Fraud Offence in Spain: Elements, Defence and Criminal Consequences

A complaint concerning an undelivered bank transfer, a failed real estate transaction or an online sale in which the buyer never received the product may lead to criminal proceedings. The offence of fraud is one of the criminal offences most frequently dealt with by investigating courts in Spain, and also one of those with the greatest legal nuances. Understanding its legal elements and the real defence options available is essential for anyone under investigation in this type of proceeding.

What is the offence of fraud and what are its legal elements?

The offence of fraud is regulated in Article 248 of the Spanish Criminal Code. This provision defines as guilty of fraud anyone who, with intent to obtain financial gain, uses sufficient deception to cause another person to make an error, thereby inducing that person to carry out an act of disposal to their own detriment or to the detriment of a third party.

Therefore, fraud requires five cumulative elements: deception, error, an act of disposal of assets, financial loss and intent to profit. The absence of any one of these elements prevents the criminal offence from being completed. It should be noted that the deception must be sufficient, meaning capable of overcoming the level of caution reasonably expected from an average person.

In addition, case law distinguishes between basic fraud and aggravated forms of fraud. Article 250 of the Spanish Criminal Code sets out the aggravated cases: an amount exceeding EUR 50,000, abuse of personal relationships, particular seriousness due to the value of the fraud, or fraud affecting essential goods.

Consequently, the correct legal classification of the facts determines the entire sentence. Unlike a civil breach of contract, the offence of fraud requires proof of prior fraudulent intent: the intention to defraud must exist from the outset of the transaction. Without that subjective element, the matter should be dealt with in the civil courts, not in criminal proceedings.

Practical forms and common cases before the courts

In court practice, the forms of fraud that reach the courts are numerous and varied. The first is classic contractual fraud: a buyer pays the price and the seller fails to deliver the item, or a borrower obtains funds without any genuine intention of repaying them. In these cases, the line between a criminal offence and a mere civil breach of contract is decisive.

In addition, computer-related fraud under Article 248.2 of the Spanish Criminal Code has increased significantly. Examples include bank phishing, digital identity theft, manipulation of bank transfers through intercepted emails or fake sales on online platforms. In these cases, digital evidence and the traceability of the financial flow determine the procedural strategy.

Another common scenario is real estate fraud. This includes the sale of properties with hidden charges, double sale of the same asset or non-existent property developments. In these cases, the defence must analyse the contracts, the land registry records and the documentary traceability of each step taken.

The most frequent case: fraud with apparent civil intent

The most disputed boundary at trial is the line separating the offence of fraud from a simple contractual breach. Therefore, the defence may argue that there was an initially lawful transaction that became impossible due to subsequent circumstances. Without proven prior fraudulent intent, the criminal offence is not completed.

It should be noted that subsequent insolvency does not amount to prior deception. In these cases, economic expert evidence and documentary analysis are decisive in supporting the argument that the conduct is not criminally relevant.

Defence lines and the role of a criminal defence lawyer

The technical defence against an accusation of fraud operates on several fronts at the same time. The first is denying the existence of sufficient deception. If the alleged victim had enough information or failed to observe the caution reasonably expected in the circumstances, the suitability of the deception is weakened. Therefore, the criminal defence lawyer analyses the contractual context, the prior relationship between the parties and the diligence of the alleged victim.

Accordingly, the second front is to challenge the existence of prior fraudulent intent. The defence may prove that the person under investigation had both the capacity and the willingness to perform the contract at the time it was entered into. In addition, documentary evidence may be provided showing steps taken, partial payments or serious attempts at subsequent performance.

At Fechenbach Abogados, we regularly handle this type of proceeding. David Fechenbach Marcos, criminal defence lawyer registered with the Madrid Bar Association, ICAM No. 122770, conducts fraud cases from the investigation stage through to trial. Each case requires an individualised study of the contractual documentation, financial flows and the actual chronology of events.

However, trial is not always the best option. In these cases, the criminal defence lawyer may assess the possibility of a negotiated plea agreement with compensation for the damage caused, which activates the mitigating circumstance under Article 21.5 of the Spanish Criminal Code and may significantly reduce the sentence. The strategy depends on the technical analysis of the case file.

Consequences of not having specialised defence from the outset

Facing a fraud allegation without technical legal assistance has significant procedural consequences. The first statement as a person under investigation may affect the rest of the proceedings. Therefore, it is advisable to exercise the right to remain silent under Article 24.2 of the Spanish Constitution until legal advice has been obtained.

In addition, procedural deadlines run from the beginning of the investigation stage. The defence brief requires precise legal classification, the organisation of documentary evidence and the proposal of economic expert evidence. However, filing the defence brief without a rigorous technical analysis compromises the real prospects of acquittal.

Consequently, a conviction for fraud creates a criminal record registered in the Central Register of Convicted Persons. It should be noted that such criminal records may affect future administrative authorisations, employment selection processes, public examinations or immigration proceedings. For this reason, specialised intervention from the first procedural step is decisive.

Contact Fechenbach Abogados

If you are under investigation or have been reported for a fraud offence, Fechenbach Abogados can analyse your case with technical rigour.

We have offices in Madrid, Ibiza and Cádiz. Contact us without obligation and we will assess the most appropriate procedural strategy for your situation.