Embezzlement of Public Funds: Defence Lawyers (Art. 432 CP)

Embezzlement of public funds (Arts. 432-435 CP) is one of the most serious offences against the Public Administration because it protects a dual legal interest: the public patrimony and citizens' trust in the integrity of public management. After the reform under Organic Law 14/2022, the offence clearly distinguishes appropriation with intent to personal profit (Art. 432 CP, 2 to 6 years' prison and 6 to 10 years' special disqualification) from mere temporary private use or application of funds with restitution (Art. 432 bis CP, mitigated penalty). Supreme Court case-law has refined the typical elements: status as public official, possession or availability of funds by reason of office, conduct of patrimonial disposition, and intent of profit or private application.

Forms of Embezzlement

The modalities are multiple and of increasing sophistication. Direct subtraction of funds (transfers to personal accounts, cash withdrawal) is the classic conduct. Accounting embezzlement through manipulation of items, fictitious expenses or inflated invoices requires technical public-audit knowledge. Irregular contracting with overcost or awards to related companies generates concealed patrimonial damage. Embezzlement by omission (Art. 432.1 CP) punishes the official who consents to a third party appropriating the public property in their charge; it requires intent, because the Code does not punish negligent embezzlement. Application to different purposes of subsidies, European funds or earmarked budget items is a heavily prosecuted modality. And systematic private uses of public goods —official vehicles, corporate credit cards, trips— can cross the criminal threshold when their magnitude and recurrence are significant.

Penalties (Arts. 432-435 CP)

The penalties reflect the gravity of the offence. Basic embezzlement with intent of profit (Art. 432.1 CP) carries 2 to 6 years' prison and 6 to 10 years' special disqualification from public office and from standing for election. The aggravated form (Art. 432.2 CP) raises the penalty to 4 to 8 years' prison and 10 to 20 years' absolute disqualification where serious harm or disruption is caused to the public service, where the loss or the property appropriated exceeds €50,000, or where what was embezzled has artistic, historical, cultural or scientific value or was earmarked to relieve a public calamity; above €250,000 that prison term is imposed in its upper half, and may be raised by one degree. Temporary private use (Art. 432 bis CP) is punished with 6 months' to 3 years' imprisonment and suspension from public office for 1 to 4 years; if the diverted assets are not returned within 10 days of the proceedings being opened, the penalties of Art. 432 CP apply. Disqualification is a principal penalty and entails loss of office; separate from the criminal conviction there is accounting liability before the Court of Auditors, which is autonomous from criminal liability and requires full restitution of embezzled funds plus statutory interest.

Defence Strategy

Technical defence in embezzlement is articulated on four axes. First, official status and typical availability: the active subject must be an authority or official with effective disposition over the funds by reason of office; mere administrative processing without patrimonial disposition capacity excludes authorship. Second, the dogmatic distinction between embezzlement and other offences: correct qualification as embezzlement, unfair administration (Art. 252 CP), fraud (Art. 436 CP), administrative misconduct in office or bribery determines radically different penalties and requires fine dogmatic analysis. Third, effective patrimonial damage: not every accounting irregularity causes typical damage; intent of personal profit or private application must be proven with direct evidence or solid indicia. Fourth, restitution and mitigating circumstances: full and effective repayment of the loss before the trial opens requires the penalty to be lowered by one or two degrees (Art. 434 CP), and partial repayment may count as a mitigating factor (Art. 21.5 CP); it is decisive to avoid imprisonment.

Current Forensic Practice

In current forensic practice we detect an intensification of embezzlement proceedings stemming from three focuses: the reinforced control of Next Generation EU funds, the Court of Auditors' investigations on regional and local subsidies, and the proceedings opened by the Anti-Corruption Prosecutor on public procurement with overcosts or directed awards. Organic Law 14/2022 transposing European directives and Organic Law 1/2025 on Justice Service Efficiency have modified both the criminal type and the procedural tools for patrimonial securitization. At Alonso Sala, our criminal lawyers in embezzlement work with public accounting experts, auditors and administrative law specialists to build technical defences that challenge typical qualification, demonstrate the absence of damage or the effective public destination of funds, and articulate restitution strategies that mitigate or avoid imprisonment. Defence requires knowledge not only of the Criminal Code but also the Public Sector Contracts Act, the General Subsidies Act, the Court of Auditors Organic Law, and regional and local budget management regulations.