I. Criminal Banking Fraud - Código Penal

Main types:

• Art.248-250 CP - Estafa (swindling): deceit + patrimonial displacement + profit. Aggravated estafa Art.250.1.5º if banking product, abuse of trust, >€250k.
• Art.252 CP - Administración desleal: directors mismanaging bank assets - key for evergreening cases
• Art.253 CP - Apropiación indebida
• Art.282 bis CP - Securities fraud: falsifying economic-financial information to attract investors - Bankia IPO case
• Art.290 CP - False accounting: falsifying annual accounts
• Art.301-304 CP - Money laundering

Evidence rules governed by Ley de Enjuiciamiento Criminal (LECrim):

A. Principle of production at trial:

Evidence must be produced at trial. However, it is during period of investigation that evidence that will be used to support charges must be obtained. Since crimes related to fraud are public, each party is obliged to cooperate with investigating judge

Judge instructor does pre-trial gathering. National High Court (Audiencia Nacional) has jurisdiction for large banking fraud.

B. Standard: Free evaluation of evidence (Art.741 LECrim) but limited by constitutional guarantees. No illegally obtained evidence Art.11.1 LOPJ.

II. Landmark Case Laws on Evidence

1. FALCIANI LIST - STS 23 Feb 2017 and AP Madrid 852/2015 - Stolen bank data as valid evidence

Spanish Supreme Court accepted as valid evidence bank data stolen by Hervé Falciani from HSBC Switzerland.

Facts: Falciani stole 24,000 customers data, French government gave list to Spanish Tax Agency (AEAT). Taxpayer hid >€5M in Swiss accounts.

Defense: Evidence obtained in violation of banking secrecy, violation of Art.18 CE, fruit of poisonous tree.

Supreme Court held:

The Spanish Tax Office got the Falciani List from French authorities. Spanish Law contains rule to prevent use of evidence obtained directly or indirectly in violation of Constitution, but here theft was committed by private individual abroad, not by Spanish police. Transmission via international cooperation was legal.

Audiencia Provincial de Madrid ruling 852/2015 states that economic information included in Falciani List has evidentiary value to justify conviction for offence against Public Treasury.

Result: €500M recovered, 6 years prison sentence for tax fraud confirmed. This ended debate - in Spain, illegally obtained evidence by private third party is admissible if State did not induce violation.

2. BANKIA IPO FRAUD - STS 23/2016 and STS 27 Jan 2016 Civil + STS 615/2023 Criminal

The most important banking fraud evidence case.

Civil: Two small investors claimed Bankia prospectus contained serious inaccuracies.

Spanish Supreme Court acknowledged Bankia IPO contained serious inaccuracies as to true financial condition... The bank must reimburse

Evidence standard eased:

The burden of proof for both misrepresentation and its materiality lies with investor, but decision in Bankia is favourable to investor as it eased burden of proof. It was apparent there was great disparity between financial information in prospectus and reality.

Supreme Court said: Proof of prospectus falsehood is enough, investor does NOT need to prove reliance - reliance presumed because disparity was notorious. Difference between 2011 prospectus showing €309M profit vs real €3bn losses.

Criminal: Same facts, directors acquitted in 282 bis trial. Why? Supreme Court reasoning was twofold:

Standard of proof in two jurisdictions was different. Criminal requires proof of intent to falsify (dolo), civil only requires objective inaccuracy. Approval by Bank of Spain does not exclude criminal liability but makes mens rea harder to prove.

3. PHISHING / DIGITAL FRAUD - STS 571/2025 9 April - Reversal of Burden

New constitutionalised standard for banking fraud victim:

Supreme Court Judgment 571/2025 - liability of bank not only for security failures in failing to detect fraudulent operations (multiple transfers in short period, at odd hours, clearly unusual activity), but also burden reversed: Bank must prove gross negligence or fraudulent behavior by user.

Based on Royal Decree-Law 19/2018 transposing PSD2 Art.36, 41-46:

Articles 36 and 41 to 46 establish nearly objective liability for banks. Bank is obligated to refund stolen money immediately, unless it can prove customer acted with serious negligence or fraud.

In recent ruling Spanish Supreme Court determined banks are liable for unauthorised transactions resulting from digital fraud, such as phishing or SIM swapping, unless they can demonstrate gross negligence on part of customer. This reinforces quasi-objective liability framework established by Directive 2015/2366

Evidence needed from bank: logs showing SCA (strong customer authentication), proof user authorized, expert IT forensic showing no security failure. If bank migration had no testing, ignoring security audit - cap on liability void - STS 949/2026.

4. EVIDENCE SEIZURE - Asset preservation standard

Investigative judge can adopt protective measures to secure assets and proceeds of fraud.

Two-prong test:

1. Fumus boni iuris - prima facie evidence supporting existence of fraud is sound
2. Periculum in mora - risk of asset dissipation

Bank accounts, phishing wallets can be frozen ex parte.

III. Practical Evidence Checklist in Spain

For criminal banking fraud prosecution, prosecutor needs:

1. Documental: Loan files, board minutes, CNMV prospectus, Bank of Spain inspection reports, forensic audit (KPMG style), Falciani-type data via mutual legal assistance
2. Pericial: Expert from Bank of Spain, CNMV, independent auditor proving accounting falsity and causation
3. Testifical: Whistleblower, compliance officer
4. Indiciaria: Indirect evidence allowed if plural, concordant, and no other reasonable explanation - crucial for evergreening where no direct email says "hide NPA"

For civil fraud against bank, client needs only:

1. Contract with unfair term
2. Proof payment
3. Bank then must prove transparency (Art.5 and 7 Law 7/1998) and no gross negligence (Art.45 RDL 19/2018)

This asymmetry is why 95% of banking litigation in Spain is now civil, not criminal - Bankia civil investors won in 2016, criminal acquittal came in 2023.