Specialist Fraud Defense

Fraud is the central figure of Economic and Property Criminal Law. Defined in Article 248 of the Penal Code, it punishes those who, "with intent to profit, use sufficient deceit to produce error in another, inducing them to perform an act of disposition to their own or another's detriment".

Unlike violent crimes, fraud is a crime of "intelligence" or "relationship," where the perpetrator uses cunning to vitiate the victim's consent. At Alonso Sala, we understand that effective defense in these cases requires absolute mastery not only of criminal dogmatics but also of the underlying commercial and financial operations. Knowing the law is not enough; one must understand the business.

Supreme Court Doctrine: "Sufficient Deceit" and Self-Protection

The core of every fraud is deceit. But not every lie is a crime. The Supreme Court requires deception to be "sufficient", that is, suitable and adequate to cause error in an average diligent person. This is where the case is won or lost:

• Theory of Suitability: If the deception is gross, incredible, or easily detectable (e.g., unrealizable promises), the conduct may be legally atypical.
• Victim's Duty of Self-Protection: If the victim is a bank or specialized company and did not perform minimum checks (Due Diligence), the deceit may not be considered "sufficient." Case law establishes that Criminal Law is not there to protect those who do not protect themselves due to laziness or gross negligence.

Real Estate and Urban Fraud

The real estate sector is a traditional focus of economic crime. We intervene in complex cases of:

• Double Sale: Selling the same property to two different buyers, hiding the first sale from the second acquirer.
• Concealment of Charges (Art. 251.2 CP): Selling a property as free of charges when it has hidden mortgages or embargoes.
• Amounts on Account: Appropriation of amounts paid for off-plan housing that are never built, without insurance or bank guarantee (Law 57/68).
• Vacation Fraud: Rentals of non-existent or usurped properties, very common in coastal areas.

Investment Fraud and Ponzi Schemes

We defend and prosecute in large-scale financial fraud plots. These crimes are often structured as pyramid schemes where fictitious yields are paid with the capital of new investors.

Key elements in defense/prosecution:

• The "Miss en Scène": Use of luxurious offices, complex financial terminology, and fake guarantees to overcome the victim's disbelief barriers.
• Financial Bucket Shops: Entities not authorized by regulators (CNMV/SEC) operating outside regulations (Boiler Rooms).
• Crypto Scams: Fake exchanges, rug pulls (liquidity withdrawal), and tokens with no underlying value. Blockchain traceability is essential.

Aggravated Types (Art. 250 CP): When Penalties Skyrocket

The Penal Code drastically hardens penalties (prison from 1 to 6 years and fines up to 12 months) when specific circumstances increase the severity of the illicit act. The most common in our practice are:

1. Basic Necessities: Fraud affecting housing (real estate fraud) or other goods of recognized social utility.
2. Abuse of Signature or Public Instrument: Manipulating, subtracting, or hiding official documents, files, or public protocols.
3. Artistic and Historical Heritage: Fraud related to goods of cultural value.
4. Economic Gravity (>€50,000): The threshold separating basic from serious fraud. If the damage exceeds 50,000 euros, the penalty automatically rises.
5. Abuse of Personal Relationships: When the perpetrator takes advantage of their business credibility or special trust with the victim.
6. Procedural Fraud: A very serious modality where a Judge is deceived by false evidence to obtain an unfair favorable resolution to the detriment of the other party.
7. Recidivism: Having been convicted by final judgment for three crimes of the same nature.

Important Note: If the defrauded value exceeds €250,000, the penalty is prison from 4 to 8 years, which almost inevitably implies effective prison entry in case of conviction.

Computer Fraud (Art. 249 CP): The New Paradigm

The legislator has adapted the penal type to the digital era. Art. 249 specifically punishes those who achieve a non-consensual transfer of assets through:

• Computer Manipulation: Alteration of source codes, databases, or input/output systems.
• Social Engineering: Techniques like Phishing, Pharming, or CEO Fraud (Business Email Compromise).
• Credit/Debit Cards: Use of illicitly obtained payment data or card cloning for operations detrimental to the holder.

In these cases, technical defense is purely technological: analysis of logs, IP addresses, banking trojans, and breaking the chain of custody of digital evidence are essential for acquittal.

Circumstantial Evidence and Criminal Compliance

Since it is impossible to "read the mind" of the accused to prove intent, the Courts use circumstantial evidence. They analyze external conduct: Was there a flight? Forgery? Sought insolvency?

For companies, the best defense is prevention. An effective Criminal Compliance Program can exempt the legal entity from criminal liability (Art. 31 bis CP) if it is proven that controls were implemented to prevent executives or employees from committing fraud on behalf of the entity.

Integral Criminal Defense Strategy

In property crimes, passivity leads to conviction. Our firm deploys a proactive defense strategy in three phases:

• Instruction Phase (Investigation): We request expert accounting reports to prove the company's solvency at the time of contracting. We provide emails and communications demonstrating negotiating good faith.
• Intermediate Phase: If the investigation is weak, we request free dismissal due to the atypicality of the facts (considering the matter a civil debt).
• Oral Trial Phase: If it goes to trial, we attack the prosecution's evidence by questioning the documentary chain of custody and exploiting contradictions in prosecution witnesses.

In addition, in high-risk cases, we assess and manage Damage Repair (Ad Cautelam Consignment). Judicially depositing the claimed amount before trial does not imply admitting guilt, but acts as "insurance": if there were a conviction, the penalty would be reduced by one or two degrees (highly qualified mitigating factor), allowing in most cases the suspension of the prison sentence.