Can evidence be falsified in a trial? What is procedural fraud? What are the consequences of presenting evidence in a trial knowing that it is false? Will there only be consequences if we achieve a favorable resolution? In the legal scenario, procedural fraud is a serious issue that requires close examination.
This article focuses on this fraud in the procedural field, where we are going to explore its regulation and its consequences. Through concrete examples, we will analyze how this crime can manifest itself in real situations. Join us to learn all these facts about the procedural scam.
Regulation of procedural fraud in the CP
Procedural fraud is regulated within article 250 of the Penal Code, therefore, it is included in the articles that generally regulate fraud (248 to 251 bis CP). Since procedural fraud is a subtype of fraud, we find it in the seventh section.
In order to understand procedural fraud in depth, we first have to talk about the crime of fraud.
What is the scam?
At a legal level, fraud consists of making an error in another person so that they carry out a financial disposition, that is, a purchase, a sale or an assignment or donation, to their own detriment or that of another person. The Supreme Court in its ruling STS 5573/2014, specifically in its third foundation, establishes the following requirements for the scam:
1) The use of a prior deception enough. Whether this deception has been sufficient or not must be assessed with respect to the case in question, both from an objective and subjective point of view, that is, the circumstances of the victim, as well as the means of deception used.
2) The deception must trigger the victim’s error.
3) There must also be an act of asset disposal of the taxpayer (victim), precisely due to the error, for the benefit of the author of the fraud or a third party.
4) Deceptive conduct must be carried out with intent and profit. If you don’t know what fraud is and the theory of crime is overwhelming you, I leave you our article that will help you The Theory of Crime explained for Law students【with Examples】
5) Damage for the victim must arise from it, with which there must be a causal link, that is, the deception is the cause of the damage.
Practical examples of scam
- Ponzi scheme
This has been one of the most common fraud crimes in recent years. It consists of an individual or company promising high investment returns to investors and using the funds of new investors to pay the returns to previous investors. The problem arises when one of the investors wants to withdraw their investment, since here they will never allow you to withdraw an amount greater than what you invested, even if you have been promised profits.
The deception here lies in the promise of unrealistic returns, which induces people to invest. Investors think they are making profits, but in reality, they are losing their money.
The key elements of a scam can be seen: Deception, which is quite evident from the moment the investment is accepted, although this may accept evidence to the contrary, act of asset disposal, profit motive on the part of the guilty party and economic damage to the victim.
- Phishing Email
Another of the most common scams today. You’ve probably received a phishing email at some point. It consists of: A scammer sends an email that appears to be from a bank and asks the victim to provide confidential information, such as credit card numbers or passwords, usually with some type of warning, such as that your account or card will be blocked otherwise, or even with a security alert.
The victim, deceived by the appearance of the email, provides the requested information, which results in an act of asset disposal to their own detriment, since the fraudster can use that information to commit financial fraud. Remember that in all crimes the profits will be confiscated as long as the requirements are met. If you want to know the requirements we recommend our article
What specialties does procedural fraud have?
Now that we know what scam is, if we apply it to the procedure, the scam materializes in a deception, which can be in the manipulation of evidence or another type of deception, to cause error in the judge or court, causing a resolution that harms the interests of the other party or a third party. In addition to manipulation in the judge or court, there may be other types of procedural fraud, when, for example, the deception is directed at the other party instead of towards the Judge or court, this occurs when the opposing party is It encourages you to agree, desist or reach a transaction through the deception typical of the scam. The penalty is one to six years in prison and a fine.
We must also keep in mind that when this scam involves basic necessities, housing or socially useful goods, it will entail a more serious prison sentence, reaching prison sentences of four to eight years and a fine of twelve to twenty-four months. The same penalty will be imposed when the economic damage reaches the amount of two hundred and fifty thousand euros.
Types of procedural fraud
According to the jurisprudence of the Supreme Court we can distinguish three subtypes of procedural fraud, which we find in the Fourth foundation of STS 4012/2006, thus we can distinguish:
- Own procedural fraud: It is one that occurs when the deceived person is the Judge or court, from which we obtain a resolution that harms the other party or a third party, based on falsified evidence or facts that the guilty party has introduced.
- Improper procedural fraud: This is a procedural fraud in which the deceived person is not the Judge but the opposing party, who, due to certain tricks carried out within the procedure (usually false evidence), is encouraged to acquiesce, desist, resign, reach a settlement, or in any case determine a change in your procedural will as a more favorable solution.
- Procedural fraud by omission: According to the ruling we have mentioned, procedural fraud by omission is called when certain relationships of trust and reciprocal loyalty impose a duty to act and that duty is omitted or ignored. To clarify, it is when deception occurs due to an omission of information, trust or loyalty to another party with whom there is a duty to do so.
The specific case would be, for example, that of two brothers who are co-plaintiffs in a case in which an amount is claimed, however, one does not inform the other that a payment has been made, and the brother who has not been informed takes carry out some asset disposition to your detriment, such as selling a house because you needed the money that you didn’t know you had already obtained.
Practical examples of procedural fraud
- Test simulation
Let’s imagine that one of the parties in a legal process for the division of inheritance manipulates or fabricates a will that is beneficial to them in order to present it as authentic before the court.
This misleads the court and the parties involved in the case, which meets the element of deception. The purpose of this scam is to influence the outcome of the case for the benefit of the party committing the scam. Thus we see all the elements of the scam: the deception that occurs in court, the financial disposition that will be given with the resolution that is favorable, profit motive by the party that falsifies the document in question and economic damage for the rest of the parts.
- Tampering with electronic evidence
In modern cases involving electronic evidence, such as emails, text messages, or digital documents, an individual may manipulate or falsify this evidence to present in court. The deception here lies in the manipulation of electronic evidence to distort the truth and achieve a benefit in the legal process, giving itself all the elements of procedural fraud, since it is another form of evidence simulation.
- False testimony to influence the opposing party
José has a lawsuit against Carlos for an amount of money, a debt that Carlos does not recognize. José convinces a friend to be her witness, lying that she heard the entire verbal contract and that Carlos promised to pay the established amount. Instead of presenting said witness at the hearing, José informs Carlos and his lawyer of the existence of that witness, and she herself speaks with them, telling them what she will say at trial. Faced with this, Carlos decides to acquiesce since he sees no chance of winning the case.
In this case we would be facing an improper procedural fraud, since the false witness has not been presented at an official level in the procedure, but without a doubt this false evidence has influenced Carlos’ determination and his procedural rights, causing him a clear damage.
Conclusions
In this article you have learned what procedural fraud is, we have started by analyzing in depth the scam and its clearest requirements: considerable deception, economic damage, disposition and profit motive. Subsequently, we have delved into the subtype of procedural fraud, which is that deception that occurs in a procedure, which leads to a resolution or an unfair termination in that procedure since it has been based on either the resolution or the decision of the party contrary to false evidence or facts.
You have also known the types of procedural fraud, distinguishing between whether the deceived person is the Judge or court, the other party or even if the deception consists of omitting a duty of trust. Finally, through the examples you have managed to understand both crimes and their differences in depth.