A case of alleged fraud in the mileage of a used vehicle, sold by a stand in Braga, was filed by the Court of Instruction of Braga. A controversial decision: the plaintiff’s lawyer, João Magalhães says that it is a “dangerous” decision, since, if it becomes jurisprudence, all car salespeople will be able to change the kilometers of the cars, without being penalized. “The stands are already rubbing happy hands. They can deceive customers that this is not a crime ”, he laments.
Judge João Ferreira Araújo, who defended the stand, told O MINHO that “the Court could not have decided otherwise, since it was not proved who falsified the accountant, nor that there was any quantifiable fraud, as the law determines” .
The vehicle, a Renault Megane, was purchased in May 2018 for 10,300 euros and, a few months later, in November, on the return of a trip to Bragança the engine broke. When it was acquired, the stand assumed that the car was 200 thousand kilometers long, but the buyer thinks it had a lot more. The repair cost 17 thousand euros, according to the invoice in the process, and the seller did not want to bear the cost.
The complaint had been filed by the Public Prosecutor’s Office of Braga, but lawyer Maria Sequeira, from João Magalhães’s office, asked for instructions on the process, and the judgment of the stand and its owner.
Imported
In the instruction request, the jurist stated that the vehicle, in November 2015, had 187 thousand kilometers. It was imported from Germany by a firm in Matosinhos and, in the legalization process, in May 2016, it indicated 166 thousand kilometers.
The lawyer says that the stand “had perfect knowledge of such factuality and as such, acted to avoid the responsibilities that could arise, in an attempt to deceive and circumvent the buyer, which came to be achieved”.
“It is easy to assume the existence of a situation of falsifying the mileage of such a vehicle”, he argued, asking that they be accused of the crimes of falsification of technical notation and fraud.
In the case of fraud, the lawyer argues that the sale process involved two companies from the same owner, and that the one that passed the bill went into insolvency precisely to avoid assuming responsibilities.
Judge says it’s not a crime
These two theses were not collected by the judge, who, at the end of the instructional debate, concluded that “since the defendants did not intervene in the legalization process in Portugal, they cannot be held responsible for this conduct, as the order for filing the MP ”.
“It has been considered by the jurisprudence that such conduct does not integrate the practice of the crime of falsification of technical notation as the assistant intends”, writes the magistrate, stressing that, “in the present case and in the case of a motor vehicle, a legally relevant fact would be the identification elements of the same, such as registration numbers, bodywork and engine, elements that although coming from private entities, have by law a probative force equivalent to that of public documents ”.
And continuing, he says: “the main objective that presided over the creation of this legal type of crime (falsification of technical notation), in addition to protecting data that is totally or partially processed automatically by devices, was also security and credibility in the legal-evidential trafficking ”.
In other words, falsifying license plate, engine or chassis numbers is a practice that configures that crime, while falsifying the number of kilometers is not.
Regarding the existence of fraud, he says that “the crime is in the deception astutely caused by the agent, with the intention of obtaining illegitimate enrichment, that is, the crime is in the“ fraud ”, as a means of obtaining an economic profit and causing the corresponding loss, deceiving the victim. The problem is that in this case, neither the assistant’s loss is objectively demonstrated, nor quantified (or the illegitimate profit of the defendants ascertained) ”.
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