Penal Code Articles 434 & 435: Embezzlement Offenses

Understanding Embezzlement under Spanish Penal Code

Article 434: Private Use of Public Assets

Article 434 addresses the embezzlement of private enforcement of public goods. This provision fulfills a gap reported in legal literature prior to the entry into force of the current Penal Code, criminalizing conduct that was previously considered atypical.

This offense involves the private enforcement or use (e.g., private use of an official vehicle or official release) of movable or immovable property belonging to any administration, public body, or entities subject to them, without such assets becoming part of the property owner's estate.

The key difference from the offense defined in Article 433 is that in Article 434, the asset is not subtracted or misappropriated, but rather subjected to private application without an apparent transfer of assets.

Requirements for Article 434 Conviction

The active subject must be a public official acting for personal profit or the profit of another. Furthermore, the private enforcement of the movable or immovable property must cause serious harm to the public interest. New case law is required to determine the scope of such serious injury.

Article 435: Improper Embezzlement (Malversación Impropia)

Article 435 sanctions what are known as improper embezzlement offenses. This designation derives from the fact that the perpetrators included as authors of this crime are not necessarily public authorities or officials.

The methods of commission mirror those defined in the three preceding articles: subtraction (misappropriation), diversion for non-public uses, and private enforcement.

Sanctioned Parties and Assets under Article 435

Sanctions apply primarily to individuals who are responsible, by any concept, for funds, revenues, or effects of the government, as well as individuals legally designated as depositories of public funds or effects. In these cases, the funds, annuities, or effects belong to the public sector.

The Third Case: Private Property Under Public Custody

A distinct scenario is covered in the third section of Article 435, concerning:

"Directors or trustees of money or property seized, attached, or deposited by public authority, although the property is privately owned."

In this specific case, the property typically belongs to private individuals. According to the jurisprudence of the Supreme Court, the following requirements must be met:

1. The existence of judicial or administrative proceedings.
2. The relevant authority must have agreed upon a seizure, attachment, or deposit of the goods belonging to a specific person or entity.
3. The establishment of the deposit of goods in a legal manner, granting possession to the depositary.
4. The custodian must have accepted the entrusted task, having been instructed regarding their duties and responsibilities.
5. The custodian removes, makes available, or consents to another party removing or making available the property without proper authorization.