The Criminal Chamber of the Supreme Court has annulled the conviction for the crime of currency counterfeiting against a man who used metal pieces of the same dimensions, weight and electromagnetic effect of two-euro coins to defraud 5,000 euro from the ticket vending machines on the Madrid Metro Underground system.
The man inserted the pieces into the coin slot and then pressed the button to cancel the operation, making the machine return a two-euro legal tender coin and retain his fake model, an operation that he repeated at least 2,500 times with as many coins, and in numerous stations between June and November 2014.
The Court of Madrid sentenced him in the first instance to 6 years and 6 months in prison for a crime of counterfeiting currency in media competition with a continued crime of fraud, with the highly qualified mitigation of undue delays, sentences that were ratified by the Superior Court of Justice of Madrid.
The Supreme Court has partially upheld the defendant’s appeal and acquits him of the crime of counterfeiting currency, for which the sentence becomes 4 months in prison for the crime of fraud.
The court explains that the crime of counterfeiting currency, with an extraordinary penalty -from eight to twelve years in prison-, requires that the imitated currency be similar enough to the original to deceive an average person, that is, it has to be suitable for accessing economic traffic and its use as an intrapersonal payment instrument.
And in the case analysed, the court concludes that, “regardless of the thickness and diameter that could correspond to that of the two-euro coins, the appearance of the metal pieces used in the fraud excludes the slightest risk of confusion with a coin of legal tender. They lack any profile, any relief, any identifying sign that could pass them off as legal tender. Its appearance is that of a round metallic piece with the two surfaces sanded, in the manner of the old telephone tokens used in public booths, but without cracks, or to that of the tokens used in fairground attractions”.
This “absence of genuineness” was specified in the expert report itself and the Metro employees who extracted the parts from the vending machines agreed on this. For the Supreme Court “it is difficult to explain that with the probative material – testimonial and expert – produced and having the possibility of directly observing the metal pieces that acted as pieces of conviction, the slightest trace of genuineness can be identified with legal tender coins”, for which there was an infringement of the right to the presumption of innocence due to manifest incompleteness and irrationality in the evidentiary assessment.
The Chamber points out that it was not enough that the pieces, due to their characteristics of weight, dimensions and electromagnetic effect, served to ‘deceive’ the vending machines, which is absorbed by the crime of fraud that is confirmed, but rather to condemn for counterfeit currency should resemble two-euro coins, although the type does not require a kind of “false virtuosity” that makes the genuine coin indistinguishable from the imitated one, according to the sentence.
