Tuesday, January 25

Two years in prison for the countess who appropriated a painting attributed to Van Dyck

The facade of the Supreme Court.

The facade of the Supreme Court.

The Criminal Chamber of the Supreme Court has confirmed the sentence to two years in prison for the aristocrat Cristina Ordovás, Countess of Ruiz de Castilla, for appropriating the picture ‘Anna Sophia, Countess of Carnarvon’, attributed to the painter Anton Van Dyck, which was deposited at his home by the owners of the work so that he could assess whether he wanted to acquire it.

The court thus dismisses the cassation appeal filed by the convicted person against the sentence of the Provincial Court of Madrid imposed by the aforementioned sentence of two years in prison for a crime of misappropriation and the payment of compensation of 165,000 euros, as civil liability, to the owners of the painting, in addition to a nine-month fine with a daily fee of 12 euros.

The proven facts show that In 2014, the owners of the painting authorized that the work, which had been carried out between 1633 and 1641, will be deposited in the home of the condemned, who had shown interest in her, in case she wanted to buy it. The woman incorporated the painting into his heritage Without the consent of its owners, it did not pay the price of 165,000 euros that it subsequently agreed with them and did not return it after having transferred it to third parties.

The Chamber indicates that, as reported by the Public Prosecutor, it follows from the contested judgment that “the accused was left purely and simply with a painting that did not belong to her; a painting that the owners had deposited at their home so that the accused could study whether to buy it or not, and so she actually decided to keep it, but directly and without going through civil contracting. ”

In the same way as when a trader leaves a consumer to take home a suit to try it on more slowly, to decide whether to buy it or not; and if once in his possession, the consumer decides to keep it for good, even though the label indicates the true price of the same, neither the sale has been concluded, nor does it prevent the illegal misappropriation from being consumed, when that moment in which the consumer decides to incorporate to his patrimony the good that had in deposit “, indicates the Room in the bases of law of the sentence.

And he adds that while it is true that the sale “for its perfection does not require the delivery of the price”, Yes, consent would have previously mediated to be bound to deliver it, “which has not happened in the proceedings,” they recall.

Not scam

It states that the requirements of the crime of misappropriation are met, and not fraud, since when the appellant took possession of the painting “she possessed it as a legitimate deposit; without the existence of deception prior to that possession having been proven.”

It adds that the Provincial Court of Madrid rationally concluded that the defendant received the painting on deposit in June 2014 and almost immediately handed it over to third parties, despite not having mediated the concert of wills that characterizes the sale, when the owners were still waiting for it to be decided; he took possession of the painting that he had in deposit definitively, without assuming the obligation to pay its price and expressing successive excuses about the reason for its non-return.

The Chamber also rejects the allegation that the penalty is disproportionate and recalls that special sanctions are imposed when the attack occurs against assets that make up the artistic, historical, cultural or scientific heritage. In this sense, he points out that even though the painting was not relevant in Anton Van Dyck’s work, “the fact of his participation in its creation and invoice, which, as is well known, is a painter who has portraits hanging on the walls of the Louvre, the Prado, the National Gallery, the Hermitage, the Rijksmuseum, the Uffizi Gallery …, and a huge number of other collections, their integration into the historical, artistic and cultural heritage, becomes mere obvious “.

Private vote

The sentence includes a private vote signed by justices Leopoldo Puente and Javier Hernández in which they argue that the accused should be acquitted of the crime of misappropriation. The two magistrates maintain that in this case the essential factual and normative support is lacking for this type of crime to be correctly applied.

They explain that it is true that the defendant “did not satisfy the sellers the agreed price.” “However, and naturally without prejudice to the civil consequences that such contractual breach entails, such a circumstance does not enable it to mutate into criminal conduct, through an interpretation that we consider extensive and hypertrophic of the regulatory precept of misappropriation,” they add.


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