The crime of swindling is regulated in articles 248 to 251 bis of the Criminal Code. The criminal conduct of the basic modality consists of using deception enough to produce error in another, inducing him to carry out an act of disposition to the detriment of himself or others, acting for profit. The penalty associated with this crime is imprisonment from 6 months to 3 years, but if the amount defrauded does not exceed 400 euros, the facts are punished with a fine of 1 to 3 months (art. 249 of the Criminal Code).

What elements characterize the crime of swindling? According to the jurisprudence of the Supreme Court, collected, among many others, in STS no. no. 900/2014 of December 26, they are the following:

• The use of sufficient prior deception by the perpetrator of the crime to generate an impermissible risk to the legal property. In order to assess the sufficiency of the deception, both the level of perspicacity of the average citizen and the circumstances and capacity of the victim in the specific case must be taken into account.
• The deception must produce the victim’ s error.
• There must also be an act of disposal of assets by the victim, due precisely to the error, for the benefit of the perpetrator of the fraud or a third party.
• The deceitful conduct must be executed with malice aforethought and profit motive.
• It must result in a harm to the victim. It is possible that the victim of the crime (the person who suffers the financial loss) is not the same person who carries out the act of financial disposition (the disposer). When the victim and the disposer are different persons, we are dealing with a triangular fraud.

Specific modalities

In the first place, apart from the basic modality of the crime of swindling, art. 248.2 of the Penal Code typifies a series of specific modalities of this crime, punishable with the penalty previously indicated:

1. Computer fraud: punishes individuals who, for profit and using some computer manipulation, obtain a non-consensual transfer of assets to the detriment of another.
2. Fraud by means of credit, debit or traveler’s check card: penalizes persons who, using credit or debit cards or traveler’s checks, or the data indicated therein, carry out transactions to the detriment of the cardholder or a third party. Included within this modality are the cases of use of other people’s cards in commercial establishments or the use of the data contained in another person’s credit card to make a purchase through the Internet.
3. Manufacture, possession or facilitation of programs intended for the commission of frauds.

Secondly, through Article 251 of the Penal Code, the following behaviors are punishable with a prison sentence of 1 to 4 years:

1. A person who, falsely attributing to himself the power of disposition over a movable or immovable thing (either because he has never had it, or because he has already exercised it), sells, encumbers or leases it to another person, to the detriment of the latter or of a third party.
2. A person who disposes of a movable or immovable thing concealing the existence of any encumbrance, or who, having sold it as free, encumbers or sells it again before the definitive transfer to the acquirer (cases of double sale), to the detriment of the latter or of a third party.
3. The granting of a simulated contract to the detriment of another.

Finally, art. 282 bis of the Penal Code criminalizes credit and investment fraud, which punishes the administrators of a company issuing securities traded on the stock markets who falsify economic and financial information in order to attract investors, place financial products or obtain financing. These acts are punishable by a prison sentence of 1 to 4 years.

In the event that the investment, the deposit, the placement of the asset or the financing is obtained, to the detriment of the investor, depositor, acquirer of the financial assets or creditor, the penalty shall be imposed in the upper half. If the damage caused was of notorious seriousness, the penalty to be imposed shall be one to six years of imprisonment and a fine of six to twelve months.

Aggravated modalities

Art. 250 of the Penal Code punishes with a higher penalty (imprisonment of 1 to 6 years and a fine of 6 to 12 months) those swindles in which any of the following elements concur:

1. If it is applied to basic necessities, housing or other goods of recognized social utility.
2. When it is committed by abusing the signature of another, or by concealing or rendering useless any process, file or public or official document.
3. If it is applied to property that is part of the artistic, historical, cultural or scientific heritage.
4. If the facts are particularly serious, taking into account the nature of the damage and the economic situation in which the victim is left.
5. When the value of the fraud exceeds 50,000 euros or affects many people.
6. If it is committed by abusing the personal relationship between the victim and the perpetrator or the latter takes advantage of his business credibility.
7. Procedural fraud, which occurs when, within a judicial proceeding, evidence is manipulated or some other procedural fraud is used, causing error in the judge, leading him to issue a decision detrimental to the economic interests of the other party or a third party.
8. If the perpetrator has been convicted of at least 3 fraud offenses at the time of the offense.

Criminal liability of legal persons

The crime of fraud is one of the crimes for which legal entities may be criminally liable, in accordance with the provisions of art. 251 bis of the Criminal Code. The penalty to be imposed on the legal person is a fine of three to five times the amount defrauded (if the offense is punishable by a prison sentence of more than 5 years) or a fine of two to four times the amount defrauded (in all other cases). Likewise, the Judge may impose the penalties of dissolution, suspension of activities, closure of premises, prohibition to carry out activities in the future, special disqualification to obtain subsidies and public aid and judicial intervention.