Is the professional credibility is an aggravating con?
Article 250.1. 6 del código penal establece como agravante del delito de estafa el aprovechamiento de la credibilidad empresarial o profesional del acusado.
The question is problematic, because without a modicum of trust (to which the case is referred to as generic trust) It would be difficult for the crime should occur. And moreover, aggravated type has significant consequences leading to the courts interpret it restrictively.
The doctrine book this aggravating to cases where in addition to the destruction of such "generic trust", the scam is conducted from a position of credibility "qualified", that exceeds the basic level, that is implicit in this type of crime.
It was felt that there is aggravating the victims admitted to a nursing home and the owner and director of the same (STS 16 July 2013). However, It has not established the existence of such an aggravating circumstance in the case of some defendants who generated the confidence of some investors to commit the crime (STS 18 July 2001).
Recently, the Supreme Court has ruled on one case in Judgment 22 December 2015.
Don Bernardo, taking advantage of their status as owner and sole director of the company COX, relying on the relationship of trust earned with Maria Inmaculada, won also thanks to its business credibility, he convinced his victim for the construction of two houses, que luego le debían ser entregadas, against advance 72.121 euros. Don Bernardo knew he would not carry out such construction and appropriated money. Only after repeated complaints returned 6.000 euros. The defendant acted similarly and similar amounts, with two other couples for victims.
The Provincial Court of Barcelona, in sentence 16 February 2015, He sentenced to four years in prison D. Bernardo, as an offender continued scam.
D. Bernardo filed appeal to the Supreme Court. Inter alia, alleged infringement of Article 250.1.6 CP collecting aggravating business or professional credibility.
As to aggravating business credibility, the High Court considers the reason. For the Board, Case Hearing, It is limited to transcribe the content of the offense and does not add any evidence in support allows,
"Aggravation that can only operate in most special cases and when disclosure with particular intensity"
The Chamber refers to the STS 17/6/2015, nº 371/15 It is indicating that paragraph 6 of art. 250.1 Penal Code :
“… está reservada para aquellos supuestos, certainly exceptional in addition to breaking a confidence generated, underlying profit at all typical of the crime of misappropriation and fraud, the typical action is done from the position of greater confidence and credibility that characterizes certain relationships, pre- and others, the underlying legal relationship, definitely a plus that makes the most serious breach of trust in these crimes”.
For D. Bernardo, the statement of facts the duration and the type of relationships that existed is not known to appreciate the existence of aggravating or professional business credibility.
Ultimately, It is rejecting the existence of aggravating "businesswoman credibilityl "considering that the competition requires the presence of a specially qualified trust.