The Supreme Court recently issued sentence nº 1006/2021 dated December 17, 2021, which analyzes the crime of unfair administration, a subtype of misappropriation.

In this specific case, the condemned party took money for personal gain from assets property of a Real Betis Balompié football player and from a company whose administrator and sole shareholder was said football player.

This player had a friendship bond with the defendant and thus had appointed him as administrator of his assets, trusting him to manage his personal and professional business without him having to render any account of his management.

During the approximately four years he worked for the soccer player, the convicted party took possession of more than 780,000 euros through cash withdrawals, the destination of which could not be justified.

Therefore, the Supreme Court considers that disloyal management by the convicted party has been proved given that the funds were used for purposes other than those for which they were intended, which has consequential damage to the owners of the administered assets, regardless of whether the administrator had appropriated them, a hypothesis that seems likely due to the unjustified increase in the level of income of the convicted party coinciding with his functions as asset manager.

The sentence establishes that when money or other fungible goods are involved a series of objective elements will be required to frame the facts as a crime of misappropriation:

a) that the author receives it by virtue of deposit, commission, administration or any other title that carries the obligation to deliver or return titles of the same kind and quality.

b) that the author executes a disposition of the object or money received that is illegitimate in that it exceeds the powers conferred by the title received, thus using it for a final purpose different from the one agreed, imposed or authorized.

c) that this action results in damage for the taxpayer, which will ordinarily imply an impossibility, at least transitory, of recovery.

In any case, it is clear from this ruling that we are dealing with a numerus apertus principle which includes legal relationships of a complex and atypical nature that do not fit into any of the categories specified by law or civil or commercial use, with no other requirement than that demanded by criminal law, i.e., that an obligation to deliver or return is originated. That is to say, this crime does not apply only to the figure of the formal administrator of a company, but also to other similar figures such as the proxy, the de facto administrator, etc.

Maria Elías
Disputes Area