Crime of fraud of Social Security benefits

The Supreme Court declares that the structure of the crime subject to condemnation is that of a crime of fraud, since there must be a deceptive strategy aimed at misleading the Social Security Administration, thus giving rise to an act of displacement patrimonial.

Crime of fraud of Social Security benefits

The Chamber emphasizes that article 307 ter 1 CP (EDL 1995/16398)  sanctions in its basic modality whoever obtains, for himself or for another, the enjoyment of benefits from the Social Security System, the undue extension of the same, or facilitates to others its obtaining, by means of the error caused by simulating or misrepresenting facts, or consciously concealing facts about which it had the duty to report, thereby causing damage to the Public Administration.

Its structure is that of a fraud crime, a deceptive strategy aimed at misleading the Social Security Administration, thus giving rise to an act of asset displacement.

In the subjective sphere, fraud will be enforceable, understood as knowledge and will to obtain undue social benefits for oneself or for others, which cause economic damage to the Public Administration. This fraud must be antecedent or concomitant, without requiring a special intention to harm public interests.

The type can be done by action or by default depending on the typical modalities. The simulation or misrepresentation of facts that serve as a presupposition for the fraudulent obtaining of benefits correspond to types of action, while “the conscious concealment of facts that it had the duty to report” projects us towards a deception by omission, a construction which is not novel.

Ell deception constitutes the affirmation of the false facts as true, or the concealment of real facts. And the existence of typical deception has been appreciated when the legal behaviors required to avoid the result produced are omitted; or when those who have the position of guarantor for having generated a serious risk for the creditors’ assets, did not inform them of the imminent risk of default and the consequent financial damage that could have prevented the result or when the provision of mandatory information is omitted.

The  Article 307 ter CP (EDL 1995/16398) incorporates a crime of result whose consummation is deferred to the moment when the perceive of undue benefit occurs as a determinant of the actual damage to the assets of the Social Security. It affects new benefits or the undue extension of those that have been received. The precept establishes a singular rule of authorship, which attributes such a condition to whoever facilitates the obtaining of undue benefits to others, which can lead to special problems of subsumption in cases in which the person making such contribution is the official or authority in charge of the management of public assets, which this time does not affect us.

The facts declared proven fit flat in that typicality, insofar as they recreate the development by the accused of a strategy woven to obtain, by means of deceit to the State Public Employment Service and the General Treasury of the Social Security, the undue collection of unemployment benefits , for those who lacked the mandatory contributions. For this, the three defendants appeared to have a non-existent employment relationship, which served as an alibi to register with Social Security as an employee, keeping the worker in this fictitious work situation for long enough to be able to access unemployment benefits, without paying the corresponding quotes. In this way, the crime was consummated as soon as he received benefits for a total amount of 4,872.42 euros.