Article 250 Spanish Criminal Code: Aggravated Fraud

Article 250 of the Spanish Criminal Code raises the penalty for fraud from the basic range of article 249 to imprisonment of one to six years, and to four to eight years in the gravest cases. The aggravating circumstances it lists are the ones that appear in almost every serious case involving foreign nationals in Spain: fraud on housing, fraud exceeding fifty thousand euros, abuse of a personal relationship or of professional credibility, and fraud committed within judicial proceedings. Property purchase frauds and investment frauds on the Costa Blanca are prosecuted under this article rather than under article 249.

Wording of Article 250 of the Spanish Criminal Code

Elements of the offence

1. All the elements of the basic offence of fraud in article 249: a deception sufficient to produce error, an error in the victim, a disposition of property made as a result of that error, and loss to the victim or to a third party.
2. At least one of the circumstances listed in paragraph 1, each of which must be pleaded and proved independently of the others.
3. For the threshold circumstances, an amount established by evidence rather than by estimate: the value defrauded, not the sum claimed, must exceed 50,000 or 250,000 euros.
4. For the abuse of a personal relationship, a pre-existing bond of trust which was itself instrumental in the deception, going beyond the ordinary confidence between contracting parties.

Defence strategy

Attacking each aggravating circumstance separately. The circumstances are not cumulative in effect but they are cumulative in pleading, and prosecutors routinely charge several where only one is supportable. The defence addresses each in turn: whether the property was housing in the sense of the provision or a commercial investment, whether the aggregate figure has been calculated by adding sums that belong to distinct transactions, and whether the number of persons affected reaches the threshold the case law requires. Removing the aggravating circumstances returns the case to article 249 and to a sentence capable of suspension.

Civil breach rather than criminal deception. The recurring issue in property and investment cases is whether there was a deception at the moment of contracting or a subsequent failure to perform. A developer who could not complete because of a planning refusal or an insolvency, and an intermediary whose projections proved wrong, breach a contract but do not necessarily commit fraud. The defence reconstructs the chronology from the banking records, the planning file and the correspondence in order to show that the intention and the ability to perform existed when the money was received.

The sufficiency of the deception and the victim’s own diligence. Spanish law requires the deception to be sufficient, assessed objectively and in the light of the victim’s circumstances. Where a purchaser made no land registry search, ignored express written warnings or contracted outside any professional channel, the courts have held the deception insufficient and directed the parties to the civil jurisdiction. This argument requires the documentary trail of what the victim was told and what was available to them.

Restitution before trial. Because the aggravating circumstances raise the sentence into brackets that exclude suspension, the return of the sums before the trial is more valuable here than in any other property offence. Full restitution founds the mitigating circumstance of reparation and, where the case permits, an agreed disposition with the one third reduction can bring the final sentence back below the threshold at which imprisonment becomes unavoidable. The negotiation is usually with the victim’s counsel rather than with the prosecutor, and it should begin before the indictment is filed.

• Property fraud in Spain: defence service
• Article 249: computer and payment fraud
• Fraud lawyer in Alicante
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.