Misappropriation (Apropiación Indebida) Lawyer in Marbella

1. Elements of the offense (art. 253 CP)

Article 253 of the Criminal Code punishes anyone who, to another's detriment, appropriates for themselves or for a third party money, effects, securities or any other movable property received on deposit, commission or custody, or entrusted to them under any other title creating an obligation to deliver or return it, as well as anyone who denies having received it. Case law has precisely established the elements the offense requires:

"...que el autor ejecute un acto de disposición... que resulta ilegítimo en cuanto que excede de las facultades conferidas por el título de recepción."

(This ruling requires that the perpetrator carry out an act of disposal that is unlawful because it exceeds the powers conferred by the title under which the property was received.) From this doctrine we systematically work with three elements in every defense: the existence of a title of receipt generating an obligation to deliver or return the property — deposit, commission, administration or a similar arrangement —; an act of disposal exceeding the powers conferred by that title and giving the property a final destination other than the one agreed; and actual pecuniary harm resulting from that excess, without which the offense cannot be sustained.

2. The boundary with fraud and with disloyal management

The correct legal classification of the facts is, in practically all of the proceedings we handle, the first battleground. As against fraud under article 248 of the Criminal Code, case law declares the two offenses to be of a different nature: while fraud is based on the deception that induces the initial handover of the property, misappropriation starts from an initial lawful possession, obtained without deception, which only becomes criminal when the possessor decides to incorporate the property into their own estate or give it a destination other than the one agreed. As against disloyal management under article 252 of the Criminal Code, the distinguishing criterion lies in whether the pecuniary loss is final or not: misappropriation requires the irreversible expropriation of specific assets, while disloyal management punishes the abuse of management powers without requiring an irrecoverable loss. Determining which offense the facts fit — a matter that directly affects the applicable penalty and, at times, whether the offense can be prosecuted at all — requires a documentary and accounting analysis that we undertake from the very first appearance.

3. Diversion of money: the "point of no return" doctrine

When the object of the misappropriation is money or another fungible item, case law requires an additional element to distinguish the criminal offense from mere breach of contract or delay in rendering accounts, both of which fall outside criminal law:

"...se ha alcanzado un momento en que se aprecie una voluntad definitiva de no entregarlo o devolverlo o la imposibilidad de entrega o devolución."

(This ruling requires that a point be reached at which a definitive intent not to deliver or return the property is apparent, or the impossibility of delivering or returning it.) This doctrine, known as the "point of no return," is one of our most effective defense tools against premature accusations: as long as a real possibility of repayment persists, or as long as the delay is due to liquidity difficulties or a dispute over the rendering of accounts, the definitive intent to misappropriate required by the offense cannot be established. Proving a willingness to return the property, the existence of payment negotiations, or the absence of any concealment of assets is therefore decisive at the pre-trial investigation stage.

4. The residual offense under art. 254 CP

Article 254 of the Criminal Code operates as a catch-all provision for cases of misappropriation of another's movable property that do not fit within article 253 of the Criminal Code because they lack the prior relationship of trust that article requires: the appropriation of lost property or property of unknown ownership, and the improper receipt of property by the transferor's error when, having become aware of the error, the recipient fails to return it. This is a stand-alone offense, closer to theft of found property than to classic misappropriation, whose penalty — noticeably lower — and whose conditions of application must be carefully distinguished, since the prosecution sometimes charges under article 253 of the Criminal Code in cases where, properly understood, the facts only support the residual offense under article 254 of the Criminal Code.

5. The aggravated offense (art. 250 CP by cross-reference)

For sentencing purposes, article 253 of the Criminal Code refers to articles 248 and 250 of the Criminal Code, so that misappropriation is aggravated — with a prison sentence of one to six years — when any of the circumstances of the offense of fraud that are, by their nature, applicable to this offense are present: abuse of the personal relationship existing with the victim, particular seriousness in view of the value defrauded or the number of victims, or an appropriated value exceeding fifty thousand euros. The simultaneous concurrence of the first circumstance — personal relationships — with any of the fourth, fifth, sixth or seventh circumstances, or a value exceeding two hundred fifty thousand euros, triggers the hyper-aggravation under article 250.2 of the Criminal Code, with sentences of up to eight years' imprisonment. Correct expert evidence of the value appropriated and of the actual harm caused is therefore decisive for the applicable sentencing range.