Fraud lawyer in Alicante

What fraud is

Article 248 of the Criminal Code defines fraud (estafa) as the use of sufficient deception (engaño bastante), for financial gain, to lead another person into error and cause them to carry out an act of disposal to their own or another’s detriment. There are four elements and all of them must be present: deception, error, an act of disposal (paying, transferring, signing, handing something over) and loss.

Not every breach of contract is fraud. If someone signs a contract intending to honour it and is later unable to pay, this is normally a civil matter, not a criminal one. The key is whether the deception existed from the outset and whether it was enough to deceive an ordinary person in those circumstances. Much of our work consists precisely in showing which side of that line your case falls on.

Online and computer fraud

Article 249 punishes several very common forms of conduct with the same penalty as basic fraud, six months to three years in prison:

• Obtaining an unauthorised transfer through computer manipulation: phishing, smishing, spoofing the bank’s website or telephone number.
• Fraudulently using credit or debit cards, or their details, or other non-cash means of payment.
• Producing, possessing or supplying software or data designed to commit these frauds.
• Unlawfully obtaining cards or means of payment in order to use them fraudulently.

A case we often see is that of people who lend their bank account to receive and forward money, sometimes after a supposed job offer. They can end up under investigation for fraud or money laundering, even in its negligent form (article 301.3). If this is your situation, the statement should be prepared calmly; we explain this on our page on cybercrime.

Property fraud and double sales

On the Costa Blanca, with a very active property market and many foreign buyers, property fraud is common. Article 251 punishes with one to four years in prison:

• Anyone who sells, encumbers or lets a property claiming a power of disposal they do not have, because they never had it or because they had already exercised it.
• Anyone who sells a property concealing a charge (a mortgage, an attachment) or who, having sold it as unencumbered, encumbers it or sells it again before the final transfer to the first buyer: the well-known double sale.
• Anyone who enters into a sham contract to the detriment of another.

In addition, article 250.1.1 makes fraud an aggravated offence when it involves homes, and other aggravating factors (more than €50,000, abuse of professional credibility) often arise in transactions involving deposits (arras), reservations or fake holiday lets. If you have been defrauded in a property purchase, act quickly: money moves fast.

Penalties for fraud

To set the sentence, the judge considers the amount defrauded, the financial loss to the victim, the relationship between the two and the means used. If a company is criminally liable, article 251 bis provides for fines proportionate to the amount defrauded. Where the penalty provided exceeds five years in prison, the trial is heard by the Provincial Court (Audiencia Provincial); in other cases, by the Criminal Section of the Court of First Instance (Sección de lo Penal del Tribunal de Instancia, formerly the criminal court).

How we defend you

1. We study the summons and the complaint before you make a statement. If you have not yet been summoned, we prepare the strategy in good time. We explain how it works under being summoned as a suspect.
2. We analyse whether there was prior and sufficient deception or whether it is a civil breach. This distinction decides many cases.
3. We review the digital and banking evidence: account ownership, IP addresses, traceability of transfers, messages.
4. We consider reparation of the harm, which is a mitigating factor if made before trial (article 21.5), and a possible plea agreement if it is in your interest.
5. If the judgment is unfavourable, we prepare the appeal.

Criminal records and suspended sentences

A conviction for fraud creates a criminal record. If the prison sentence does not exceed two years, it is your first offence and you satisfy the civil liability (or undertake to do so in line with your financial means), the judge can suspend the sentence and you would not go to prison (article 80). That is why returning the money, even in part, is so important in these cases. Once the time limits have passed, you can apply to have your criminal record removed.

Basic fraud becomes time-barred after five years; aggravated fraud under article 250.1, after ten (article 131).

If you are the victim of fraud

The first thing is to act quickly and not delete anything:

• Notify your bank immediately and ask for your cards to be blocked and the transactions reversed.
• Keep screenshots, emails, contracts, proof of payment and telephone numbers.
• File a police report or, better, a private criminal complaint (querella), so that you can request measures over the recipient accounts.

As a private prosecutor we can request investigative measures, the seizure of the perpetrator’s assets and the return of what was taken from you, with interest. If the fraud took place within a relationship and there is also control or abuse, our practice specialising in gender-based violence can help you.

Every case is different; after studying yours, we will give you a personalised written quote.