Accusation of misappropriation: what it consists of and how to defend yourself

Misappropriation is one of the most frequent offences against property in the professional, business and personal spheres. It occurs in relationships of trust that go wrong: the employee who manages company money and keeps part of it, the administrator who uses corporate funds for their own purposes, the lawyer who withholds their client’s money, the friend entrusted with an object who does not return it. Betrayed trust is the element that characterises this offence.

Misappropriation is defined in Article 253 of the Criminal Code: it consists of someone who receives money, securities or other movable property on deposit, commission, administration or by another title that produces an obligation to deliver or return them, diverting them to the detriment of another or denying having received them. The central element is the lawful receipt followed by unlawful disposition. Unlike fraud, in which the deception exists from the beginning, in misappropriation the property was received legitimately and the unlawfulness arises later, when the person who received it decides to keep it or to use it in a way other than agreed.

For the conduct to be criminal, several elements must concur. Receipt under a legitimate title implying the obligation to return: if the property was handed over as outright ownership, with no obligation to return it, there is no misappropriation. The diversion, that is, giving the property a destination other than the one agreed, or the refusal to return it. The actual financial harm to the owner. And the intent: the knowledge that one is appropriating something belonging to another and the will to do so.

The most frequent forms are misappropriation by administrators and employees who manage company funds; misappropriation in agency relationships, such as that of the lawyer or manager who receives funds from the client for one purpose and applies them to another; misappropriation of property received on deposit or on loan for use; and misappropriation in homeowners’ associations or associations by whoever manages collective funds.

It is worth distinguishing misappropriation from fraud: the key difference is the moment when the deception or the will to appropriate appears. In fraud, the deception precedes the handover; in misappropriation, the receipt is legitimate and the will to appropriate arises later.

The penalties are proportionate to the amount: for harm exceeding 400 euros, imprisonment of six months to three years; for harm exceeding 50,000 euros, imprisonment of one to six years, with aggravated penalties in the most serious cases. Below 400 euros, the conduct is a minor offence punishable by a fine.

The most common defence arguments are the right to retain the property because of a reciprocal debt of the complainant, although the right of retention has specific requirements; the absence of an obligation to return, if the property was handed over as payment or a donation; the absence of intent, if the accused believed they had the right to dispose of the property; and the consideration that the dispute should be resolved through the civil courts, when it really responds to a contractual breach without intent to appropriate. It is worth remembering that the offence is subject to a statute of limitations of five years from its completion, a period interrupted by the complaint.