Social Security Fraud Lawyer in Marbella

The fraudulent element: mere non-payment is not enough

As is the case with the tax offense, case law requires an additional element of concealment or falsity beyond mere failure to comply with the obligation to pay contributions, which by itself constitutes only an administrative infringement recoverable through the enforcement procedure:

"...la ocultación de datos relevantes para la determinación de la cantidad a ingresar... es un elemento del tipo objetivo."

(The concealment of information relevant to determining the amount owed is an element of the objective elements of the offense.) The Supreme Court has reiterated this requirement in subsequent rulings, clarifying that the offense does not simply consist of failing to pay the contributions owed, but of doing so through acts of concealment or falsity in the declarations filed with the General Treasury of the Social Security — simulating part-time contracts that are in reality full-time, failing to register workers who are actually employed, or declaring contribution bases lower than the real ones. Our defense focuses, in the first instance, on establishing that the non-payment stemmed from cash-flow difficulties or a management error, without the element of intentional concealment the offense requires.

The restrictive computation of the amount: no interest or surcharges

One of the technical questions of greatest practical significance is the precise determination of which items make up the defrauded amount for the purposes of reaching the €50,000 criminal threshold. The Supreme Court has set a restrictive standard of undeniable defensive relevance:

"...la suma defraudada... queda integrada por el importe que se debió cotizar, sin incluir en su cuantificación los intereses generados y los recargos por mora y apremio."

(The defrauded amount consists solely of the sum that should have been paid in contributions, excluding from its calculation the interest accrued and the surcharges for late payment and enforcement.) This doctrine proves decisive in practice: when the General Treasury of the Social Security includes late-payment and enforcement surcharges in its calculation in order to reach the statutory threshold, it falls to the defense to demand a strict recalculation limited to the contributions themselves — an exercise that, in a good number of cases, results in the actual defrauded amount falling below the criminal threshold, redirecting the matter to a purely administrative track.

Regularization as an exonerating excuse and the parallel enforcement track

Article 307.3 of the Criminal Code sets out, in terms almost identical to those of the tax offense, an exonerating excuse for anyone who regularizes their situation through the complete acknowledgment and payment of the debt before being notified of the initiation of inspection proceedings, or before the Public Prosecutor's Office or the Social Security's Legal Service files a criminal complaint or report. Regularization, moreover, bars prosecution for accounting irregularities or instrumental falsifications committed solely in connection with the regularized debt. As in the tax field, the existence of criminal proceedings does not suspend the administrative action to assess and collect the debt, unless the judge — upon the provision of security, or exceptionally without it where requiring it could cause irreparable harm — orders the suspension of enforcement proceedings.

The aggravated offense and benefit fraud (Articles 307 bis and 307 ter of the Criminal Code)

Article 307 bis of the Criminal Code raises the penalty to imprisonment from two to six years where the defrauded amount exceeds €120,000 or where the fraud is committed within a criminal organization or group. Alongside this offense, Article 307 ter of the Criminal Code independently punishes fraud in obtaining or wrongfully maintaining Social Security system benefits through error caused by simulation, misrepresentation, or concealment of facts — a frequent scenario in the collection of unemployment benefits or temporary incapacity benefits after the situation giving rise to them has ceased — whose consummation, as the Supreme Court has clarified, occurs at the moment the undue benefit is actually enjoyed, and not at the moment of a prior administrative act, such as the worker's registration.