| 30/04/2021 13:32 | Updated: 04/30/2021 1:56 PM
The Superior Court of Justice of Asturias has confirmed a conviction of five years in jail for a lawyer, J. M. M. M., for ongoing crime of misappropriation, especially serious due to the economic situation in which he left a married couple, which he even forced the woman to beg on the street.
The victims are a couple who hired him to manage his permanent disability after an accident.
The lawyer was convicted of appropriating 180.904,74 euros from them.
The court of the Civil and Criminal Chamber has dismissed the appeal presented by the legal representation of the convicted person against the sentence of the Provincial Court of Oviedo (Eighth Section) that imposed this sentence on him on February 17.
In addition to the prison sentence, this lawyer has been sentenced to pay the marriage compensation of 180,906.74 euros for the damages caused, 5,000 euros to the woman for the moral damages inflicted, and a fine of 3,960 euros.
The judgment of the Supreme Court is number 22/2021, of April 28, signed by the magistrates Jose Maria Chamorro Gonzalez (President), Jose Ignacio Perez Villamil (west) e Ignacio Vidau Argüelles.
The TSJ considers as proven all the facts included in the judgment of instance.
Relying on the abundant jurisprudence existing in this regard, it considers that in substance or essentiality “said facts are consistent with those of the accusations, since, in synthesis, they report that the accused, constantly and sustained for years, abusing the power granted by the victim, made important and numerous cash withdrawals from the bank account that she and her husband had, disposing of the money for their exclusive benefit, causing the holders an economic hardship that led the wife to beg and encrypting the total amount of money with which the accused was unduly kept in the amount of € 180,904.74«.
In addition, for the magistrates, the detailed breakdown that the sentence “exemplary and exhaustively makes, in accordance with the result of the documentary carried out, of the reimbursements made by the accused in different years, which does not exactly coincide with the content of the indictments,” does not imply a departure from the facts presented by the accusations in their fundamental aspects, which is what the accusatory principle requires with regard to the factual link, which does not prevent the sentence in the historical trial from introducing specific or detailed modifications derived of the evidentiary result, in particular by the documentary provided by the Bank, relative to the movements of the victims’ account.
Consequently, it does not consider that the accusatory principle had been violated or that the appellant was rendered defenseless.
Unaltered the proven facts and accredited the amount of the unduly appropriate amount, the court concludes that “there has not been a violation of the principle of praying as regards the” quantum “of civil liability established by the contested judgment”, which is considered adjusted to satisfy “the legitimate civil rights of the victims.”
With regard to a possible violation of the right to the presumption of innocence, the TSJA notes that “the sentence appealed is exemplary in the motivation of the historical trial” and in the appreciation of the evidence practiced in the plenary “proceeds in an orthodox manner to carry out the two operations that make up the evaluative process ”, which are to interpret the result of the evidence and to do so in an intimate relational connection with the sequential account of facts that it declares proven.
For all these reasons, for the magistrates “the evidence for the prosecution is overwhelming and was exemplarily valued by the Chamber with an exemplary, reasonable and coherent motivation” and “it also refutes, with arguments attached to the most elementary logic, the exculpatory version offered in the plenary session by the accused and the documentary provided by the defense to justify it.
The sentence, which is not final, can be appealed in cassation before the Criminal Chamber of the Supreme Court.
THE PROVEN FACTS, IN DETAIL
On July 28, 2009, the man who hired his services -born in 1950-, while working as an assembly officer, suffered a cardiorespiratory arrest that, despite the medical attention provided, after being discharged on June 14, 2010, It left aphasia and right hemiplegia as sequels, generating a serious disability.
Faced with the evidence of the serious consequences of the labor accident suffered by the man, the health personnel advised his wife -born in 1953- of low intellectual level, that she could be in the hands of a lawyer to help her process all the bureaucratic procedures that they were going to be specified for the collection by her husband of the Social Security benefits for permanent disability to which he was entitled and, where appropriate, the indemnities that may correspond to him from the Mutual Societies or insurance companies.
As the woman was a customer of a store run by the mother of the convict, she went in May 2010, overwhelmed by the situation, to the law firm of the convict and his partner, to whom she entrusted the completion of all the necessary procedures before the INSS for the collection of the permanent disability pension and for the management of the compensation that may correspond to her husband in the event of his absolute disability.
As a result of these efforts made by both lawyers, the INSS recognized with economic effects from June 15, 2010 the permanent disability benefit in the degree of great disability to men, with a liquid economic amount of 2,847.03 euros per month, an amount that It was first credited to the account owned by the marriage on December 31, 2010.
Until that month, the man had continued to collect his payroll and, in turn, the Mutual Society, as a collaborating entity of the INSS, had made a transfer of 4,750 euros in July 2010.
In addition, on October 12, 2010, the insurance company made two transfers to the married couple’s account for amounts of 40,000 and 45,000 euros, respectively.
On those dates, the couple moved to live in Valladolid, for which the lawyer and his partner found a suitable residence for the man, given his serious disability, and for her a flat of
rent, close to the residence.
The convicted person advised the woman to grant power of attorney to both lawyers so that they could continue to carry out proceedings, claims and pending collections on her behalf in relation to the insurance companies.
Then, also according to the proven facts, the woman, “given that until that moment the steps that she had entrusted to the aforementioned lawyers had been satisfactorily resolved, in fact her husband had already guaranteed the collection of the severely disabled pension and the insurance companies had finished to enter into your account large sums of money “, to facilitate any pending procedure that had to be carried out, as it was leaving, on October 22, 2020 it granted “Vast power” in favor of lawyers, who “among other powers included the ability to enter or withdraw funds, make transfers for payments to third parties, etc., in banking entities” in which the principal was the holder of current accounts.
The Hearing considered it proven that the lawyer, “apart from his office partner and unaware of her, aware of the significant increase in the marriage income derived from the collection of the pension for severe disability and compensation derived from the work accident, in a constant and sustained way for years, he proceeded to abuse the power granted in good faith » for the woman.
Thus, «using it, it began -5 days after being granted-to misuse it for their exclusive benefit “, in such a way that the considerable amounts of money deposited in the bank account that
The marriage had in the Santander bank “they were disappearing from it with important and numerous cash provisions” that the lawyer made in Gijón, “to the point of being in the red for a few months, said account being penalized with a charge of 39 euros due to a debit balance every time this happened (occurring for the first time on January 28, 2014) and its headlines suffered an economic hardship ”that led the woman to beg at the door of a church.
This situation ceased when a person became interested in the woman and accompanied her to the office of a lawyer, who, appreciating that the woman needed help, brought the facts to the attention of the Prosecutor’s Office in June 2017, which he now found out. condemned, ceasing at that time to use power.
As stated by the Hearing, the total amount of money with which it was unduly kept amounts to 180,906.74 euros, “and this despite being completely aware that he was taking advantage of the trust placed in him»By the woman« to carry out small formalities, relating exclusively to the payment of taxes and management of the rental of the apartment and residence, and knowing that it, in some moments went through economic hardships -he called him asking for explanations- and also aware that the money that increased his personal patrimony was destined to meet the needs of a person with a great disability ”, and those of women.
It adds that the convict, upon learning that the woman had gone to a lawyer, “went to Valladolid and obtained her signature on numerous receipts made by himself, with the sole purpose of justifying the alleged delivery of the money extracted from the accounts to the injured party.
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