Concealment of assets, criminal intent and harm to the creditor,es

alzamiento de bienes


Is the intentional element and injury to the creditor for the commission of a crime of concealment of assets is necessary?

The Criminal Chamber of the Supreme Court has ruled on one such case in Judgment 1 July 2016:

Lorenzo and Olga granted in January 2007 deed of exchange of land in exchange for work for which was forced to surrender 6 trasteros, 6 parking spaces and 4 homes within 36 months from the signature and in case of delay, to compensate with 2.000 euros por mes a Juan Nieto Martinez S.L. Se entregó en garantía del cumplimiento un pagaré de Caja Rural de Albacete por 300.506 euros, whose collection was guaranteed jointly and severally by both defendants, maturing on 30 January 2010.

Con la obra acabada al 85%, work was suspended and presented for payment at maturity promissory note, I was impagado.

Before the expiration of the note, and in anticipation of future claims, Olga He agreed with her daughter Mercy and by deed of gift dated 7 August 2009 He donated all his possessions, staying insolvent detriment of its creditors.

The Provincial Court of Albacete, in Case 14 May 2015, condenó a Olga y a Piedad como autoras responsables de un crime of concealment of assets, the penalty 20 months imprisonment for each, with suspension of the right to stand for election and fine 18 months with a daily fee 20 euros. The deed of gift was declared invalid.

Both they accused filed appeals on points of law and constitutional provision to the Supreme Court.

They claimed infringement of the fundamental right to the presumption of innocence (5.4 LOPJ and 852 Relative to LECr 24.2 EC), considering that there is not sufficient evidence, especially on the criminal intent as a subjective element of the crime and the existence of a real financial loss for the creditor.
For the Board, the cassation function with respect to infringement of the right to presumption of innocence, must be limited to verifying that:

a) Court ordered the judge of evidentiary material.
b) Evidentiary material was lawful and valid.
c) The arguments are logical.

For, It was proved the existence of a payment obligation, and operations of the debtor to decapitalize (donation to his daughter), preventing or hindering payment to the creditor. As the daughter, signs make it impossible for outside ignorant of the duties of his mother.

the principle "in dubio pro reo" does not apply because the judgmental Court had never expressed that interpretative doubts but bases his belief in the reality of the facts.

Moreover, se alegó error in the assessment of the documentary evidence to prove that the first entity obliged to comply with the obligations was not actually insolvent and that there would be damage to the creditor.

The Chamber indicates that for this type of error could be the basis to Resource, It should be "literosuficiente" ie, evidencing without a subsequent valuation (SSTS 18 July 1997). The documents alluded, They do not have that character.

"And this, also, whenever the existence of damages and other extreme which say accredited by designated documents is irrelevant for the purpose of committing a crime of concealment of assets, when who was obliged to comply with a given financial obligation is placed voluntarily in a situation of insolvency which prevents, or at least difficult, seriously the right to collect the creditor ".

Last, se alegó infracción legal por la Audiencia al aplicar el derecho sustantivo a los hechos declarados como probados (article 849 1º LECR). La Sala desestima el motivo, considering that the description of the Audiencia collected the necessary elements to reach their damning conclusion: He made a generator act of lack of solvency, with the full knowledge and intent to achieve equity capitalization.

Ultimately, resources are dismissed and sentences are confirmed by concealment of assets imposed by the judgment of the Provincial Court of Albacete 14 May 2015.

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