Criminal lawyers specializing in embezzlement offenses

The crime of embezzlement is regulated in articles 432 to 435 bis of the Penal Code, which punish conducts related to the illicit administration of public property.

Embezzlement by authorities and officials

On the one hand, Article 342 of the Criminal Code punishes the authority or public official who, for profit, appropriates or allows a third party to appropriate the public assets under his or her charge by reason of his or her functions or on the occasion of such functions. This behavior carries a prison sentence of 2 to 6 years and special disqualification for public office or employment and for the exercise of the right to passive suffrage for a period of 6 to 10 years.

Likewise, since the reform of 2022, the authority or civil servant who, without the intention of appropriation, allocates for private purposes the public assets placed in his charge by reason of his functions or on the occasion of such functions, is also punishable. This behavior is punishable by imprisonment from 6 months to 3 years and suspension from public employment or public office from 1 to 4 years (art. 432 bis of the Criminal Code).

An embezzlement offense is also committed by the authority or official who gives the public assets he/she administers a public application different from the one foreseen or agreed upon, in which case the penalty to be imposed is imprisonment for 1 to 4 years and special disqualification from public employment or office for 2 to 6 years (if it causes serious damage to the service), or disqualification from public employment or office for 1 to 3 years and a fine of 3 to 12 months (in all other cases) (art. 433 of the Penal Code).

Finally, the authority or civil servant who, in a manner suitable to cause economic damage to the public entity, falsifies its accounting or the documents that should reflect its economic situation, shall be punished with a penalty of special disqualification for public employment or office for a period of 1 to 10 years and a fine of 12 to 24 months, shall be punished with the penalty of disqualification for public employment or office for a period of 1 to 10 years and a fine of 12 to 24 months.

What elements are part of the public patrimony? 

All assets and rights, of economic-patrimonial content, belonging to public administrations (art. 433 ter of the Penal Code).

Thus, a crime of embezzlement is committed by the Mayor of a City Council who, taking advantage of the fact that he has access to the accounts of said public body, makes transfers in his favor from the accounts of the City Council, appropriating the money.

Aggravated modalities

The penalty to be imposed is more severe, imprisonment of 4 to 8 years and absolute disqualification for a period of 10 to 20 years, if any of the following circumstances concur:

1. Serious damage has been caused to the public service.
2. The value of the damage caused or of the public assets appropriated exceeds 50,000 euros.
3. The embezzled items are of artistic, historical, cultural or scientific value, or if they are effects intended to alleviate a public calamity.

In addition, if the value of the damage caused or of the appropriated public assets exceeds 250,000 euros, the prison sentence is imposed in the upper half of the sentence, and may be increased to the next higher degree.

Attenuated mode

If the damage caused or the value of public assets is less than 4,000 euros, a lesser penalty is imposed: imprisonment of 1 to 2 years and a fine of 3 months and 1 day to 12 months, and in any case special disqualification for public office or employment and the right to passive suffrage for a period of 1 to 5 years. 

Premium clause

If the guilty party of the previously described facts fully repairs the damage caused to the public patrimony before the beginning of the oral trial, or actively collaborates with the authorities to obtain decisive evidence to clarify the facts, the Judge will impose the penalty lower by one or two degrees (art. 434 of the Penal Code).

Embezzlement by private individuals

On the other hand, art. 435 of the Penal Code typifies as embezzlement the conducts described above if they are carried out by the following individuals:

1. Persons in charge of funds, income or effects of public administrations.
2. Private individuals designated as depositaries of public funds or effects.
3. The administrators or depositaries of money or goods seized or deposited by public authority, even if they belong to private individuals.
4. The insolvency administrators, in relation to the insolvency estate or the economic interests of the creditors.

Criminal liability of legal persons

Legal persons may be criminally liable for the commission of an embezzlement offense, in which case they shall be subject to the following penalties:

1. A fine of 2 to 5 years or three to five times the value of the damage caused or of the property appropriated, if the offense committed by the natural person is punishable by imprisonment for more than 5 years.
2. A fine of 1 to 3 years or double to quadruple the value of the damage caused or of the property appropriated, if the offense committed by the natural person is punishable by 2 to 5 years of imprisonment.
3. A fine of 6 months to 2 years or double to triple the value of the damage caused or of the property appropriated, in all other cases.

Likewise, the Judge may impose penalties of dissolution, suspension of activities, closure of premises, prohibition to carry out activities in the future, special disqualification to obtain subsidies and public aid and judicial intervention.