11 November 2022
Supreme Court Ruling no. 787/2022 of 26 September, issued, confirms the conviction of the accused as the perpetrator of a continuous offence of computer fraud; thus confirming the conviction of the Madrid Provincial Court (7th Section) of 6 March 2020.
Specifically, the Madrid Provincial Court had sentenced the accused as the perpetrator of a continuous offence of computer fraud, with the mitigating circumstance of undue delay, to 9 months’ imprisonment with the accessory of special disqualification from the right to passive suffrage during the time of the sentence.
The proven facts set out in the lower court ruling, and accepted by the High Court, are that in the period between 13 November 2014 and 18 August 2014, the accused ‘repeatedly accessed different terminal boxes or outdoor distribution cabinets of Telefónica de España, SAU, (hereinafter Telefónica) located on public roads in industrial areas in different localities in the south of Madrid (Getafe, Fuenlabrada, Pinto, Alcorcón, Leganés), to manipulate a large number of telephone lines by connecting terminal devices to them and using them to fraudulently make huge numbers of calls to three specific premium rate telephone lines with prefix 803: (. …) of which at least two (…) were his own.
In this way, the accused manipulated Telefónica’s automatic counting and invoicing systems, and managed to get Telefónica to invoice the fraudulent calls made to the customers of the telephone lines he was manipulating. And at the same time; he managed to simulate the appearance that the 803 lines receiving the calls had provided these customers with large volumes of premium rate services, which allowed him to bill and illegally obtain significant sums as remuneration for the provision of these services, amounts that were paid to him by the operators with which he had contracted the 803 lines, which in turn received them from Telefónica’.
The Supreme Court, in its Judgment, rejects each of the grounds put forward by the appellant, with particular mention of the plea put forward by the representation of the convicted person, that the facts declared proven could not be covered by art. 248.2 of the Criminal Code. Both the examining magistrate and the Provincial Court itself initially classified the facts as constituting the offence of fraudulent conveyance of fluids under art. 255 of the Criminal Code. The Public Prosecutor’s Office even requested that the case be closed on the grounds that the facts did not fall under any criminal precept.
However, the High Court agrees that the Provincial Court’s classification of the facts in the criminal type of art. 248.2 C.P. in its Judgment is correct, and specifically points out:
‘First of all, the fact that the Public Prosecutor’s Office did not file an indictment does not have any binding effect on the decision-making body, insofar as the private prosecution represented by Telefónica S.A. was formally constituted. Furthermore, the criteria of the Prosecutor of the lower court does not have any binding effect on the Prosecutor of the Supreme Court itself, who, as is reflected in the background of this decision, has requested the dismissal of the appeal.
The same is true of the investigating judge’s criterion when classifying the facts. Its functional competence is exhausted in the investigation phase, opening the door to the plenary session in which, based on the development of the evidence, the parties will definitively formalise their respective claims. And in this case, the fact is that the private prosecution qualified the facts as constituting an offence under art. 248.2.
The Chamber considers that the Court a quo has proceeded correctly in subsuming the facts in the fraud of art. 248.2 of the Criminal Code, which punishes ‘those who, for profit and using some computer manipulation or similar artifice, achieve a non-consensual transfer of any property asset to the detriment of another’.
And although the Court considers that there are ‘points of coincidence in the typical portion covered by arts. 248.2 and 255 of the Criminal Code’, it understands that in this case the insidious scheme to obtain a profit – which amounted to 72,538 euros – prevails over the obtaining of a free provision of the telecommunications service. And, in short, he sought his own enrichment by using sophisticated access to Telefónica S.A.’s terminal boxes or external distribution cabinets, thus managing to make huge numbers of calls to three specific premium rate lines with an 803 prefix, generating damage that was projected in two directions, affecting both the operator and the holders of the fraudulently used telephone lines.
It therefore considers the application of art. 248.2 to be correct, as opposed to art. 255 of the Criminal Code, as the appellant claims.
You can download below the full judgment published in the media ‘Otrosi.net’:
