Misappropriation

A company was established in 2018. At one point, due to problems in opening a bank account (there were restrictions due to the composition of the capital), a “procedural” operation was carried out where 70% of the shares were put in the name of a third party to facilitate that opening, although the real idea was that control remained in the hands of those who had been managing the project.

To make it clear that this was something instrumental , a private document was signed stating that this sale was only for that purpose and that the third party had to return those shares for the same price (2,100 euros) when requested. Furthermore, he was eventually appointed administrator and accounts were opened and banking operations were conducted in the name of the company.

Over time (in 2020), after disagreements, those claiming the return of that 70% formally requested it . The third party refused to return them. That is where the courts see the criminal problem since, although the “transfer” had a practical purpose, he had something in his name with a clear commitment to return it , and when refusing acted as if it were definitely his.

The third party appealed to the Supreme Court (TS) arguing, among other things, that there was no true appropriation, that the agreement was "simulated" , that there was no harm or that the presumption of innocence was violated. The TS, however, understands that there was sufficient evidence and that simulation or the instrumental nature do not prevent recognizing undue appropriation if there was an obligation of restitution and what was received is retained. For all this, the conviction for aggravated undue appropriation is maintained.