Criminal Lawyers in Misappropriation

Misappropriation: Concept, Modalities and Penalties (Arts. 253-254 CP)

The offence of misappropriation typified in Art. 253 CP is one of the central figures of patrimonial and economic Criminal Law. It punishes whoever, to another's detriment, appropriates for themselves or for a third party money, effects, securities or any other movable thing received in deposit, commission or custody, or entrusted under any other title producing the obligation to deliver or return them, or denying having received them. The protected legal interest is the title-holder's patrimony in its dynamic dimension: trust placed in whoever receives the thing with obligation to return. Supreme Court case-law has clarified that the offence demands four elements: legitimate receipt of the thing, title obliging return, act of appropriation or distraction and intent of definitive incorporation into one's own patrimony (animus rem sibi habendi).

The methods of commission are two. Strict appropriation consists of definitively keeping the received thing, incorporating it into one's own patrimony without legal justification; this is the classic modality of the depositary who does not return, the commission agent who retains the goods or the mandatary who does not deliver what was collected. Fund distraction, the modality proper to money, does not require incorporation into personal patrimony but merely the diversion of funds to a destination different from that agreed in the receipt title, with effective damage to the holder. Denial of receipt is an evidentiary modality assimilated to appropriation when prior delivery is documented. The reform operated by Organic Law 1/2015 separated unfair administration of Art. 252 CP from misappropriation of Art. 253, maintaining parallel penalties but dogmatically differentiating mere distraction (appropriation) from disloyal management of another's patrimony (unfair administration).

The penalties are graduated and significant. The basic offence of Art. 253.1 CP carries 6 months to 3 years' prison when the appropriated value exceeds 400 euros; lower-value cases are sanctioned as minor offence with 1 to 3 months' fine (Art. 253.2). The aggravated types of Art. 250 CP (applicable by referral from Art. 253) raise the penalty to 1 to 6 years' prison and 6 to 12 months' fine when an aggravating circumstance concurs: amount exceeding 50,000 euros, falling on essential goods or housing, abuse of personal relations or business/professional credibility, special seriousness due to value or victim's economic situation, or recidivism. If the amount exceeds 250,000 euros, the penalty rises to 4 to 8 years' prison. To the penalties are added accessory consequences: special disqualification when professional abuse concurs (administrators, lawyers, managers), criminal record with effects on public employment and regulated professions, and civil liability ex delicto for the full damage caused.

The technical defense in misappropriation rests on four axes consolidated by case-law. First, absence of animus rem sibi habendi: the Supreme Court demands proof of will of definitive incorporation into one's own patrimony; temporary retentions due to disagreement on settlement of accounts, distractions for eventual use without intent of appropriation, or dispositions authorised by pre-existing contractual relations exclude typical intent. Second, supervening insolvency as exclusionary: economic impossibility of return for reasons beyond the receiver's will (business bankruptcy, judicial decisions, supervening seizures) rules out misappropriation and redirects the case to civil debt claim. Third, controversy on the title: when civil litigation is pending on the nature of the receipt title (loan, deposit, donation, sale with term) the criminal forum must yield to the civil one until resolution of the preliminary question. Fourth, the damage-repair mitigator of Art. 21.5 CP: judicial consignment or full return before trial substantially reduces the penalty and favours suspension of execution.

In current forensic practice, misappropriation proceedings concentrate on typical scenarios: property administrators retaining homeowners' community funds, lawyers not returning client provisions or compensations collected, commercial commission agents diverting amounts collected from third parties, heirs concealing estate goods, partners disposing of corporate funds outside the bylaws, and, increasingly, cases linked to crypto-assets held by third parties. Organic Law 1/2025 on Justice Service Efficiency and consolidated Supreme Court case-law on circumstantial evidence have raised the standards for proving intent of definitive incorporation. At Alonso Sala, with 15+ years' experience, we approach each case with a triple strategy: technical analysis of the receipt title and chronology of events, articulation of accounting expert reports to prove the actual destination of funds, and strategic assessment of the opportunity for reparative consignment; we defend both accused professionals and administrators and legitimate victims requiring personation as private prosecution to recover what was appropriated.