Misappropriation of Public Funds in Spain

Embezzlement of Public Funds

Article 432.1: This article addresses the core offense, which involves a public official stealing public revenues or assets entrusted to them due to their position. This is considered passive embezzlement when the official allows a third party to steal said funds. The perpetrator must be a public official, as defined in Article 24 of the Penal Code. The act involves 'stealing,' which is equivalent to 'appropriating' with the intent to incorporate the assets into their own or a third party's possession. 'Funds' are defined as anything of economic value belonging to the Administration, not necessarily already within the public treasury. The official must have control of these funds due to their position; otherwise, it constitutes theft or misappropriation. Consummation occurs when the funds are transferred to the perpetrator or a third party.

Aggravated Circumstances (Article 432.2)

The penalty increases if the misappropriation is of particular gravity, considering:

• The value of the stolen amount.
• The damage or disruption caused to public service.

Case law determines the specific thresholds for 'very high value.' Aggravation also applies if the misappropriated assets have been declared of historical or artistic value or were intended to alleviate a public calamity (e.g., earthquakes, epidemics, fires, floods, drought). A prior official declaration of historical/artistic value is required.

Diminished Offense (Article 432.3)

A diminished offense applies "when the stolen amount does not reach four thousand euros." If the value exceeds this amount, Article 432.1 applies, and if particularly serious, 432.2. If the amount is indeterminate but quantifiable and does not exceed four thousand euros, Article 432.3 applies under the principle of in dubio pro reo (when in doubt, for the accused).

Misapplication of Public Funds

Article 433: Unlike the appropriation intent in Article 432, this article concerns the animus utendi, where the authority or public official uses public funds for purposes other than those intended, without the intent to keep them or transfer them to a third party. The funds must be under the official's control due to their position, and the use must be non-public. Consummation occurs with the unauthorized use, regardless of the outcome.

The second paragraph states: "If the offender does not return the diverted amount within ten days of the initiation of the process, the penalties in the preceding article will be imposed." Full reinstatement is required; partial refunds do not negate Article 432. Initially, the crime falls under Article 433.1. If full reimbursement occurs within ten days, Article 432 applies. Reimbursement after this period does not prevent the application of Article 432 but may be considered under Article 21.5 of the Penal Code for penalty determination.