Embezzlement: What It Means and Penalties

Understanding Embezzlement: What It Means and Legal Consequences

Embezzlement is a criminal offense defined in the Penal Code that can only be committed by a public official or a person entrusted with a public service, and never by a private citizen.
Going into details, as reported by legal sources, it involves:

“cheating, managing dishonestly.
In legal terms, it’s the crime of a public official or a person entrusted with a public service who appropriates money or other movable property of which they have possession or control by virtue of their office or service.”

For instance, embezzlement occurs when a municipal treasurer or another official handling state funds improperly takes sums belonging to the public entity.
Another example is when a public manager forces a subordinate to dedicate a significant portion of work hours to ensure personal benefits for the manager, thereby diverting useful time from carrying out their own duties.

The Legal Provisions on Embezzlement

According to Article 314 of the Penal Code, embezzlement is an offense committed by a public official or a person entrusted with a public service who:

“having possession or control of someone else’s money or other movable property by virtue of their office or service, appropriates it, is punished with imprisonment from four years to ten years and six months.
The penalty of imprisonment from six months to three years applies when the offender has acted solely to make temporary use of the property, which was immediately returned after temporary use.”

The second paragraph of Article 314 introduces the concept of embezzlement for personal use, which was established in 1990.
This type of crime involves the temporary use of misappropriated goods or money, which are returned at a later stage.
Being a less severe offense, the penalty is also lighter, as explained further.

To prevent possible misinterpretations, through reform number 86 of 1990, the crime of embezzlement by diversion was abolished.
This occurs when the material object of the crime, whether money or another asset, is allocated for a purpose different from the initially intended one, pursuing objectives unrelated to institutional purposes.

Punishment for Embezzlement in the Penal Code

A public official or a person entrusted with a public service accused of embezzlement may face imprisonment from 4 to 10 years and 6 months.
The applied penalty also differs based on whether the misappropriation is temporary or permanent.
In the latter case, the individual may face imprisonment from 3 to 10 years.
For embezzlement for personal use, the imprisonment ranges from 6 months to 3 years.

The imprisonment period is lower even in cases of sum restitution.
Particularly, if the offender acted with the sole intention of momentarily using public money or property, they risk imprisonment from 6 months to 3 years.

Embezzlement is a crime against public administration that is clearly and heavily punished by the legal system.
Conviction for such an offense leads to disqualification from public offices.
In case of committing this type of crime, it is essential to consult a criminal lawyer to better understand the risks and possible solutions.

Statute of Limitations for Embezzlement

The term ‘statute of limitations’ refers to an institution provided for both in civil and criminal law.
Concerning criminal law, it entails the state’s waiver to enforce its punitive claim due to a specific time lapse since the commission of the crime.
Focusing on embezzlement, this crime is subject to limitation within 10 years and 6 months.
The timeframes amount to 6 years in the case of embezzlement for personal use.

It is important to remember that the prescription corresponds to the maximum sentence established by the Penal Code.
Unlike civil law, criminal law does not interrupt prescription during the trial, which means that a crime like embezzlement becomes time-barred within the timeframe corresponding to the maximum penalty set for the same offense, in this case, 10 years and 6 months.

Distinguishing Embezzlement from Misappropriation

As previously mentioned, embezzlement can only be committed by a person holding the qualification of a public official or at least by someone entrusted with a public position.
With regard to misappropriation, as specified in Article 646 of the Penal Code, it refers to:

“Whoever, to procure an unjust profit for themselves or others, appropriates someone else’s money or movable property of which they have, in any capacity, possession, is punished, upon complaint by the injured party, with imprisonment up to three years and with imprisonment from two to five years and a fine from €1,000 to €3,000.”

The main distinction between embezzlement and misappropriation lies in the active subject, namely the person committing the offense.
Embezzlement can only be committed by a public official, while misappropriation can be committed by any citizen.
Moreover, the penalty for misappropriation is less severe compared to embezzlement.
By establishing the crime of embezzlement, the legislator aimed to ensure the impartiality of the Public Administration.