Insurance Fraud Criminal Lawyers

Insurance Fraud: Concept, Modalities and Penalties (Arts. 248-250 CP)

Insurance fraud is a specific modality of the common fraud offence of Art. 248 CP, characterised by the passive subject —the insurance company— and by the defraudatory mechanism exploiting a contractual coverage relationship. It is integrated when the insured or a third party, with intent to profit, induces error in the insurer through sufficient deceit on the existence, nature or magnitude of the covered claim, causing an act of patrimonial disposition (indemnity payment) to the entity's detriment. The protected legal interest is the insurer's patrimony and, mediately, the collective trust in the insurance system, which requires truthfulness for the sustainability of premiums and the effective coverage of honest insured persons. Consolidated Supreme Court case-law has clarified that defraudatory intent must be specific and circumstantial evidence rests on the incongruity between the declared claim and objective circumstances.

Methods of Commission

The methods of commission in insurance fraud are extraordinarily varied. The total simulated claim consists of the intentional provocation of the damaging event (deliberate fire, provoked traffic accident, faked robbery or self-report of non-existent theft) to collect coverage; it frequently concurs with the offences of arson (Art. 351 CP), simulation of crime (Art. 457 CP) or false accusation (Art. 456 CP). The fraudulent inflation of the claim exaggerates the value of damaged, stolen or destroyed goods, or the extent of personal injuries. Medical-care fraud covers feigned injuries, simulation of prolonged labour disabilities, unnecessary treatments or collusion with clinics to inflate invoices. Fraudulent double insurance consists of contracting identical policies with several companies and collecting cumulatively, violating the indemnity principle. Falsehood in the risk declaration when contracting the policy (concealment of medical history, previously accidented vehicles, real professions) may integrate the modality by initial deceit.

Penalties and Concurrences (Arts. 248-250 CP)

The penalties are those of the fraud offence: 6 months to 3 years' prison and fine in the basic offence (amount between €400 and €50,000); 1 to 6 years' prison and 6 to 12 months' fine in the aggravated modality of Art. 250 CP when some circumstance concurs (amount over €50,000, abuse of credibility or special relations, special economic seriousness, multiple victims); and 4 to 8 years' prison in the hyper-aggravated type of Art. 250.2 when the amount exceeds €250,000. Civil liability demands full restitution of collected indemnities plus legal interest and, where appropriate, the insurer's expert investigation expenses. The concurrence with other offences may multiply penalties: deliberate arson under Art. 351 CP (10 to 20 years when there is danger to persons), injuries under Art. 147 (up to 3 years), document forgery under Art. 392 (6 months to 3 years) and crime simulation under Art. 457 (6 to 12 months' fine). Collateral consequences include policy termination, registration in sectoral files (Insurance Historical File) and future limitation of access to the insurance system.

Defence Strategy

The technical defense in insurance fraud articulates four consolidated axes. First, the reality of the claim: independent technical expert evidence proving the true cause of damage (forensic fire-cause expertise, accident reconstruction, independent medical expertise for injuries); contradictory expert evidence to that performed by the insurer is decisive. Second, absence of defraudatory intent in inflation cases: honest valuation errors, reasonable differences on real value, valuation based on replacement invoices; case-law has consolidated that mere valuation discrepancy does not constitute fraud. Third, compliance with the insured's information duties under Insurance Contract Act 50/1980: the non-fraudulent risk declaration, although inaccurate, does not integrate the offence. Fourth, atypicity due to economic irrelevance: when the defrauded amount is below €400, qualification as minor offence with fine applies, and the mitigator of Art. 21.5 CP (damage repair) facilitates suspension.

Current Forensic Practice

In current forensic practice, insurance frauds have multiplied in four typical scenarios: home insurance fraud (simulated claims, theft exaggeration), vehicle insurance fraud (provoked accidents, simulated injuries for personal-damage compensation), health insurance fraud (unnecessary treatments, collusion with clinics), and life or death insurance fraud. Organic Law 1/2025 on Justice Service Efficiency, Act 20/2015 on regulation of insurance activity and consolidated Supreme Court case-law have reinforced detection and prosecution mechanisms, as well as rigorous assessment of technical expert evidence. Insurance anti-fraud departments (FBI Insurance, ICEA Antifraud, Lince) use sophisticated forensic expertise: fire cause analysis, biomechanical accident reconstruction, forensic medical expertise, statistical coincidence analysis. At Alonso Sala, with 15+ years' experience, we undertake the technical defence of the insured through contradictory expert evidence, as well as, where appropriate, the representation of the insurer as private prosecution to articulate the criminal complaint and the full recovery of unduly collected amounts.

Completion and Attempt

Insurance fraud is completed with the effective collection of the undue indemnity, the moment when the patrimonial transfer to the insurer's detriment occurs. When the anti-fraud department detects the incongruity and the entity refuses payment before disbursing it, the facts remain at the attempt stage (Arts. 16 and 62 CP), with the penalty lowered by one or two degrees. The distinction is relevant: in attempt there is no consummated patrimonial harm, which conditions both the penalty and civil liability. The collection date also determines the calculation of the offence's limitation period.

Burden of Proof and Presumption of Innocence

The insurer's anti-fraud department report is not sufficient incriminating evidence on its own: it provides indicia, but criminal conviction requires proving defraudatory intent beyond reasonable doubt. Circumstantial evidence (incongruities, statistical coincidences, claims history) must be plural, concordant and not rebutted by a reasonable alternative explanation. The defence opposes independent contradictory expert evidence and stresses that the insurer's mere suspicion or a simple valuation discrepancy do not defeat the presumption of innocence (Art. 24.2 of the Constitution). The criminal standard is far more demanding than the civil one of the insurance contract.

The Civil Route of the Insurance Contract

Not every conflict with the insurer is a crime. Insurance Contract Act 50/1980 regulates strictly civil consequences: the duty to declare the risk (Art. 10) and the effect of its breach on the premium and coverage, as well as the insurer's release when the claim was caused by the insured's bad faith (Art. 19). An inaccurate risk declaration or a discrepancy over the indemnity may be resolved in the civil sphere —with loss or reduction of the indemnity— without integrating the criminal offence of fraud, which requires sufficient deceit and defraudatory intent. Distinguishing the contractual dispute from criminal fraud is a central axis of the defence.