Accused of Misappropriation in Spain: What to Do
In this article
Key Takeaways
- Do not testify without a lawyer; gather the documents justifying possession
- Initial possession was lawful; the offence arises on the failure to return
- A debt or a delay is a civil matter, not misappropriation
- It is distinguished from theft (234) and fraud (248)
If reported for misappropriation, do not testify without a lawyer; gather documents justifying why you hold or kept what is claimed. Art. 253 CP punishes appropriating money or property received in deposit, on commission or in trust, when possession was lawful at first and you definitively refuse to return it. A simple debt or delay is a civil matter, not a crime.
Need help with your case? Talk to a criminal defence lawyer at Alonso Sala.
Being reported for misappropriation often arises from money received for a purpose, an inheritance, an employment relationship or an assignment that went wrong. This guide is written from the perspective of the person accused: what to do in the first hours, when keeping something is genuinely a crime, and how the defence is built. To understand the offence in detail, see also our guide to Art. 253 CP.
You Have Been Reported: What to Do First
The first steps shape everything that follows:
- Do not testify without a lawyer. You have the right not to testify; explaining the fate of the money from memory can be used against you.
- Gather the documentation: contracts, instructions, emails, receipts and accounts explaining why you hold or kept what is being claimed.
- Reconstruct where the assets or money went: what was used, what was handed over and what remains outstanding.
- Do not contact the person who reported you to "settle the matter" without advice.
When keeping something is misappropriation
Misappropriation (Art. 253 CP) punishes anyone who, to another's detriment, appropriates money, securities or any movable property received in deposit, on commission or in trust, or under another duty to hand it over or return it. Initial possession was lawful: the offence arises afterwards, when the holder incorporates the property into their own assets or definitively and unjustifiably refuses to return it. Owing money or being late is not enough.
Misappropriation, civil debt, theft and fraud
The line with civil law is at the heart of the defence:
- Against a civil debt: a simple non-payment or a disagreement over what was agreed is not a crime; it requires appropriating another's property that had to be returned.
- Against theft (Art. 234 CP): here the handover was voluntary and lawful, the property was not taken covertly.
- Against fraud (Art. 248 CP): there was no prior deceit that caused the handover; the problem arises afterwards, on the failure to return it.
Your first statement
In your statement as a person under investigation, you will be informed of the facts and of your rights. You may testify, answer only through your lawyer, or remain silent. In some cases it is useful to submit from the outset the document justifying possession and the fate of the property; in others, it is better to wait to see the prosecution's documentary evidence. It is a strategic decision to be taken with your defence.
How a dismissal is achieved
When there is a document justifying possession, when the intent to appropriate is missing, or when the matter is really a civil dispute over accounts or breaches, the proceedings can be dismissed, and an acquittal is possible at trial. An early defence that redirects the matter to its true nature is the best route to that outcome. Our firm handles criminal defence against misappropriation reports.
Have you been reported for misappropriation?
Before you testify, tell us what you received and why. We review the documents, the accounts and the evidence to prepare your defence. Contact our misappropriation lawyer.
Frequently asked questions
What should I do as soon as I learn of the report?
Do not testify without a lawyer, and gather all the documentation of the relationship: contracts, instructions, emails, proof of delivery, accounts and any evidence of why you hold or kept what is being claimed and what you did with it. Misappropriation is decided by the documents and by the explanation of what became of the property; organising them as soon as possible is essential.
When does keeping something or not returning it amount to misappropriation?
When you lawfully received the money or property — in deposit, on commission, under administration or with a duty to return it — and afterwards appropriate it or definitively refuse to hand it back, incorporating it into your own assets. Owing money or being late is not enough: there must be an act of appropriation, or an unjustified and conclusive refusal to return it, causing harm to the owner.
How is it different from a civil debt, theft or fraud?
Unlike a civil debt, misappropriation requires appropriating another's property received under a duty to return it, not a mere non-payment. Unlike theft (Art. 234 CP), here the initial possession was lawful and consented to, not taken covertly. Unlike fraud (Art. 248 CP), there was no prior deceit that caused the handover: the handover was voluntary, and the offence arises afterwards, on the failure to return it.
What penalties does misappropriation carry?
Art. 253 CP punishes it with the penalties for fraud: imprisonment of six months to three years when the amount exceeds 400 euros, or a fine when it does not. Under the aggravated circumstances of Art. 250 CP, the penalty can reach six years. The classification depends on the amount appropriated and the circumstances of the case.
Does returning what is claimed lead to a dismissal?
It does not dismiss the case automatically, but restitution or repairing the harm before trial can operate as a mitigating circumstance (Art. 21.5 CP) and, above all, reinforce the argument that there was never any intention to appropriate. Each step should be weighed with your defence: returning something without a strategy, or in a way that admits facts that are really a civil dispute, can be harmful. The decision must be taken on legal grounds.
Do you need criminal defence in this area?
We are criminal defence lawyers specialising in misappropriation. We act urgently to protect your rights.
This page is for information purposes only and does not constitute legal advice: every case requires individual assessment. How this content is produced and verified: editorial policy.