Article 250 of the Criminal Code

What Article 250 of the Criminal Code punishes

Article 250 does not create a free-standing offence: it sets out the aggravated forms of fraud. It therefore presupposes that all the elements of Article 248 CP are present —sufficient and prior deceit, error, act of disposition, loss and intent to profit— and adds circumstances that raise the penalty because of the nature of the asset affected, the scale of the loss, the manner of commission, or the abuse of trust placed in the offender.

Paragraph 1 lists eight circumstances: that the fraud concerns essential goods, housing or other assets of recognised social utility (1st); that it is committed by abusing another person's signature, or by removing, concealing or rendering useless proceedings, a case file, a protocol or a public or official document (2nd); that it concerns assets forming part of the artistic, historical, cultural or scientific heritage (3rd); that it is of particular seriousness, having regard to the scale of the loss and the economic situation in which it leaves the victim or their family (4th); that the value defrauded exceeds 50,000 euros or affects a large number of people (5th); that it is committed by abusing personal relationships between victim and offender, or by exploiting the offender's business or professional credibility (6th); that it amounts to procedural fraud (7th); and multi-recidivism, where the offender had already been finally convicted of at least three less serious or serious offences of the same nature within this chapter, spent records and those that ought to be spent not being counted (8th).

Penalty

Any of those eight circumstances carries one to six years' imprisonment and a fine of six to twelve months. Paragraph 2 provides a second tier, with four to eight years' imprisonment and a fine of twelve to twenty-four months, in two situations: where any of the 4th, 5th, 6th or 7th circumstances concurs with the 1st —for instance, a loss above 50,000 euros affecting housing— and where the value defrauded exceeds 250,000 euros, regardless of any other circumstance. In both tiers the maximum penalty exceeds five years' imprisonment, so the offence is time-barred after ten years under Article 131 CP, as against five years for basic fraud.

Procedural fraud under Article 250.1.7

The 7th circumstance has a profile of its own and the provision defines it: procedural fraud is committed by those who, in judicial proceedings of any kind, manipulate the evidence on which they seek to base their submissions, or employ some analogous procedural fraud, causing the court to err and to issue a decision harming the economic interests of the other party or of a third party. Its distinctive feature is that the party deceived —the court— and the party harmed are different persons, which has led case law to clarify that it is enough for the decision to be capable of causing the financial loss, without requiring that it actually be enforced. The procedural fraud defence service deals with this form separately.

What the defence turns on

In Article 250 proceedings the argument is rarely about whether there was deceit: it usually turns on which aggravating circumstance applies, since the sentencing range, the competent court and the limitation period all depend on it. Four questions take up most of the work. First, the amount: an expert determination of the loss actually caused, without double-counting items or adding interest or expected profit, may bring the case below the 50,000 or 250,000 euro thresholds and change the sentencing tier. Second, the abuse of personal relationships in the 6th circumstance, which requires a qualified pre-existing trust distinct from the trust inherent in any contract, so that the same deceit is not punished twice. Third, the particular seriousness of the 4th circumstance, which looks at the situation in which the victim is left and not only at the figure, and which cannot be applied alongside the 5th on the same facts without double-counting. And fourth, undue delay: these proceedings, with voluminous documentary and expert evidence, frequently run for years, and the mitigating circumstance in Article 21.6 CP, where treated as highly qualified, can reduce the penalty by one or two degrees. The aggravated fraud defence service and the extended analysis of Article 250 CP develop these criteria.