How to Defend Yourself Against Fraud Charges: Complete Guide

Have you been accused of fraud or received a court summons? In this guide, the criminal lawyers at Alonso & Sala (Madrid) explain the keys to defending yourself against a fraud charge (Art. 248 of the Spanish Criminal Code, CP).

Are You Being Accused of Fraud? Understanding It Is Your Defence

When you receive a court summons for fraud, the first impulse is panic. But the reality is that not every accusation succeeds. Thousands of cases are dismissed or end in acquittal because the prosecution cannot prove the essential elements of the offence. Knowing those elements is your best weapon.

Fraud Offence: Article 248 of the Spanish Criminal Code

Art. 248 CP defines fraud as the use of "sufficient deception" to mislead another person, causing them to perform an act of disposing of assets to their own or another person's detriment, with intent to profit. Three key elements:

• Sufficient deception: Not every lie amounts to fraud. The deception must be capable of misleading a person of average diligence.
• Antecedent intent: The intention to deceive must exist BEFORE receiving the money. If the intention not to pay arises later, there is no fraud.
• Intent to profit: There must be an intention to obtain an unlawful benefit.

Crime or Civil Debt? The Key Battle

This is the decisive question in most of the fraud cases we defend. Thousands of businesses fail every year, leaving unpaid debts behind. That is NOT fraud, it is civil insolvency. For there to be a criminal offence, the prosecution must prove the antecedent intent: that the defendant already knew, before signing the contract, that they were not going to fulfil it.

Subsequent intent (deciding not to pay later because of supervening financial difficulties) is not criminally punishable. Our job is to reconstruct the chronology to show that the initial will was to comply.

The Penalties: When They Are Aggravated

The penalties vary significantly depending on the amount and the circumstances:

• Basic fraud (over EUR 400): 6 months to 3 years in prison.
• Aggravated fraud (over EUR 50,000): 1 to 6 years in prison.
• Highly aggravated fraud (over EUR 250,000): 4 to 8 years in prison.

Aggravating circumstances include: abuse of personal relationships, harm to essential goods (the family home), procedural fraud and multi-recidivism.

The Three Pillars of the Defence

At our firm we deploy a defence strategy based on three pillars:

1. Criminal atypicality: Showing that there was no prior deception and steering the case back to the civil courts.
2. Victim's own error: A defence based on the duty of self-protection. If the victim did not carry out the minimum checks that could be expected, the deception may not be "sufficient".
3. Reparation of damage: Depositing the amount claimed with the court before trial so as to obtain a highly qualified mitigating factor, reducing the penalty by one or two degrees.

Mistakes You Must NOT Make

• Making a statement without a lawyer: your police statement can be used against you. Exercise your right to remain silent.
• Destroying evidence: This is an additional offence and raises suspicion of guilt.
• Contacting the victim: It can be interpreted as intimidation or threats.
• Ignoring the court summons: It can lead to an arrest warrant.

Returning the Money Can Reduce the Sentence

Reparation of damage is an extremely powerful tool in property offences. It does not imply admitting guilt, but if there is a conviction, the penalty is reduced drastically. This is what we call "consignación ad cautelam": depositing the amount claimed with the court as insurance against a possible adverse ruling.