Cass. pen., Sec. II, Judg., no. 46222/2023: Reflections on Embezzlement and the Subjective Element

The recent judgment of the Court of Cassation, no. 46222 of November 16, 2023, offers an important opportunity to reflect on the crime of embezzlement and the requirements that define its subjective element. The decision concerns the case of A.A., accused of having misappropriated a sum of money in her capacity as director of administrative services of an institution, but the appellate judge had excluded her liability due to lack of intent. However, the Court of Cassation upheld the appeal of the Public Prosecutor General, highlighting contradictions in the reasoning of the appellate judgment.

The Context of the Judgment

In the proceedings, the Court of Appeal of Milan had initially acquitted A.A. of the crime of embezzlement, holding that the contested transaction was a simple advance of sums owed. However, the Public Prosecutor General contested this interpretation, emphasizing that the subjective element of the crime had not been adequately considered. In particular, the appellate judge had erroneously confused the awareness and intent of misappropriation with the possible motives that had induced the defendant to act in that way.

The Court of Cassation clarified that the subjective element of the crime of embezzlement is determined by the awareness and intent to misappropriate sums of money, regardless of the motives for the action.

Analysis of the Subjective Element

According to Article 314 of the Criminal Code, embezzlement requires that the public official has possession of public money or assets and that there is the intent to misappropriate them. The Court highlighted that, even if A.A. had returned the sums, this did not exclude her liability, as the restitution occurred only after the charges were brought. Furthermore, the presence of false reasons in the payment orders further demonstrated the intent to misappropriate the sums.

• Objective element: existence of the crime ascertained.
• Subjective element: intent to misappropriate not excluded by restitution.
• Contradictions in the reasoning of the Court of Appeal.

Conclusions

Judgment no. 46222 of 2023 of the Court of Cassation represents an important clarification on the nature of intent in the crime of embezzlement. It emphasizes how the intent to misappropriate public assets cannot be absolved by personal justifications or motives, but must be examined based on objective evidence. The referral to another section of the Court of Appeal of Milan for a new trial will allow the case to be reviewed in light of these principles, thus ensuring a more rigorous application of the law.