Commentary on Judgment No. 33535 of 2023: Concurrence of Crimes between Undue Use of Credit Cards and Fraud

Judgment No. 33535 of May 17, 2023, issued by the Court of Cassation, offers an important reflection on the crimes of fraud and undue use of credit cards, clarifying the conditions for the existence of a concurrence of crimes. The decision addresses a highly topical issue, considering the increase in computer and financial fraud involving the unauthorized use of payment instruments.

The Legal Context of the Judgment

The case involved the defendant F. C., who was accused of carrying out fraudulent operations using others' credit cards. The Court reiterated that, for a concurrence of crimes to be established, the conducts must be autonomous and distinct, aimed at obtaining an illicit profit through artifices beyond the initial offense.

Concurrence with the offense of undue use of payment instruments other than cash - Existence - Conditions. The concurrence of the offense of undue use of credit cards with that of fraud exists in the case of autonomous and distinct conducts, aimed at obtaining, through further artifices and deceptions, the illicit profit achieved as a result of the commission of the first crime.

This maxim highlights the importance of identifying the specific conducts that can constitute a concurrence of crimes. Therefore, the mere undue use of payment instruments is not sufficient; further fraudulent conducts are necessary to constitute the crime of fraud.

Analysis of Conducts and Legal Implications

The Court referred to Article 640 of the Criminal Code, concerning the crime of fraud, and Article 493 ter, which governs the undue use of payment instruments. It is important to note that jurisprudence, as highlighted in the judgment, requires a clear distinction between the two offenses. For the recognition of concurrence, the conducts must be not only autonomous but also aimed at exploiting the illicit profit derived from the first action.

• Undue use of credit cards: refers to the unauthorized use of others' payment cards.
• Fraud: consists of deceiving someone to obtain an illicit advantage.
• Concurrence of crimes: occurs when multiple crimes are committed autonomously but are connected.

Conclusions

Judgment No. 33535 of 2023 represents a significant step in the fight against financial fraud, clarifying the necessary conditions for the concurrence of crimes. The distinction between undue use of payment instruments and fraud is fundamental for the correct application of the law and for ensuring adequate justice. It is essential that legal professionals and citizens understand these dynamics in order to protect themselves and prevent increasingly widespread fraudulent behavior in the current landscape.