits himself from this irregularity” (Spanish Provincial Court of Girona´s sentences of 26 June 2019 and 25 June 2019).”
With regard to the assessment of the prejudice caused to the passive subject, due to the difficulties that exists to determine it with accuracy, in the practice the Spanish Courts have made use of the stated by the article 87 of the Royal Decree 1955/2000 of 1 December, “If there is no objective criterion for charging these cases, the supplying company will charge an amount corresponding to the product of the power contracted, or which should have been contracted, for six hours of diary use during a year, without prejudice of the criminal or civil actions which may be started. Therefore, lacking another objective criterion, as an Expert´s report brough by the accused, the prejudice caused will be the “product of the power contracted, or which should have been contracted, for six hours of diary use during a year.”
This is a good example of the above, Spanish Provincial Court of Girona´s sentence number 1322/2023: “This Chamber understands that the application of the procedure regulated in the article 87 of the Royal Decree 1955/2000 of 1 December is adequate since it appears envisaged for this kind of cases (in this sense, the Provincial Court of Madrid´s sentence of 5 June 2015), hence the amount obtained, which results from the corresponding operations depending on power and diary estimated consumption during this period of time, should be ratified above all since such economic assessment is not refuted by another, discussing the party only the amount fixed.
As is pointed out by the Provincial Court of Salamanca, Section I, in its sentence of 21 June 2019, “Such criterion is the imposed by the law in the absence of the possibility of an objective assessment of the energy consumed. Objective assessment of the energy consumed which should be proven by the accused, who, has not proven it. For cannot be regarded as proof his allegations about when should be considered that the deception started and the amount of the diary consumption. Otherwise, we can fall in the absurd that calculation of the amount defrauded is provided by the own defrauder, without any other proof. In other words, we would reach the absurd that, once accredited the fraud, far from punishing the defrauder with deterrent ends, he would be granted the benefit of the proof, what is the same that saying that the law does not punish, but rewards those who infringe it.”
– Article 256:
The article 256 says:
“Article 256:
1. Who makes use of any telecommunication terminal equipment, without consent of its owner, and causing to this an economic prejudice, will be punished with the punishment of fine from three to twelve months.
2. If the amount of the prejudice caused does not exceed the 400 euros, will be imposed the punishment of fine from one to three months.”
In this case, the typical behavior consists in making use of any telecommunication terminal equipment, without consent of its owner, causing a prejudice to this.
We can repeat the aforementioned, it is a crime of permanent execution, result and malicious. Though I have my doubts, about whether it can be regarded a crime of own hand or not, for the lack of examples.
According to the abolished Royal Decree 1890/2000 of 20 November, “Telecommunication terminal equipment: is that product, or a part of it, which allows the communication and which is destined to be directly or indirectly connected, by any means, to interfaces of network of the public networks of telecommunications.”
According to the above definition, it can be a telephone, a tablet or a computer.
Then an example an example of the typical behavior of the article 256, may be to catch a telephone without the consent of its owner to make a phone call.
Víctor López Camacho.
Twitter: @victorsuperlope.
More on my website: www.victorlopezcamacho.com