Estelionato (Fraud): What Makes It a Crime and How to Protect Yourself

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 (fraud) means obtaining an unlawful advantage through deception. It carries a prison sentence of 1 to 5 years, increased to 4 to 8 years when committed by digital means.

What Is Estelionato?

Estelionato (fraud) is defined in Article 171 of the Brazilian Penal Code. It occurs when someone obtains an unlawful advantage, for themselves or for another person, at someone else’s expense, by inducing or maintaining a person in error through a trick, a scheme, or any other fraudulent means. The penalty is imprisonment (reclusão, the more serious form of prison sentence) of 1 to 5 years, plus a fine.

For the crime to exist, four elements must be present at the same time: the use of fraudulent means (deception), the inducing or maintaining of the victim in error, the offender’s gain of an unlawful advantage, and a financial loss to the victim. If any one of these elements is missing, the conduct may no longer qualify as the crime.

Electronic Fraud and Digital Scams

Electronic fraud (fraud committed by digital means) carries a harsher penalty: imprisonment of 4 to 8 years plus a fine (Article 171, §2º-A, added by Law 14.155/2021). This category covers scams carried out through messaging apps, social media, fake websites, and fraudulent e-mails. The penalty is higher still when the crime is committed using a server located outside Brazil or when the victim is an elderly or vulnerable person.

The most common scams involve fake bank payment slips (boletos), cloned social media profiles, phishing (fake pages that imitate legitimate websites), Pix scams that promise to multiply your money, and fake intermediaries in online buying and selling.

If any one of these elements is missing, the conduct may no longer qualify as the crime.

How to Protect Yourself from Scams

Be suspicious of offers that seem too good to be true. Check that payment slips and links are authentic before you click. Never share passwords or banking details by phone or message. Confirm the identity of anyone who asks you to transfer money, especially through Pix. And keep antivirus software up to date on your devices.

If you fall victim to a scam, your first step is to file a police report (Boletim de Ocorrência) right away and notify your bank so it can try to block the transaction. In Pix fraud cases, the Special Refund Mechanism (Mecanismo Especial de Devolução, or MED) allows funds to be recovered when fraud is proven, as long as the request is made quickly. Keep all evidence, such as screenshots, transfer receipts, and conversations with the scammer.

Legal Procedures for the Victim

Since 2020, estelionato has generally been a crime that is prosecuted only if the victim files a formal complaint (representação). This means the victim must file the complaint at the police station for the investigation to move forward. The exception is when the victim is the public administration or an elderly or vulnerable person. In those cases, prosecution does not depend on the victim’s complaint.

In addition to the criminal process, the victim can seek compensation in civil court by filing a lawsuit for property damages (to recover the money lost) and for moral damages (for the distress and disruption suffered). The statute of limitations for the civil action is 3 years, counted from the date of the event.

Social Security Fraud

A specific type of this crime is social security fraud (Article 171, §3º, of the Penal Code). It occurs when someone obtains a benefit from the INSS (Brazil’s National Social Security Institute) through deception, such as submitting forged documents or false statements. The penalty is imprisonment of 1 to 5 years plus a fine. The offense can involve the beneficiary as well as intermediaries and public employees. The INSS runs permanent anti-fraud programs, with periodic audits and data cross-checks to identify irregularities.

How Estelionato Differs from Other Property Fraud Crimes

Estelionato holds a central place among crimes against property committed without violence or serious threat. Identifying it correctly, however, requires telling it apart from similar offenses. Theft by fraud, defined in Article 155, paragraph four, item II, of the Penal Code, differs from estelionato because the deception serves only to lower the victim’s guard, while the taking of the property remains the core of the offense. In estelionato, by contrast, the victim voluntarily hands over the property after being misled by the offender. This distinction has significant practical consequences for how the offense is classified and how the sentence is calculated.

Misappropriation (apropriação indébita), defined in Article 168 of the Penal Code, also differs from estelionato in the moment when criminal intent arises. In misappropriation, the offender lawfully receives the property and only later decides to keep it. In estelionato, the fraud comes before the gain and is the means used to deceive. Classifying the offense correctly affects both the procedural rules and which court has jurisdiction, especially in cases involving public funds or social security.

The Superior Court of Justice (STJ) has established several important positions on how this offense applies. Súmula 24 (a summary statement of the court’s settled case law) provides that the sentence enhancement in paragraph three of Article 171 applies to estelionato committed against a public-law entity. Case law has also settled the question of territorial jurisdiction in online fraud cases, which is generally the place where the victim actually suffered the financial loss.

Frequently Asked Questions

What is the difference between ordinary fraud and electronic fraud?

Ordinary estelionato (Article 171 of the Penal Code) carries imprisonment of 1 to 5 years plus a fine. Electronic fraud, added by Law 14.155/2021, is committed through electronic devices or computer systems and carries a harsher penalty of 4 to 8 years of imprisonment plus a fine. The penalty increases by one-third to two-thirds if the server used is located outside the country or if the victim is elderly.

Can a fraud victim recover the money they lost?

Yes. The victim can seek to recover the money in civil court by filing a lawsuit for property damages against the offender. In Pix fraud cases, the Central Bank of Brazil’s Special Refund Mechanism (MED) allows you to request a refund from the scammer’s bank, as long as the request is made quickly. In the criminal case, the judge may order the harm to be repaid as part of the conviction.

What is the deadline for a fraud victim to file a criminal complaint?

The victim has 6 months, counted from the date they learn who committed the crime, to file the complaint (representação) at the police station. After that deadline, the right to prosecute expires. For this reason, it is essential to file the police report as soon as possible after discovering the scam and to formally file the criminal complaint.

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