Misappropriation, what is it and how to prove it?

The crime of misappropriation has its own characteristics. This is something we want to emphasise as, on many occasions, it tends to be confused with fraud, theft or robbery. It is advisable to consult a criminal lawyer to resolve all doubts and in any case here we focus on explaining in detail what it consists of.

What is the crime of misappropriation?

Misappropriation in the Criminal Code is typified in article 253. Specifically, it refers to the action by which someone takes possession of something that has been entrusted to them despite being obliged to return it. His action generally causes a financial loss to the rightful owner of the property.

There are many examples of misappropriation. For example, this would be the type of offence applicable in the case where a person rents a car for a certain number of days and, at the end of the term, refuses to return it. The action would also be punishable if, instead of refusing to return it to its owner, he claims that he never received it.
Generally, when we speak of misappropriation, we refer to movable property, cash, personal effects or patrimonial assets. These may have been received by the perpetrator in custody, deposit or commission.

To further clarify what this type of offence consists of, we will summarise the five elements that define it:

• The perpetrator obtains legitimate possession of the property (it will later become illegitimate, as we shall see).
• There must be an obligation to return the asset within a certain period of time.
• The person incorporates the property received subject to return into his own assets.
• This person does so for profit.
• There must be a detriment to the legitimate owner of the asset.

If one or more of them do not occur, we would not be dealing with a crime of misappropriation, but with another type of crime. Below we will look at those with which it is often confused.

How does misappropriation differ from theft, robbery and fraud?

We are going to devote this section to resolving one of the most common doubts among the general public when talking about this crime. Now that we have defined it, it is much simpler:

• Theft. It is similar to theft, which we will see below. However, in order for it to occur, force must be used. It does not matter if it is on the place where the property is located (a home or business premises) and/or on the person who has custody of it (the owner). In the latter case, violence is a special aggravating factor.
• Shoplifting. The crime of theft is committed when a subject takes someone else's property without their permission or will. There must be a profit motive. The difference with the offence we are analysing here is that at no time is the property given on loan with a deadline for repayment.
• Swindling. The key is that, in this case, it is necessary to trick the owner into giving the property. This is also not a requirement in the case of improper approval.

It is also common to confuse misappropriation and unfair administration. However, following the 2015 reform of the Criminal Code, it is much more complicated. The reason? While the former was classified as a crime against assets, the latter was classified as a corporate crime.

Penalties for misappropriation in the Criminal Code

The penalty for misappropriation is generally between 6 months and 3 years imprisonment. Everything will depend on how the judge assesses the damage caused to the rightful owner and the circumstances surrounding it. In this respect, the Penal Code establishes up to eight different aggravating factors. In case they are present, the penalties can be even higher. Let's take a look:

• Imprisonment of 4 to 8 years and a fine of 12 to 24 months. This is the range of penalties applicable if the offence involves essential goods, leaves the victim and/or the victim's family in a particularly serious financial situation or the value of the appropriation exceeds €50,000. The same is foreseen in case it is committed as a consequence of an abusive relationship between the perpetrator and the victim.
• Imprisonment of 1 to 6 years and a fine of 6 to 12 months. This is the penalty envisaged if one of the following aggravating factors is present: abuse of the signature of another person or of a public or official document; affecting artistic, cultural, scientific or historical property; the fourth or more conviction for the same offence.

On the other hand, if it is classified as a misdemeanour, the penalty is a fine of 1 to 3 months. Likewise, if the misappropriation occurs for a lost item or for a good received by mistake, the penalty is a fine of 3 to 6 months provided that the value does not exceed €400. If it does, it can be between 6 months and 2 years.

We hope we have cleared up all your doubts about misappropriation. A crime that, in many cases, generates confusion due to its resemblance to other crimes related to patrimony.