Fraud and illegal exactions: Definition and Regulation in the Spanish Penal Code.

The crimes of fraud and illegal exactions are two criminal offenses that fall within the scope of crimes against the Public Administration, as established in the Spanish Criminal Code. These fraudulent conducts are carried out by authorities or public officials in the exercise of their office and have as a consequence a detriment to the proper functioning of the Administration and, in many cases, to the citizens.

What is a levy?

The term levy refers to the demand for a payment or benefit, which may be legal or illegal depending on the context and the authority imposing it. In the context of crime, an illegal levy 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 levy is considered an abuse of power, usually committed by a public official who uses his or her position to demand something improper.

For example, if an official requests an additional fee not provided for by the regulations in force to expedite an administrative procedure, he would be committing an illegal levy. This offense is punishable by a fine of 6 to 24 months and suspension from public employment or 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 performed 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 else, resulting in economic, social or reputational loss to the victim.

There are different types of fraud, such as financial fraud, which involves falsifying documents or manipulating data to obtain money illegally, or tax fraud, which involves concealing 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 advantage, even if no direct benefit to the perpetrator or clear prejudice to the administration is required.

Regulation of frauds 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 function. These crimes are regulated in Articles 436, 437 and 438 of the Spanish Criminal Code, within Chapter VIII of Title XIX, which deals with crimes against the Public Administration.

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

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 the accounts so that the Administration pays more than what is due, without the need for there to be a direct benefit for the perpetrator or harm to the victim, although there must be intent, i.e., intention to commit the unlawful act.

This offense is considered a special offense of its own, since it can only be committed by public authorities or officials. The penalties established for this crime include imprisonment from 2 to 6 years and special disqualification for public employment or office and for the exercise of the right to passive suffrage from 6 to 10 years. In addition, 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 2 to 7 years.

Crime of illegal exactions

The crime of illegal exactions refers to the action of demanding payments that are not due or that exceed what is legally established, taking advantage of the authority possessed. In this case, the verb “to demand” implies an abuse of authority. The crime can be committed in two ways: by deception or coercion, but in both cases it is required that the public official acts with malice, although a profit motive is not necessary.

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

Fraud and benefit fraud of the Social Security System

The crime of swindling and benefit fraud of the Social Security system is committed when an authority or public official uses his position to mislead a third party, causing damage to the public administration or another person. This crime requires the use of sufficient deception and an act of disposition on the part of the victim, and is aimed at obtaining undue benefits from the Social Security system.

The penalties for this offense may vary depending on the gravity and specific circumstances of the case, but usually include imprisonment and disqualification from public employment or office, as well as from the exercise of the right to passive suffrage for periods of 3 to 9 years.