Crimes of fraud and illegal exactions: Definition and Regulation in the Spanish Penal Code

The crimes of fraud and illegal exactions are two criminal figures that fall within the scope of crimes against the Public Administration, as established in the Spanish Penal Code.

These fraudulent actions are carried out by authorities or public officials in the exercise of their duties and result in harm to the proper functioning of the Administration and, in many cases, to citizens.

What is a levy?

The term extortion refers to the demand for a payment or service, which can be legal or illegal depending on the context and the authority imposing it. In the context of crimes, illegal extortion is the demand for a payment or fee that is not duly authorized by law or that exceeds the legally established amount. This type of extortion is considered an abuse of power, generally committed by a public official who uses their position to demand something improper.

For example, if a public official requests an additional fee not stipulated by current regulations to expedite an administrative procedure, they would be committing an illegal exaction. This offense is punishable by a fine of 6 to 24 months and suspension from employment or public office for a period of 6 months to 4 years, according to Article 437 of the Spanish Penal Code.

What is fraud?

Fraud is an intentional act of deception carried out to obtain a personal benefit or cause harm to another person or entity. It is characterized by the manipulation or distortion of the truth in order to mislead someone, resulting in economic, social, or reputational loss for the victim.

There are different types of fraud, such as financial fraud , which involves the falsification of documents or the manipulation of data to obtain money illegally, or tax fraud , which consists of hiding or falsifying information to evade taxes.

In the context of public administration, fraud is committed when an authority or official improperly manipulates public accounts or contracts to obtain an undue benefit, even if a direct benefit to the perpetrator or clear harm to the administration is not required.

Regulation of fraud and illegal exactions in the Penal Code

Fraud and illegal exactions constitute two types of crimes that focus on protecting the assets of the public administration and citizens, as well as the dignity and prestige of the public service. These crimes are regulated in Articles 436, 437, and 438 of the Spanish Penal Code, within Chapter VIII of Title XIX, which deals with crimes against the public administration.

The legal interest protected in these cases is the proper functioning of the public administration, its internal organization, and its relationship with citizens. Furthermore, the Supreme Court points out that the dignity of the public service, its prestige, and the duties of loyalty and fidelity of public officials are also protected.

Crime of fraud against the public administration

The crime of fraud against the public administration is committed when an authority or public official defrauds a public entity through agreements with interested parties or through some artifice, generally in the context of public procurement or the liquidation of public effects or assets.

This crime involves a fraudulent alteration of accounts so that the Administration pays more than it should, without it being necessary that there be a direct benefit for the perpetrator or harm to the victim, although there must be intent, that is, the intention to commit the illegal act.

This offense is considered a special crime , as it can only be committed by public officials or authorities. The penalties established for this offense include imprisonment for two to six years and special disqualification from holding public office or employment and from exercising the right to stand for election for six to ten years. Furthermore, private individuals who cooperate with the official may also be punished with the same penalties, including disqualification from obtaining subsidies, contracting with the public sector, and receiving tax or social security benefits for a period of two to seven years.

Crime of illegal exactions

The crime of illegal exactions refers to the act of demanding payments that are not owed or that exceed what is legally established, taking advantage of one’s authority. In this case, the verb “to demand” implies an abuse of power. The crime can be committed in two ways: through deception or coercion, but in both cases, the public official must act with intent, although the intent to profit is not necessary.

This offense is punishable by a fine of 6 to 24 months and suspension from employment or public office for a period of 6 months to 4 years, as stipulated in Article 437 of the Penal Code. If a private individual offers a bribe in this context, it is considered the crime of bribery.

Crime of fraud and defrauding of social security benefits

The crime of fraud and defrauding of social security benefits is committed when a public official or authority uses their position to mislead a third party, causing harm to the public administration or another person. This crime requires the use of sufficient deception and an act of disposition by the victim, and is aimed at obtaining undue benefits from the social security system.

The penalties for this crime can vary depending on the severity and specific circumstances of the case, but they usually include imprisonment and disqualification from employment or public office, as well as from exercising the right to passive suffrage for periods of 3 to 9 years.

At Nieto Enríquez Criminal Lawyers, a criminal law firm in Barcelona , ​​we analyze the legal scope of fraud and illegal exactions and their implications within crimes against the Public Administration. If you have questions about how these types of actions may affect you or need criminal law advice, please do not hesitate to contact us.