Embezzlement and Subjective Element: Analysis of the Supreme Court Ruling

The case at hand, addressed by the Supreme Court of Cassation with ruling no. 46222 of November 16, 2023, concerns the crime of embezzlement, a matter of significant importance in criminal law. The decision focuses on the subjective element of the crime, analyzing the conduct of A.A., director of administrative services at an institution, accused of misappropriating a sum of money to which she had access. The Court of Appeal of Milan, initially, had acquitted the defendant due to lack of intent, but the Supreme Court upheld the Public Prosecutor General's appeal, drawing attention to the need for a more rigorous evaluation of intent.

The Concept of Embezzlement

Embezzlement, governed by Article 314 of the Criminal Code, is characterized by the unlawful appropriation of public money or assets by a public official. For this crime to be established, the presence of the subjective element is fundamental, meaning the awareness and will to appropriate what does not belong to oneself. In the case of A.A., the Court emphasized that the subjective element cannot be excluded either by the restitution of the sums or by the alleged anticipation of sums owed.

Analysis of the Ruling

The generic nature of the intent for the crime of embezzlement means that, for the subjective element to be established, it is sufficient for awareness and will to relate to the act of appropriation.

In particular, the Supreme Court of Cassation highlighted how the Court of Appeal had misinterpreted several pieces of evidence. Despite acknowledging objectively unlawful conduct, the Court of Appeal had erroneously excluded intent, confusing the motives that might have driven A.A. to commit the act with the actual will to appropriate the sum. According to the Supreme Court, acknowledging the irregularity of the transaction and the restitution of the sums are not sufficient to demonstrate the absence of intent.

Implications and Conclusions

This case serves as a reminder of the importance of a thorough analysis of the subjective element in embezzlement offenses. The Supreme Court clarified that the motives that led an individual to commit an act cannot justify the illegality. Furthermore, the ruling underscores the importance of considering the concrete circumstances and available evidence. The review of the ruling with referral to the Court of Appeal of Milan for a new trial represents a fundamental step in ensuring the correct application of the law.