Scam or abuse of trust: what is it and what can you do about it?

Scamming in the Criminal Code

Scamming is included in Article 496 of the Criminal Code and is described as follows:

Thus, for it to be a scam, some conditions must be met: 

• There must be a fraudulent understanding where the perpetrator must have the intention to appropriate to himself or another an object or part of the object that belongs to another person. This intent must be purposeful and cannot consist of negligence. 
   
• Deceptive means must be used to obtain the release or delivery. These fraudulent means may be: 
  • Using false names (either orally or in writing);
  • Using false capacities: assuming a title, a position, a relationship that one does not actually have (either orally or in writing) with the aim of misleading a third party and instilling in him the confidence attached to that capacity. 
  • Employing cunning subterfuges: performing externally visible and tangible deceptive acts, manoeuvres. A mere mendacious oral assertion is therefore not sufficient. 
     
• There must be a surrender or delivery of all types of tangible property belonging to another person's property. An exception to this concerns immovable property and service provision or delivery of services. A transfer of ownership of the property from the victim to the perpetrator is not required; the surrender of the property is sufficient. 

Moreover, the cunning must be decisive for the issue or delivery of the item, i.e. there must be a causal link between the cunning and the issue or delivery. 

For there to be a scam, it is not required that there be actual damage. It is sufficient that there be any damage, where the mere fact of the issue, delivery or wrongful appropriation of another person's property will generally cause actual damage.

Scamming is punishable by imprisonment from one month to five years and by a fine from EUR 26.00 to EUR 3,000.00 (to be increased by surcharges). Not only the accomplished offence is punishable but also the attempt to scam is punishable by imprisonment from eight days to three years and a fine from EUR 26.00 to EUR 2,000.00 (to be increased by opdecices).

Scam or abuse of trust?

Scamming and abuse of trust are two legal figures that are very similar. However, there is a slight difference: 

The crucial difference between scams and abuse of trust lies in how the handing over takes place and the intentions of the perpetrator during the moment of handing over. In abuse of trust, the victim voluntarily gives an item to the offender with knowledge of the case, agreeing that the offender should either return it or use it for a specific purpose. However, the offender decides to misappropriate the item in a fraudulent manner. Whereas in scamming, the offender has the case handed over by the injured party, where the victim's consent was obtained through fraudulent means as mentioned above. 

What can you do as a victim of scams?

Most victims of scams use a complaint with civil action before the investigating judge. 

This requires the investigating judge to verify and investigate the facts within a judicial enquiry. 

Please note that if you, the victim, open the investigation yourself, the payment of a deposit is requested before the complaint can be filed. For individuals, this deposit is EUR 500.00 and for companies EUR 1,000.00. It is therefore important to be sure that you have been scammed. 

At the end of the investigation, the file will be submitted to the Council Chamber, which will have to decide whether there are sufficient objections against the accused to refer the case to the correctional court. If the case is referred, the deposit will be refunded. If the accused is dismissed from prosecution, legal costs may be borne by the complainant. 

In addition, as a victim of scamming, you can also take civil action in an already ongoing judicial investigation where the facts are already under investigation. This can be done through a complaint to the investigating judge and then no deposit has to be paid.