The Provincial Court confirms the acquittal of the sole administrator of a fishing company in Vélez-Málaga, accused of misappropriating €54,934 from the company funds. The judges consider that there is no evidence of misappropriation and apply the exculpatory excuse of the Penal Code as it is a crime between siblings.
The Second Section of the Provincial Court of Málaga has confirmed the acquittal of the sole administrator of a fishing company based in Vélez-Málaga, who was accused of misappropriating €54,934. The events date back to the management of the company, which focused on the maritime sector, and in which the accused was a brother of the other partners.
The Criminal Court number 9 of Málaga had initially tried the case, and now the Court upholds the acquittal ruling, considering that the diversion of funds has not been proven. The judges acknowledge that the administration was "chaotic", but emphasize that it has not been demonstrated that the accused had kept any personal gain.
The private prosecution, exercised by the partners, argued that the administrator had made abusive use of his powers, diverting the company's income and allocating it to purposes other than those agreed upon. According to the complainants, this management led to non-payment of charges and obligations, generating debts with Social Security, the Tax Agency, a management company, the Andalusian Ports Agency, and the Fishermen's Guild.
Additionally, the complaint included damages to suppliers of supplies and repair and maintenance of the fishing boat, whose grounding in the port was not consented to by the other partners and generated a debt of €9,301 until August 2015, with daily mooring fees. The complainants stated that the administration caused a patrimonial harm that led to the ruin and cessation of the company's activity.
However, the Second Section recalled the jurisprudential doctrine that prevents condemning someone previously acquitted in an appeal and considered that there is no conclusive evidence of misappropriation, despite the expert report presented. The judges noted that it has not been demonstrated that the accused "had kept any gain" during the "chaotic" joint administration of the brothers, so there was no fraudulent administration or diversion of money.
Therefore, the ruling applies the exculpatory excuse of Article 268 of the Penal Code, which exempts from criminal liability in property crimes between family members, as long as there is no violence, intimidation, or abuse of vulnerability. This exemption aims to protect family peace, although it maintains the obligation to respond civilly for the damages caused.
The Court clarified that cohabitation between siblings is not required to apply this exemption, nor is violence in the crime. The family member who commits the crime is exempt from criminal punishment, such as imprisonment or fines, but must repair the damage or return what was taken if their civil responsibility is confirmed. The Court also declared the procedural costs in the second instance ex officio as it did not find recklessness or bad faith in the proceedings.
The ruling marks the end of a long judicial process that began with the complaint of the partners, who saw how the fishing company entered a state of insolvency. For the residents of Vélez-Málaga, the case reflects the management difficulties in small family businesses in the fishing sector of the Málaga coast, where trust between siblings sometimes leads to judicial conflicts.
The acquitted administrator can now resume his activity without the sword of Damocles of a criminal conviction, although civil responsibility remains open if the partners decide to claim through civil means. For now, the criminal justice system has closed the case with an acquittal that, according to the judges, does not imply approval of the management, but rather a lack of evidence of a crime of misappropriation.
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