Criminal complaint for misappropriation or breach of trust in Spain: what to do if your administrator has kept your money

You entrusted your money to someone to manage it or use it for a specific purpose: your community’s property manager, an agent who was supposed to pay your taxes, the director of your company, someone holding your power of attorney, or a relative with access to your accounts. And the money never reached its destination. When someone keeps or diverts other people’s funds, it may be not just a breach of contract but a crime, and you can file a police report or a criminal complaint (querella) for misappropriation.

At MH & MG Abogados we have been representing victims of financial crime for more than 25 years from our offices in Barcelona and Roses (Girona). Here are your options and how to act.

Misappropriation or breach of trust

The Spanish Criminal Code distinguishes two offences, although both carry the same penalties:

• Misappropriation (apropiación indebida, Article 253 CP). Committed by anyone who receives money or other property with an obligation to hand it over or return it, and keeps it or denies having received it. For example, an agent who collects the amount of a tax and does not pay it in.
• Breach of trust (administración desleal, Article 252 CP). Committed by anyone with powers to manage someone else’s assets who exceeds those powers and causes loss. For example, a property manager who transfers money from the community account to a personal account or pays expenses nobody approved.

Case law does not require proof that the money ended up in the administrator’s pocket. It is enough to prove the loss caused by management contrary to the duty of loyalty.

What penalties apply

In the basic offence, the penalty is six months to three years in prison. If the amount exceeds €50,000 or another aggravating circumstance under Article 250 CP applies, such as abuse of personal relationships or professional credibility, the penalty rises to one to six years. If the amount does not exceed €400, it is a minor offence punished with a fine.

In addition to the penalty, the convicted person must return what was taken and compensate for the loss. This civil liability is claimed in the same criminal proceedings.

First steps

1. Ask for an account in writing. Request statements, receipts and explanations of where the money went. A refusal or an inconsistent answer is significant evidence.
2. Gather the documents. The contract or mandate, minutes of owners’ meetings, powers of attorney, bank statements, receipts and correspondence with the administrator.
3. Consider a forensic accounting report. In complex cases, an expert can reconstruct the transactions and quantify the loss.
4. Block their access. Revoke powers of attorney, change the authorised signatories at the bank and, in a community of owners, call a meeting to dismiss the property manager.

Police report or criminal complaint

There are two ways to start criminal proceedings:

• Police report (denuncia). Filed with the Mossos d’Esquadra, the police or the duty court, without a lawyer. It is simple, but the investigation is left in the hands of the court and the public prosecutor.
• Criminal complaint (querella). Filed by your lawyer, with a court representative (procurador), before the investigating court. It makes you a private prosecutor from the outset: you can propose investigative steps (orders to banks, expert reports, witness statements), request precautionary measures such as freezing assets, and appeal the court’s decisions.

When large sums are at stake or the administrator may hide assets, a querella is usually the most effective option.

Time limits and other points

These offences generally become time-barred after five years in the basic form and ten years in the aggravated form, counted from when they were committed. If the offender is a close relative (a spouse who is not separated, a parent or grandparent, a child or grandchild, or a sibling), Article 268 CP exempts them from criminal liability, though not civil liability, unless they took advantage of the victim’s vulnerability due to age or disability. In those cases, and where the amount is small, civil proceedings may be preferable: a claim for an account and for payment of the sum owed.

We help you recover your money

At MH & MG Abogados we analyse your case, prepare the documents and evidence, draft the criminal complaint and represent you throughout the proceedings so that those responsible are held to account and you recover what is yours. Find out more on our criminal law page.

Book an in-person or online appointment in Barcelona (+34 93 368 32 02) or Roses (+34 972 15 24 32), via WhatsApp (+34 653 964 658) or through our contact page. We will give you a no-obligation quote.