Embezzlement and Plea Bargaining: The Supreme Court (Judgment no. 20255/2025) on Profit Restitution

The Supreme Court of Cassation, with judgment no. 20255 of May 30, 2025, has provided a crucial interpretation on the admissibility conditions for plea bargaining in the crime of embezzlement. The ruling, presided over by Judge G. D. A. and reported by Judge R. A., clarifies the clear distinction between the restitution of the proceeds of the crime and confiscation, with direct implications for criminal justice and the protection of public assets.

Plea Bargaining for Embezzlement: Admissibility Condition

Plea bargaining (Art. 444 of the Code of Criminal Procedure) is a special procedure that allows for an agreement on a reduced sentence. Embezzlement (Art. 314 of the Criminal Code) occurs when a public official appropriates public property for official reasons, causing direct damage to public administration. Precisely because of this nature, the restitution of what has been misappropriated plays a fundamental role.

Judgment 20255/2025: Mandatory Full Restitution

The Court of Cassation, annulling without referral the decision of the Preliminary Hearing Judge of Arezzo, has unequivocally clarified the centrality of the full restitution of the proceeds of the crime as a prerequisite for plea bargaining in embezzlement cases. The maxim states:

In matters of plea bargaining, the full restitution of the proceeds of the crime, as a prerequisite for the admissibility of the alternative procedure when the settlement agreement concerns the crime of embezzlement, requires a necessary verification by the judge, as confiscation for an amount corresponding to the proceeds cannot be considered equivalent, with a remedial effect regarding the non-compliance with the condition. (In the reasoning, the Court specified that the amount of the proceeds to be restituted, as a condition for the admissibility of the procedure, must be that resulting from the indictment, unlike that subject to the confiscation order, which may be determined following evaluations entrusted to the presiding judge).

This ruling is decisive: the full restitution of the proceeds cannot be substituted by confiscation. The Court emphasizes that restitution must be effective, correspond to the amount of the indictment, and be verified by the judge as an unavoidable prerequisite. Confiscation, despite having a compensatory function, is a decision made at a later stage and with different criteria, and therefore cannot "cure" the non-compliance with such a stringent preliminary condition.

Practical Implications and Conclusions

The consequences of this judgment are significant:

• For defendants: The restitution of the proceeds is an indispensable obligation.
• For Public Prosecutors: It is necessary to verify the effective fulfillment of this condition.
• For Judges: They must actively ascertain full restitution, as they cannot consider confiscation as equivalent.

This decision strengthens the protection of public assets, aligning with established case law. Judgment no. 20255/2025 is an essential reference point, reiterating that the full restitution of the proceeds is a non-substitutable preliminary condition for plea bargaining in embezzlement cases, and reinforcing the principle of integrity and the priority of repairing damage to the community.