Judgment No. 19949 of 2023: Theft or Embezzlement in Case of Property Confiscation?

Judgment No. 19949 of March 21, 2023, by the Court of Cassation raises important questions regarding the criminal liability of the owner of a confiscated property in relation to the removal of goods from it. In particular, the Court ruled that the removal of furnishings, such as doors and fixtures, by the owner of a property subject to confiscation constitutes the crime of theft and not embezzlement. But what does this decision concretely mean and what are the implications for the individuals involved?

The Regulatory and Legal Context

In ruling on the matter, the Court referred to Article 624 of the Criminal Code, which defines theft as the removal of another's property. The peculiarity of the case at hand lies in the fact that the owner of a confiscated property does not have the right to freely dispose of the goods contained therein. Consequently, their conduct is criminally relevant, as the power of use and disposal is lost, leaving room for liability for theft.

Removal of furnishings by the owner of a confiscated property - Liability for theft - Existence - Reasons. The conduct of removing doors, fixtures, and other architectural elements by the owner of a property subject to a final confiscation order constitutes the crime of theft, not embezzlement, as the aforementioned individual does not have the power to use and dispose of the property autonomously, outside the supervisory and control powers of the entity exercising dominion over it.

Differences Between Theft and Embezzlement

It is essential to understand the differences between theft and embezzlement to correctly frame the judgment. Here are some key points:

• Theft: involves the removal of another's property with the intent to deprive the rightful owner of it.
• Embezzlement: occurs when a person appropriates another's property of which they have possession, but not ownership.
• Confiscation: the confiscated property is no longer at the owner's disposal, and they lose the right to dispose of it.

The Court clarified that, in case of confiscation, the owner has no power of disposal over the assets, making their act of removal criminally relevant as theft.

Conclusions

Judgment No. 19949 of 2023 represents an important step in the interpretation of criminal law relating to property offenses. It emphasizes the importance of respecting confiscation orders and clarifies that the owner of a confiscated property cannot act as if they were still the rightful owner. This decision not only offers greater legal certainty but also serves to preserve the integrity of confiscation measures, protecting the rights of the entities responsible for controlling confiscated assets. In an ever-evolving legal landscape, it is crucial for legal professionals to consider such developments to ensure proper assistance to their clients.