Estelionato (Criminal Fraud): Offense Types and Applicable Penalties

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Estelionato, or criminal fraud, is among the most debated property crimes in Brazilian criminal law. Its offense types range from traditional fraud to electronic scams, which carry heavier penalties under Law 14.155/2021.

How the Brazilian Penal Code Defines Estelionato

Article 171 of the Brazilian Penal Code defines estelionato as obtaining an unlawful advantage, for yourself or someone else, to another person’s detriment, by inducing or maintaining someone in error through a trick, a ruse, or any other fraudulent means. The base penalty in the caput (the opening provision of the article) is one to five years of reclusão (the more serious form of prison sentence) plus a fine. It is an intentional property crime that requires four elements at once: fraud, the victim’s error, an unlawful advantage, and harm to another person.

Unlike theft, estelionato presupposes that the victim knowingly hands over the property, though that consent is tainted by deception. Legal scholars hold that the core of the offense is the deceptive conduct, used as a tool to bring about an improper transfer of assets. Without a link between the ruse and the error that leads the victim to hand over the property, the offense does not hold, and the conduct may fall under a different criminal provision.

Case law establishes that an attempt is punishable when the scheme has been set in motion but the result is not achieved for reasons beyond the offender’s control. The offense is complete the moment the unlawful advantage is obtained, even if only temporarily.

Equivalent Forms Under Paragraph 2

Paragraph 2 of article 171 lists equivalent forms of the offense, all subject to the same penalty as the caput. They include selling or disposing of another person’s property as your own, fraudulently selling or encumbering your own property, defrauding a pledge, fraud in the delivery of goods, fraud to collect insurance proceeds or compensation, and fraud in payment by check.

Each item addresses a specific kind of financial deception, reflecting different commercial and contractual realities. Fraud in payment by check, for example, requires proof that the offender knew there were no funds in the account when the check was issued. Otherwise, the conduct is treated as a civil wrong. Insurance fraud, in turn, requires proof that the loss was artificially created or that the damage was faked.

Taken together, these provisions show a consistent design: the legislator sought to cover the variants of property fraud under an equivalent maximum penalty, reserving increases for specific aggravating circumstances, such as offenses against a public entity, a popular savings institution, or vulnerable victims.

Without a link between the ruse and the error that leads the victim to hand over the property, the offense does not hold, and the conduct may fall under a different criminal provision.

Electronic Fraud and Sentencing Enhancements After Law 14.155/2021

Law 14.155, enacted in May 2021, changed the penalties for estelionato by adding paragraph 2-A to article 171. The new provision criminalizes electronic fraud committed using information provided by the victim, or by a third party misled through social media, phone contact, fraudulent e-mail, or similar means. The penalty is now four to eight years of reclusão, plus a fine.

Paragraph 2-B provides for an increase of one-third to two-thirds when the crime is committed using a server located outside Brazil, reflecting concern over the cross-border nature of digital scams. Paragraph 4 raises the penalty by one-third up to double when the crime is committed against an elderly or vulnerable person, in line with the enhanced protection Brazilian law gives these groups.

Another significant change came from the Anti-Crime Package (Pacote Anticrime), which made ordinary estelionato a public criminal action that depends on the victim’s formal complaint (representação). The exceptions are cases where the victim is the public administration, a child, an adolescent, a person with a mental disability, or a person over seventy. This change altered procedural strategy, because criminal prosecution of the ordinary forms now requires the victim’s express request to begin.

Frequently Asked Questions

What is the difference between estelionato and theft by fraud?

In estelionato, the victim voluntarily hands over the property after being deceived, with a will distorted by the offender’s ruse. In theft by fraud, the deception only lowers the victim’s guard, but the property is taken without the victim’s consent. The distinction is central because it determines which offense applies and, as a result, the penalty and the procedural rules.

Who can be charged with the electronic estelionato created by Law 14.155/2021?

Anyone who obtains an unlawful advantage through fraud committed by electronic means, social media, fake messages, or e-mails that mislead the victim can be charged. The reclusão penalty ranges from four to eight years. It can be increased further if the server used is outside Brazil or if the victim is elderly, in which case the increase can reach double the penalty.

How does the victim’s complaint requirement work after the Anti-Crime Package?

Since Law 13.964 of 2019, ordinary estelionato depends on the victim’s complaint before the Public Prosecutor’s Office (Ministério Público) can file a criminal action. If the victim does not make that complaint within the six-month forfeiture period, counted from the date the victim learns who committed the offense, the right to prosecute is extinguished. Only cases where the victim is the public administration, a child, an adolescent, a person with a mental disability, or an elderly person over seventy remain unconditional public actions.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.