The Second Chamber of the Supreme Court (SC) has partially upheld the appeal of a woman who had been convicted of fraud and forgery by the Provincial Court of Madrid, acquitting her in this case, but upholding the conviction for the crime of misappropriation. This decision is based on the circumstances in which it is proven that the convicted person misappropriated funds, which did not involve deception.
According to the proven facts, the woman worked in a law firm “making payments and collections and having access to the chequebook and the passwords to the office’s bank account”. On requesting the bank transactions made between 2008 and 2012, the administrators verified the existence of transfers and cheque payments in the name of the convicted party that did not correspond to the firm’s operations.
Thus, it was considered accredited that she misappropriated at least 228,329 euros “taking advantage of the position and function she held, she misappropriated by means of the aforementioned procedure, and in a continuous manner”, for which the lower court sentenced her to 4 years in prison and a fine of 10 years with a daily quota of 10 euros.
In sentence number 625/2023, of 19 July, to which Confilegal has had access, it is explained that the crime of fraud requires the existence of a deception that “provokes an error in another person that induces them to carry out an act of property disposition that produces a damage, either to themselves or to a third party”.
Article 248 of the Criminal Code (CC) “requires the deception to be sufficient, in reference to the fact that it must be precisely this machination of the perpetrator that provokes the error that is the origin of the financial displacement”, in other words, it must be the error of the passive actor, caused by the deception, that causes the damage, according to the decision of the court formed by Manuel Marchena Gómez, president, Juan Ramón Berdugo Gómez de la Torre, Antonio del Moral García, Ana María Ferrer García -rapporteur- and Pablo Llarena Conde.
Thus, given the abuse of the administrative capacities of the convicted person, it is not allowed to “configure the deception, which is assumed to have lasted for several years – from 2008 to 2012 – as a determining factor in the act of disposition”, since “she made this diversion of funds compatible with the performance of her duties”.
This fits better with the crime of misappropriation, described in article 252 of the CP, in this case in the modality of “distraction of money whose disposal the accused has at his disposal, but which he has received with the obligation to give it a specific destination”.
THE QUESTION OF DEFENCELESSNESS
On the limits derived from the accusatory principle, which covers one of the arguments of the appeal, “it is not difficult to find judgments that deny the homogeneity between the two types, despite the fact that the protected legal interest may be the same”, as the judgment explains.
“While in fraud the attack on assets is carried out by means of deception with the consequent displacement of the assets, in [misappropriation] the displacement does not originate in that deception, but in the abuse of trust already placed in the active subject”, it states.
But it must be clarified whether the variation of the offences charged imply defencelessness by depriving any of the parties of any impossibility of defence by altering the facts or introducing new ones that were not present.
According to the ruling, “it is feasible that, without being an act constituting fraud, the accused carries out a manoeuvre of transformation of the initially legitimate title by means of deception, which will not be fraud if this patrimonial displacement is not a direct consequence of a manoeuvre of the injured party produced by error, but rather an activity of diversion of funds”. Thus, “homogeneity emerges naturally (…), the mutation of the title of imputation does not generate defencelessness”.
