13 Oct «The Black Cards´ Trial: Misappropriation crime.»
On Monday September 26 began the trial of the media scandal «black cards», a name it received because of the involved lack of transparency. Where all the ex-executives and ex-ministers, except for four of them, of the political Spanish parties PP, PSOE, IU were accused of alleged misappropriation and disloyal administration.
The defence claims that the concerned funds were payments of fees, salaries or remunerations in kind. But in reality they didn’t declare taxes over the funds that were spent as an income.
Due to this crime becoming more and more common in our society, the legislator was forced to reform the law. The above offences are regulated by Ley Organica 1/2015 of March 30, which was modified to create Ley Organica 10 / 1995 of November 23, of the Spanish Criminal Code, in Title XIII «Crimes against property and against the socio-economic order», Chapter VI «Frauds». We would like to dispel some doubts concerning this new type of crimes, as well as about the already existing crime of fraud.
Section 2 of the Chapter – “de la Administración Desleal”-, or «Disloyal Administration», article 252 has been changed, in addition to the crime of FRAUD, with the same punishment as fraud. The behaviour of those who manage assets of another person in such a way that it inflicts damage or a financial loss to their assets, is now punishable by law in the following cases:
• Causing damage to goods that are considered basic necessities like a house, or necessities that carry social usefulness.
• Using the signature of another, or subtracting, hiding or disabling any process or official document.
· Damaging artistic, cultural or scientific goods.
· In case the damage is particularly serious, through the consequences it causes or the situation it produces for the victim
· When the value of the deceit exceeds the amount of 50,000 euros, or affects a large number of people.
· When it is committed with abuse of personal relationships between the victim and the person committing fraud, or by taking advantage of a business or professional credibility.
· When procedural fraud is committed.
· Or if a person is convicted of being guilty of three offences of this type
Section 2 bis of the Chapter XIII of the Book II, add the crime of – “Apropiación indebida”- or «misappropriation», will be more severally punished in case of harming someone to one´s own benefit or a third party’s benefit, by appropriating money, goods, valuables or whatever matter they had on deposit, in commission, or custody, or when they had the obligation to return it, also in the event of the receiving party´s unjust denial of receipt of above mention transferred matters.
In both crimes, misappropriation as well as disloyal administration, when the value of the damages does not exceed 400 Euros, the punishment will be just a fine with a payment duration of one to three months. In case the offense is one of the above-mentioned offences, or when the defrauded amount is more than 250,000 Euros, a prison sentence will apply that might range from 4 to 8 years and a fine with a duration of 12 to 14 months.
Over the last years, Spain has seen an increase of these crimes, that’s why we, in our firm, have gained a lot of insight and experience with this type of cases and the whole field of economic criminal law.
We are happy to answer any question that you might have, feel free to contact us.