Distraction money: misappropriation or unfair administration
Seguramente el lector se habrá planteado alguna vez qué ocurre cuando se omite la devolución de un importe debido, o el dinero entregado para un fin concreto, se destina a otro distinto del acordado.
Se trata de supuestos de hecho diferentes que pueden subsumirse de forma diferenciada en los delitos de apropiación indebida o de administración desleal.
The Judgment of the Supreme Court 26 July 2016, we bring in this new analysis, addresses this distinction. The proven facts are as follows:
- In mid-July 2011, Ms.. Sacramento moved to Zamora. I got in touch with D. Onesimo, who subscribes 29.09.2012 a private contract under which this undertook to sell the property to that "01" free of all liens and encumbrances for price 40.000 €. It was established as an essential condition D. Onesimo previously sold an apartment Dña. Sacramento on behalf of it. Ms.. Sacramento handed 10.000 € at the time of signing the contract on account of the sale price of the property "01".
- The 23.05.2013, D. Onesimo, previous seizure by Dña. Sacramento, He sold the apartment for price 26.000 €, sum that was delivered in three installments. Also, the 13.07.2013, D. Onesimo signing a document stating that Dña. Sacramento had paid all the 40.000 € purchase price of housing.
- Nonetheless, D. Onesimo make excuses for not delivering such housing Dña. Sacramento. In response, Ms.. Asks a simple note Sacramento housing, and it appears that the property is encumbered with a mortgage of more than three million euros. D. Onesimo give other housing it offers similar features, but Dña. Sacramento also asks a simple note of that other housing and check that is taxed with another mortgage.
- D. Onesimo he not provides housing or returned any amounts received Dña. Sacramento.
Con base en dichos hechos probados la Audiencia Provincial de Zamora dictó Sentencia el 10 July 2015 condemning D. Onesimus for a crime of misappropriation. Against that judgment, the defendant filed appeal for breach of form (omissive incongruity), for violation of the presumption of innocence, and subsumption error as the facts are atypical.
As regards the so by negligent breach incongruity, the Supreme Court observes that the infringement takes place in those cases where the trial court violated the duty of attendance and resolution of those claims have been brought to a timely process and temporarily, thereby frustrating the right of the party, integrated into the effective judicial protection, to get an answer based on the law on the matter formally raised, but there is no violation of this fundamental right when the argument focuses on the omission of an argument, “since the Court is not obliged to give an explicit response to each and every one of the allegations or arguments ", so why not consider.
As regards the infringement of the presumption of innocence (that lets you check whether the appeal court judgment based on
1º Una prueba de cargo suficiente;
2º Una prueba constitucionalmente obtenida;
3º Una prueba legalmente practicada;
4º Una prueba racionalmente valorada;
El Tribunal Supremo responde a las alegaciones de la parte recurrente indicando que el propio acusado ha reconocido haber recibido dinero, that there was abundant documentary and witness evidence about, and that the assessment made by the Court was rational.
As regards the error of subsunción by unusualness of the facts, the appellant alleges that the title under which he received the money is not requiring the return or integrate, because the money they gave the injured was delivered as part of the price of housing, which it would cause that the facts could not be brought into the crime of misappropriation and, therefore, which should be issued acquittal. The Supreme Court responded to this reason remembering that, as already they indicated in the STS 163/2916, of 2 March, the reform of the Penal Code by Law 1/2015 “It has excluded from the scope of unfair misappropriation of money management distraction, but they remain in the scope of the type of misappropriation appropriation of money in cases where the accused appropriates to himself or others definitively ".
Reaching even beyond raised by the appeal itself, the Supreme Court noted that, to have been excluded in the new reform 2015 the term distract the crime of misappropriation, if the conclusion remained that money could only get distracted, and no grab, entonces los hechos deberían subsumirse en el delito de unfair administration and, therefore, It should acquit the accused (for he had not made prosecution for the offense of unfair administration). However, the Supreme Court, according to the latest doctrine stated that the distinguishing criterion "Between the crime of misappropriation and unfair the disposition of property management definitively to the detriment of the owner", and also rejected that plea on appeal.
Based on the dismissal of all grounds, the Supreme Court upheld the judgment of the Provincial Court.
En ese sentido Debe recordarse en supuestos de esta naturaleza que lo determinante para diferenciar el delito de apropiación indebida del de administración desleal es el hecho de si la disposición de bienes se realiza con carácter definitivo (misappropriation) o no (unfair administration); namely, if indeed an act of good provision is made or if, On the contrary, It is only performed an act of administration on the same.