Social Security plays a fundamental role in the protection of workers and citizens in Spain.
His main target es guarantee the economic and social well-being of the population, providing services and benefits such as health care, pensions, and unemployment benefits.
However, when crimes against Social Security are committed, this system is undermined and society as a whole is affected.
In this article, we will explore in depth the Criminal and economic sanctions applied in cases of crimes against Social Security in Spain.
Understanding the seriousness of these types of crimes and the legal and financial consequences they entail is essential to prevent their commission and for those who may face related charges.
At RRYP Global, we are expert criminal lawyers. Contact us and we will help you with whatever you need: +34 957 858 952 / [email protected]
Crime against Social Security: What does it entail?
Crime against Social Security refers to the performance of illegal actions with the purpose of evading compliance with the obligations established in Social Security regulations.
These actions may include hiding or falsification of information, tax evasion or fraud in obtaining benefits.
Crimes against Social Security can be committed so much for individuals as for companies y organizations.
Committing this crime, according to articles 307 to 308 bis, implies defrauding Social Security by avoiding the payment of contributions, provided that the sum exceeds the 50.000 Euros.
1. Anyone who, by action or omission, defrauds the Social Security by evading the payment of its contributions and joint collection concepts, improperly obtaining refunds thereof or enjoying deductions for any concept also improperly, provided that the amount of the defrauded contributions or of the returns or undue deductions exceeds fifty thousand euros will be punished with a prison sentence of one to five years and a fine of one to six times the aforementioned amount unless he has regularized his situation before the Social Security in the terms of section 3 of this article. The mere presentation of the contribution documents does not exclude fraud, when this is proven by other facts. In addition to the aforementioned penalties, the person responsible will be imposed the loss of the possibility of obtaining public subsidies or aid and the right to enjoy tax or Social Security benefits or incentives for a period of three to six years. Article 307.1 Penal Code
For this crime to be established, there must be deliberate intent (fraud), since its commission through negligence is not recognized.
It is also required that there exists a legal tax relationship between the offender, who is the taxpayer, and Social Security, which represents the Public Treasury.
This relationship implies that the taxpayer causes harm that materializes when he or she avoids paying taxes, retains undue amounts, or receives undue refunds or tax benefits.
Criminal penalties in cases of crimes against Social Security
Criminal penalties for offences against Social Security can be severe and may vary depending on the nature and magnitude of the offence.
Some of the most common criminal penalties include:
- prison sentences: In the most serious cases, such as massive Social Security fraud, perpetrators can be sentenced to prison sentences that can vary in length depending on the severity of the crime.
- economic fines: Violators may be required to pay substantial fines that are calculated based on the amount defrauded and other factors related to the crime.
- Criminal record: A conviction for a crime against Social Security can leave a criminal record, which can have negative repercussions on the personal and professional life of the offender.
Financial penalties in cases of crimes against Social Security
In addition to criminal penalties, offenders may be subject to financial penalties involving the repayment of defrauded funds and the payment of late fees and interest.
These penalties can significantly increase the financial burden on offenders.
Article 307 of the Penal Code
«1. Anyone who, by action or omission, defrauds Social Security by evading payment of Social Security contributions and joint collection concepts, improperly obtaining refunds of the same or enjoying deductions for any reason also in an improper manner, provided that the amount of the contributions defrauded or of the improper refunds or deductions exceeds fifty thousand euros, shall be punished with imprisonment from one to five years and a fine of one to six times the aforementioned amount, unless he or she has regularised his or her situation with Social Security in accordance with the terms of section 3 of this article.
The mere presentation of the contribution documents does not exclude fraud, when this is proven by other facts.
In addition to the aforementioned penalties, the person responsible will be imposed the loss of the possibility of obtaining public subsidies or aid and the right to enjoy tax or Social Security benefits or incentives for a period of three to six years.
2. For the purposes of determining the amount mentioned in the previous section, the total amount defrauded over four calendar years will be used.
3. The situation with Social Security will be considered regularized when the person liable to Social Security has fully acknowledged and paid the debt before being notified of the initiation of inspection proceedings aimed at determining said debts or, in the event that such proceedings have not taken place, before the Public Prosecutor or the Social Security Attorney files a complaint or report against the person or before the Public Prosecutor or the Examining Magistrate carries out actions that allow them to have formal knowledge of the initiation of proceedings.
Likewise, the effects of the regularization provided for in the previous paragraph will be applicable when debts to Social Security are satisfied once the Administration's right to determine them through administrative channels has expired.
The regularization of the situation before the Social Security will prevent said subject from being prosecuted for possible accounting irregularities or other instrumental falsehoods that, exclusively in relation to the debt subject to regularization, he could have committed prior to the regularization of your situation.
4. The existence of criminal proceedings for an offence against Social Security shall not paralyse the administrative procedure for the liquidation and collection of the debt contracted with Social Security, unless the Judge so agrees after providing a guarantee. In the event that a guarantee cannot be provided in whole or in part, the Judge may, on an exceptional basis, agree to the suspension with total or partial exemption from the guarantees, in the event that he or she considers that the execution could cause irreparable damage or damage that is very difficult to repair. The administrative liquidation will ultimately be adjusted to what is decided in the criminal proceedings.
5. Judges and Courts may impose on the person liable to Social Security or the perpetrator of the crime a penalty that is one or two degrees lower, provided that, within two months from the date of the court summons as the accused, he or she pays the debt to Social Security and judicially acknowledges the facts. The above shall also apply to other participants in the crime other than the debtor to Social Security or the perpetrator of the crime, when they actively collaborate in obtaining decisive evidence for the identification or capture of other responsible parties, for the complete clarification of the criminal acts or for the investigation of the assets of the person liable to Social Security or of other responsible parties for the crime.
6. In proceedings for the offence contemplated in this article, for the execution of the fine and civil liability, which shall include the amount of the debt to Social Security that the Administration has not settled due to prescription or other legal cause, including late payment interest, the Judges and Courts shall seek the assistance of the services of the Social Security Administration, which shall demand them through the administrative enforcement procedure.»
307 bis:
«1. The crime against Social Security shall be punished with imprisonment from two to six years and a fine of double to six times the amount when any of the following circumstances occur in the commission of the crime:
a) That the amount of the defrauded contributions or of the undue refunds or deductions exceeds one hundred and twenty thousand euros.
b) That the fraud was committed within an organization or criminal group.
c) That the use of natural or legal persons or entities without legal personality, businesses or fiduciary instruments or tax havens or territories with zero taxation conceals or hinders the determination of the identity of the person liable to Social Security or the person responsible for the crime, the determination of the amount defrauded or the assets of the person liable to Social Security or the person responsible for the crime.
2. All other provisions contained in Article 307 shall apply to the cases described in this article.
3. In these cases, in addition to the penalties indicated, the person responsible will be subject to the loss of the possibility of obtaining subsidies or public aid and the right to enjoy tax or Social Security benefits or incentives for a period of four to eight years.
Article 307 ter:
«1. Anyone who obtains, for himself or for another, the enjoyment of benefits from the Social Security System, the undue extension of the same, or facilitates their obtaining by others, through error caused by simulation or misrepresentation of facts, or the conscious concealment of facts of which he had the duty to report, thereby causing harm to the Public Administration, shall be punished with a penalty of six months to three years in prison.
When the facts, in view of the amount defrauded, the means used and the personal circumstances of the author, are not particularly serious, they will be punished with a fine of between two and six times.
In addition to the aforementioned penalties, the person responsible will be subject to the loss of the possibility of obtaining subsidies and the right to enjoy tax or Social Security benefits or incentives for a period of three to six years.
2. When the value of the benefits exceeds fifty thousand euros or any of the circumstances referred to in letters b) or c) of section 1 of article 307 bis have occurred, a prison sentence of two to six years and a fine of one to six times that amount shall be imposed.
In these cases, in addition to the aforementioned penalties, the person responsible will be imposed the loss of the possibility of obtaining subsidies and the right to enjoy tax or Social Security benefits or incentives for a period of four to eight years.
3. Any person who repays an amount equivalent to the value of the benefit received, increased by an annual interest rate equivalent to the legal interest rate on money increased by two percentage points, from the time the benefit was received, before being notified of the initiation of inspection and control proceedings in relation to the same or, in the event that such proceedings have not taken place, before the Public Prosecutor's Office, the State Attorney, the Social Security Attorney, or the representative of the autonomous or local Administration in question, files a complaint or claim against him or before the Public Prosecutor's Office or the Examining Magistrate carries out actions that allow him or her to have formal knowledge of the initiation of proceedings, shall be exempt from criminal liability in relation to the conduct described in the preceding sections.
The exemption from criminal liability contemplated in the previous paragraph will also reach said subject for possible instrumental falsehoods that, exclusively in relation to the defrauded benefits subject to reimbursement, he may have committed prior to the regularization of his situation.
4. The existence of criminal proceedings for any of the offences in paragraphs 1 and 2 of this article shall not prevent the competent Administration from demanding the administrative reimbursement of benefits unduly obtained. The amount to be reimbursed shall be deemed to be provisionally fixed by the Administration and shall subsequently be adjusted to the final decision of the criminal proceedings.
The criminal procedure shall not paralyse the collection action of the competent Administration, which may initiate the proceedings aimed at collection unless the Judge, ex officio or at the request of a party, has agreed to suspend the enforcement proceedings after providing security. If it is not possible to provide security in whole or in part, the Judge may exceptionally agree to the suspension with total or partial exemption from security if he considers that the enforcement could cause irreparable damage or damage that is very difficult to repair.
5. In proceedings for the offence contemplated in this article, for the execution of the fine and civil liability, the Judges and Courts shall seek the assistance of the services of the Social Security Administration, which shall require them through the administrative enforcement procedure.
6. The provisions of section 5 of article 307 of the Criminal Code shall apply to the cases regulated in this article.
Article 308:
«1. Anyone who obtains subsidies or aid from the Public Administrations in an amount or value greater than one hundred and twenty thousand euros by falsifying the conditions required for their granting or concealing those that would have prevented it shall be punished with imprisonment from one to five years and a fine of one to six times the amount, unless he makes the repayment referred to in section 5 of this article.
2. The same penalties shall be imposed on anyone who, in the development of an activity financed in whole or in part with funds from public administrations, applies them in an amount exceeding one hundred and twenty thousand euros for purposes other than those for which the subsidy or aid was granted, unless he makes the repayment referred to in section 5 of this article.
3. In addition to the penalties indicated, the person responsible will be subject to the loss of the possibility of obtaining subsidies or public aid and the right to enjoy tax or Social Security benefits or incentives for a period of three to six years.
4. To determine the amount defrauded, the calendar year will be used and the subsidies or aid must have been obtained to promote the same subsidizable private activity, even if they come from different administrations or public entities.
5. The repayment referred to in paragraphs 1 and 2 shall be deemed to have been made when the recipient of the subsidy or aid proceeds to repay the subsidies or aid unduly received or applied, increased by the late payment interest applicable to subsidies from the time they were received, and it is carried out before notification has been given of the initiation of verification or control actions in relation to said subsidies or aid or, in the event that such actions have not taken place, before the Public Prosecutor's Office, the State Attorney or the representative of the regional or local Administration in question files a complaint or claim against the recipient or before the Public Prosecutor's Office or the Examining Magistrate carries out actions that allow them to have formal knowledge of the initiation of proceedings. Reimbursement will prevent the said subject from being pursued for any possible instrumental falsehoods that, exclusively in relation to the debt subject to regularization, he may have committed prior to the regularization of his situation.
6. The existence of criminal proceedings for any of the offences in paragraphs 1 and 2 of this article shall not prevent the competent Administration from demanding the administrative reimbursement of any subsidies or aid improperly applied. The amount to be reimbursed shall be deemed to be provisionally fixed by the Administration and shall subsequently be adjusted to the final decision of the criminal proceedings.
The criminal procedure will not paralyze the collection action of the Administration, which may initiate the actions directed to the collection unless the Judge, ex officio or at the request of a party, has agreed to the suspension of the enforcement actions prior to the provision of security. If it is not possible to provide security in whole or in part, exceptionally the Judge may agree to the suspension with total or partial exemption from security if he considers that the enforcement could cause irreparable damage or damage that is very difficult to repair.
7. Judges and Courts may impose on the person responsible for this offence a sentence of one or two degrees lower, provided that, within two months from the date of the summons as a defendant, he carries out the restitution referred to in section 5 and judicially acknowledges the facts. The above shall also apply to other participants in the offence other than the person obliged to make restitution or the perpetrator of the offence, when they actively collaborate in obtaining decisive evidence for the identification or capture of other offenders, for the complete clarification of the criminal acts or for the investigation of the assets of the person obliged or the person responsible for the offence.»
Responsibility of companies that commit crimes against Social Security
Article 310 bis: «When, in accordance with the provisions of article 31 bis, a legal person is responsible for the crimes included in this Title, the following penalties will be imposed: a) A fine of double the amount defrauded or improperly obtained, if the crime committed by the natural person carries a prison sentence of more than two years. b) Fine of double to quadruple the amount defrauded or improperly obtained, if the crime committed by the natural person carries a prison sentence of more than five years. c) Fine of six months to one year, in the cases included in article 310. In addition to those indicated, the responsible legal entity will be imposed the loss of the possibility of obtaining subsidies or public aid and the right to enjoy the benefits. or tax or Social Security incentives during the period of three to six years. A prohibition may be imposed to contract with Public Administrations. Taking into account the rules established in article 66 bis, the Judges and Courts may also impose the penalties included in letters b), c), d), e) and g) of section 7 of article 33. »
Prevention and legal defense
Prevention is essential in the fight against crimes against Social Security.
To avoid facing criminal and financial penalties, businesses and individuals must comply with tax obligations and provide accurate information to Social Security.
Education and compliance are essential to avoid legal problems in this area.
In case of facing accusations related to crimes against Social Security, It is vital to have adequate legal defense.
A lawyer specializing in law economic penalty can assess the situation, identify possible defenses, and work on the most effective legal strategy.
As specialists in criminal procedures, in RRYP Global We are committed to providing the best defense to protect our clients' interests.
We act immediately on your case and design a defensive strategy that adapts to your particular needs and circumstances.
Having the legal advice of an expert criminal lawyer is essential to guarantee the protection of freedom and avoid possible judicial errors that could lead to the imprisonment of an innocent person.
Conclusion on Criminal and economic sanctions for Crime against Social Security
Crimes against Social Security are serious and can have devastating consequences from both a criminal and economic perspective. Understanding the criminal and financial penalties associated with these crimes is crucial to preventing their commission and for those who may face related charges. Prevention, compliance and legal advice are key elements in the fight against crime against Social Security in Spain.
