Article 432 Spanish Criminal Code: Misappropriation of public funds

Article 432, as amended by Organic Act 14/2022, punishes the public authority or official who, with intent to gain, appropriates the public property in the charge of that person, with frames graduated according to the harm caused and the value appropriated.

Wording of Article 432 of the Spanish Criminal Code

1. The public authority or official who, with intent to gain, appropriates or consents that a third party, with the same intent, should appropriate the public property in the charge of that person by reason of official functions or on the occasion of them, shall be punished with a penalty of imprisonment of two to six years and special disqualification from public office or employment and from the exercise of the right to stand for election for a term of six to ten years.

2. Penalties of imprisonment of four to eight years and absolute disqualification for a term of ten to twenty years shall be imposed if, in the acts referred to in the preceding paragraph, any of the following circumstances has been present:

a) serious harm or obstruction to the public service has been caused,

b) the value of the harm caused or of the public property appropriated exceeds 50,000 euros,

c) the property misappropriated was of artistic, historical, cultural or scientific value; or the matter concerned effects intended to alleviate a public calamity.

If the value of the harm caused or of the public property appropriated exceeds 250,000 euros, the penalty of imprisonment shall be imposed in its upper half, and it may be raised to the next higher degree.

3. The acts referred to in this article shall be punished with a penalty of imprisonment of one to two years and a fine of three months and one day to twelve months, and in all cases special disqualification from public office or employment and from the right to stand for election for a term of one to five years, where the harm caused or the value of the public property is less than 4,000 euros.

Working translation prepared by Société Juridique from the consolidated Spanish text published by the Official State Gazette. It has no official status: the only authoritative version is the Spanish original, available at the Official State Gazette and reproduced verbatim in our Spanish-language entry for this provision. Source: Organic Law 10/1995 of 23 November, the Spanish Criminal Code.

Sentencing range. Imprisonment of two to six years and special disqualification of six to ten years, rising to four to eight years and absolute disqualification of ten to twenty years in the cases of paragraph 2, and reduced to one to two years and a fine where the value is below 4,000 euros.

Elements of the offence

The status of public authority or official, and the charge of the public property by reason of official functions or on the occasion of them.
An act of appropriation, or the consent to the appropriation by a third party.
Intent to gain, which distinguishes this offence from the misfeasance of Article 433.
The value of the harm or of the property appropriated, which determines which of the three frames applies.

Defence strategy

Absence of intent to gain. Since the reform introduced by Organic Act 14/2022, intent to gain is an element of the offence. Where the funds were applied to a different public purpose, without any private enrichment, the conduct falls under Article 433 with a substantially lower frame.

Determination of the value. The three frames turn upon the thresholds of 4,000, 50,000 and 250,000 euros. An expert accounting examination of each item, and the exclusion of amounts which were justified or reimbursed, has a direct effect of years upon the penalty.

Charge of the property. The offence requires the property to have been in the charge of the accused by reason of official functions. Where the person had no powers of disposal, and merely processed a payment ordered by another, the objective element fails.

Reimbursement and mitigation. The reimbursement of the amounts before the trial hearing operates as a mitigating circumstance of reparation under Article 21.5 and, where substantial, as a very qualified one, which opens the reduction of one or two degrees under Article 66.

Are you under investigation or facing charges in Spain? Société Juridique acts for foreign nationals throughout Spain, with offices in Alicante and Madrid and a 24-hour custody line. +34 669 30 21 13 or enquire online.

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.

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