Economic crime
In short
Article 253 of the Criminal Code punishes anyone who, to another’s detriment, appropriates for themselves or a third party money, effects, securities or any other movable property that they had received on deposit, on commission or for safekeeping, or under any arrangement obliging them to hand it over or return it. It also punishes anyone who denies having received it. This offence is known as misappropriation (apropiación indebida).
The idea is simple: someone lawfully receives something, with the obligation to return it or use it for a specific purpose, and instead keeps it or diverts it. Unlike fraud, there is no initial deception: the trust is broken later.
There is also a lesser offence, the appropriation of someone else’s movable property outside those situations (article 254), such as keeping something you have found: it is punishable by a fine of three to six months, or one to two months if the value does not exceed €400.
The dividing line with a simple breach of contract is the central issue in almost every case. An unpaid debt is not an offence. What turns the act into misappropriation is that the money or item had an agreed purpose and was permanently put to a different use, or that receipt of it is denied.
Between spouses who are not separated, parents, children and siblings (and in-laws of the first degree if they live together), these acts only give rise to civil liability, provided there is no violence, intimidation or abuse of the victim’s vulnerability due to age or disability (article 268). The exception does not extend to third parties who take part.
| Situation | Penalty | Article |
|---|---|---|
| Basic misappropriation | Prison from 6 months to 3 years | 253 and 248 |
| Amount appropriated not exceeding €400 | Fine of 1 to 3 months | 253.2 |
| With an aggravating factor (more than €50,000, abuse of personal relationships or professional credibility, particular seriousness…) | Prison from 1 to 6 years and a fine of 6 to 12 months | 253 and 250.1 |
| More than €250,000 or combined aggravating factors | Prison from 4 to 8 years and a fine of 12 to 24 months | 253 and 250.2 |
| Appropriation of someone else’s movable property (lost property, etc.) | Fine of 3 to 6 months | 254 |
The aggravating factor of abuse of personal relationships or professional credibility (article 250.1.6) often arises in this offence, because there is almost always a prior relationship of trust. Whether it applies is argued case by case.
The competent court depends on the penalty. If the prosecution seeks the aggravated form under article 250, whose maximum penalty exceeds five years in prison, the trial is heard by the Provincial Court (Audiencia Provincial); in other cases, by the Criminal Section of the Court of First Instance, formerly the criminal court (article 14 of the Criminal Procedure Act, Ley de Enjuiciamiento Criminal). The preliminary investigation is always conducted before the Investigation Section where the events took place. If the misappropriation was committed by an employee or manager for the company’s benefit, the company itself may not be criminally liable for this offence, but it may be civilly liable for the damage; we examine this in each case.
A conviction for misappropriation creates a criminal record. If the sentence does not exceed two years, it is your first offence and you satisfy the civil liability or undertake to do so within your means, the judge can suspend it (article 80). In this offence the civil liability is usually high, so it should be addressed from the outset. Basic misappropriation becomes time-barred after five years and the aggravated form after ten (article 131).
Gather the contract, receipts, messages in which receipt is acknowledged and any demand for repayment. A demand with proof of delivery, for example a burofax (certified letter), helps to prove the refusal to return the money. As a private prosecutor we can file a criminal complaint, request the seizure of assets to secure repayment and claim damages within the criminal proceedings themselves.
Every case is different; after studying yours, we will give you a personalised written quote.
In fraud, the deception comes first and causes the victim to hand over the money. In misappropriation, the money is received lawfully, with an obligation to return it or use it for a specific purpose, and it is later diverted or receipt of it is denied. Both carry the same penalties under the Spanish Criminal Code.
Normally not. With a loan, the money becomes the property of the borrower and the obligation is to repay an equivalent amount; if it is not repaid, it is a civil debt. There is misappropriation when the money had a specific agreed purpose, for example a deposit or an assignment, and was put to another use.
The same as for fraud: six months to three years in prison, or a fine of one to three months if the amount does not exceed €400. If there is an aggravating factor, such as exceeding €50,000 or abusing trust, the penalty is one to six years in prison and a fine (articles 253, 248 and 250 of the Criminal Code).
Between siblings who live together, and in general between ascendants, descendants and siblings, property offences without violence or abuse of vulnerability only give rise to civil liability (article 268). You can bring a claim through the civil courts. We study your case to see whether it fits or whether there is another route.
The basic offence becomes time-barred after five years and the aggravated offence after ten, normally counted from when the appropriation takes place (article 131 of the Criminal Code). It is not advisable to wait: over time evidence is lost and money is moved.
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