Criminal Lawyers in Undue Retention

It almost always starts with a formal demand: the finance company, the lessor or the depositor asks in writing for the asset or the money back. If nothing is returned, that letter becomes a complaint and the court opens preliminary proceedings. What you receive first is a summons to give a statement as a suspect, not a conviction: at that point the case is still at the investigation stage and the charge is not settled.

The line between a civil breach and an offence under Art. 253 CP lies in the intent to appropriate, and that is where the case is decided: someone who received the asset under a title requiring its return may simply be in default, in a contractual dispute or unable to return it, and none of that is yet criminal law.

Do: gather the contract and its annexes, the payment receipts, the emails and messages with the other party and any evidence that you offered to return the asset or that returning it was not within your control. Restitution or a payment into court before trial opens up the mitigating factor of making good the harm (Art. 21.5 CP) and, in many cases, the route to a settlement.

Do not: reply to the demand with a general acknowledgement of debt drafted by the other side, give a statement without having read the file, or keep using the asset being claimed while the case is open. Attending the summons is compulsory; giving a statement is not: Art. 520 LECrim protects your right to remain silent and to consult a lawyer of your own choosing beforehand.

Misappropriation in its retention modality (keeping something received) is the most common crime in the field of financial leases (leasing/renting) and deposits. The user receives the car or machine legally, but at some point, ceases to have a title to possess it (end of contract, non-payment) and refuses to return it.

The criminal key is the moment when possession transforms. Mere delay in return (which is civil) is not enough. An act demonstrating definitive appropriation will is required: hiding the asset, trying to sell it, or a flat and unjustified refusal to delivery requests.

Misappropriation: Offence and Elements (Art. 253 CP)

Undue retention is a manifestation of misappropriation under Art. 253 CP, which punishes whoever, to another's detriment, appropriates for themselves or a third party money, effects, securities or any movable thing received in deposit, commission or custody, or by any other title producing an obligation to deliver or return it, or denies having received it. The core element is the interversion of the possessory title: the subject, who possessed lawfully, transforms that lawful possession into an act of disposal or definitive refusal as if they were the owner. It is an intentional offence requiring the intent to incorporate the thing into one's own patrimony.

Penalties (Arts. 248 and 250 CP)

The penalties refer to those of fraud. Under Art. 253 CP, misappropriation is punished with the penalties of Art. 248 CP —6 months to 3 years' prison when the amount exceeds 400 euros— or, where appropriate, those of Art. 250 CP —1 to 6 years' prison and fine— when aggravations concur such as the amount exceeding 50,000 euros, falling on basic-necessity goods or goods of artistic, historical or cultural value, or abuse of personal relationships. If the value of what is appropriated does not exceed 400 euros, the facts constitute a minor offence sanctioned with a fine of 1 to 3 months (Art. 253.2 CP).

Boundary with Theft, Unfair Administration and Civil Wrong

It is worth delimiting the figure. Unlike theft (Art. 234 CP), where the author appropriates a thing they did not possess, in misappropriation the thing had been received lawfully. As opposed to unfair administration under Art. 252 CP —which sanctions whoever, having powers to administer another's patrimony, exceeds them causing damage—, misappropriation falls on specific things received with an obligation to return. And, above all, it must be distinguished from the mere civil breach: simple delay in return, fortuitous loss or the exercise of the right of retention (Art. 1780 Civil Code) for non-payment of a service do not amount to an offence as long as there is no act of definitive appropriation.