What is the crime of misappropriation?

Misappropriation is an offence under the Penal Code that is subject to heavy penalties. However, it is one of the most controversial crimes because it is difficult to determine exactly what it is and who commits it. For this reason, and with the aim of shedding light on the matter, as lawyers specialising in theft, robbery and fraud, we have prepared this article.

Definition of the offence

In criminal law, misappropriation is understood as any action that involves the acquisition, in a conscious manner, of something that entails the detriment of another person. However, if we stick to this definition alone, it would be relatively easy to make the mistake of confusing it with fraud. In fact, this was a real problem until, by means of Organic Law 1/2015 of Modification of the Criminal Code, it was specified more specifically. It appears in its article 253.

This article establishes that this offence is based on the appropriation, for one's own benefit or that of a third party, of effects, money or securities that have been entrusted to them in commission, deposit or custody and that, when the time comes to return them, they refuse to do so. Evidently, for this to occur, it is essential that there be a prior agreement. Therefore, since this modification, it is impossible to confuse this offence with that of fraud, as there is no deceit on the part of one party to another.

Requirements for the recognition of the offence

Obviously, due to the controversies generated by this offence, the Criminal Code has also established, through its latest amendment, a series of 'sine qua non' requirements for its determination. Thus, in order for an accusation to be made that an individual has unlawfully appropriated an asset or an amount of money that does not belong to him, the complainant must provide some document or title that proves that it is his property or, failing that, that there was an agreement between the two for the temporary transfer.

The purpose of imposing these requirements is to prove that the offence of theft has not been committed. But they are also necessary to prove that the goods have been transferred, not given away or sold. Therefore, it can be concluded that what took place was a transfer of possession, not ownership of the disputed property.

A further prerequisite for the recognition of this offence is that the active subject, who is the offender, enjoys an enrichment derived from the appropriation, while the passive subject, who is the legitimate owner, has been impoverished as a consequence of the act.

What are the penalties contemplated by the Criminal Code for this offence?

Obviously, it is a crime included in the Criminal Code and, therefore, its commission entails a certain penalty, which will vary, fundamentally, depending on the value of the goods taken unlawfully and the type of appropriation carried out, as well as its seriousness.

However, following the modification of the Criminal Code referred to above, with the aim of simplifying the most minor cases as much as possible. Specifically, the limit is set at 400 euros. In these cases, the penalty is always a fine of between 1 and 3 months. However, although no prison sentence is served for its commission, it does generate a criminal record.

On the other hand, when the amount that the offender has misappropriated is more than 400 euros, the penalty will be increased to between 3 and 6 months' fine. However, if the goods affected have cultural, scientific, artistic or historical value, prison sentences of between 6 months and 2 years are established.

There is another special case, which is the aggravated form of unlawful appropriation. This carries a prison sentence of between 1 and 6 years and a fine of between 6 and 12 months. However, it will only be considered as such if the goods affected are considered to be basic necessities or are dwellings, if there has been particular economic damage to the taxpayer and his family, if the value of the goods is greater than 50,000 euros or if the offence has been committed by abusing the existing relationship.

Does this offence fall under the statute of limitations?

Yes, it does. Specifically, the law establishes that the statute of limitations for the crime of unlawful appropriation is 5 years if the acts are considered minor or carry sentences of less than that same period of time. Likewise, in the case of aggravated offences, this period increases to 10 years.

Can this offence be committed in the case of inheritance?

This is a fairly frequent doubt among those affected by this offence. The answer is yes. In fact, it is more common than it may seem. Specifically, it usually occurs in those situations in which the heirs hide part of the existing assets in order to appropriate them without the rest obtaining benefits.

It should be borne in mind that, when distributing an inheritance, it is essential to make an inventory, a process in which it is common to make mistakes. In this sense, when they are unintentional, there is no major problem. However, if they have been made consciously, yes, as they are generally made with the purpose of keeping the inheritance for one's own benefit.

If this requirement is met and the case is taken to court, it is most likely to be recognised as a crime of unlawful appropriation, which will lead to the imposition of the penalties described above, although always depending on the seriousness of the act.

A clarification must be made at this point. If the offender who misappropriates the goods does so with the intention of handing them over or selling them to a third party, then the offence would be one of fraud, as it would be understood that there would be deceit and special pain.

And in the rental car sector?

Absolutely yes. In fact, since the modification of the Criminal Code in 2015, this is the case under which most complaints are filed regarding this offence. The reason is that, on many occasions, the lessees of a vehicle do not return it within the agreed period and do not pay the relevant amount. Since the voluntary transfer exists, it cannot be considered as theft or fraud.

It is necessary to take into account that, in these cases, the offence of appropriation will be considered serious as the value of the car will always exceed 400 euros. Furthermore, to this should be added the corresponding financial compensation for the extra time the vehicle has been kept and during which the company has not been able to make any financial profit from it.

In short, the crime of misappropriation, within Criminal Law, has come to establish clear differences in cases that were previously considered theft or fraud. We hope that, thanks to this article, you will now be clear about what it consists of and in which cases it applies.