Economic Criminal Law Attorneys in Marbella

Disloyal Management as the Core of Economic Criminal Law (Art. 252 CP)

Since the reform introduced by Organic Law 1/2015, the offence of disloyal management left its former place among corporate offences to become a standalone offence against property, applicable to any relationship in which assets belonging to another have been entrusted to a third party by law, by decision of the authorities, or by legal transaction. It penalizes anyone who, holding powers of administration, breaches them by exceeding their scope and thereby causes harm to the assets under management, without it being necessary for the administrator to personally profit or for a definitive appropriation of the assets to take place.

Case law has, with increasing precision, refined the boundary between this offence and misappropriation under Article 253 CP, a question on which the entire legal characterization of the proceedings frequently depends:

"...quien incorpora a su patrimonio... una cosa mueble que ha recibido con obligación de restituirla, comete un delito de apropiación indebida." (roughly: "...whoever incorporates into their own estate... a movable item received under an obligation to return it, commits the offence of misappropriation.")

According to this doctrine, the distinguishing criterion lies in whether the loss of assets is definitive or not: misappropriation requires the definitive expropriation of specific assets, whereas disloyal management penalizes the abuse of management powers without requiring an irreversible loss. Our defense systematically works this distinction — which is decisive for the applicable sentence — and challenges the actual existence of the harm to the assets, a requirement that recent case law demands be proven with increasing rigor, for which merely reckless or economically ill-advised management is not sufficient.

Corporate Criminal Liability and Criminal Compliance (Art. 31 bis CP)

Since the 2010 reform, confirmed and refined by that of 2015, legal entities may be held criminally liable for offences committed in their name and for their direct or indirect benefit by their directors or representatives, or by persons acting under their authority where there has been a serious breach of supervisory duties. The first judgment of the Plenary of the Supreme Court's Second Chamber on this matter set the core criterion that still underpins all corporate defense today:

"...la ausencia de una cultura de respeto al derecho... ha de manifestarse en alguna clase de formas concretas de vigilancia y control." (roughly: "...the absence of a culture of respect for the law... must be reflected in some specific form of oversight and control.")

Two consequences flow from this doctrine that guide our corporate defense strategy: a company's liability is not vicarious or automatic liability for the acts of its director, but its own liability grounded in an organizational failing, and it is for the prosecution to prove the absence of adequate control mechanisms, not for the company to prove its innocence. The existence of an effective criminal compliance program — risk identification, decision-making protocols, a supervisory body with autonomous powers, a whistleblowing channel, a disciplinary system, and periodic review — is, accordingly, every organization's primary preventive and defensive tool, and its genuine, verifiable implementation, as opposed to the mere formal existence of a document, is the factor that most often decides the outcome of the proceedings.

Comprehensive Review of the Accounting and Corporate File

There is no technical defense in this field without complete command of the case's corporate, accounting, and banking documentation, a task that requires personal review by the attorney before any strategy is set.

Defense Accounting and Financial Expert Evidence

We work with experts specializing in auditing and forensic accounting to reconstruct the actual traceability of the transactions under investigation and to dismantle the prosecution's assumptions from the outset of the case.

Coordination Across Criminal, Commercial, and Tax Proceedings

Most Economic Criminal Law proceedings involve a parallel track in the commercial, insolvency, or administrative sphere — classification of insolvency proceedings, tax audit proceedings, sanctioning proceedings — whose coordination is essential so as not to weaken the client's position on any front.

Anticipating Criminal Risk

We frequently step in before criminal proceedings are formally opened, during internal audits, inspections, or due diligence, to design the defense strategy and, where appropriate, put in place regularization or remediation measures that avoid or mitigate criminal liability.