Embezzlement does not coincide with any irregularity committed by someone who works for an administration or manages public resources. To understand whether the accusation provided for by Article 314 of the criminal code is well-founded, it is necessary to clarify who had the money or the asset, for what reason they could dispose of it, and what use they made of it.
I will explain how to distinguish appropriation from simple occasional access, when temporary use embezzlement may take shape, and why restitution does not automatically solve the problem. We will also see what changes if resources remain allocated to a different public purpose, what consequences accompany the penalty, and which facts become decisive for setting up an informed defense.
When Embezzlement Occurs
The requirements must coexist. Embezzlement requires a public official or a person entrusted with a public service, the possession or availability of money or another movable asset belonging to others for reasons of office or service, and an act of appropriation. The regulations and the main penalty result from Article 314 of the criminal code, as amended by Law No. 69 of 2015.
The asset must belong to others, but it does not necessarily have to belong to the public administration. It may also concern private money or assets entrusted to a public entity in the performance of its functions. What matters is that the agent is not the owner and that they can dispose of it precisely thanks to the position held.
Appropriation is the central step. It occurs when the subject treats the asset as their own, removes it from the function to which it was allocated, or permanently transfers it to their own availability or that of a third party. An accounting anomaly, a violated procedure, or a delay in reporting are not enough on their own: conscious appropriative conduct must be proven.
Who May Be Held Liable for the Offence
Embezzlement is a specific crime: as the main offender, only someone who holds the qualification of public official or person entrusted with a public service can commit it. The first figure exercises a public function with deliberative, authoritative, or certifying powers; the second performs a public service without the typical powers of a public official, excluding purely material activities.
The qualification depends on actual functions, not just the name of the position, the contract, or the public nature of the employer. Even those who operate for a formally private company may assume a public law qualification limited to certain activities. Conversely, being an employee of a public entity does not automatically make every conduct traceable to Article 314.
Even an outsider can be an accomplice in embezzlement if they knowingly participate in the appropriation by exploiting the qualified relationship that the public agent has with the asset. However, it is necessary to prove the contribution given to the fact and the awareness of the other accomplice's functions: personal closeness or a received advantage are not sufficient on their own.
Possession and Availability for Reasons of Office
It is not necessary to physically have the money in hand. Availability can also be legal: this occurs, for example, when a person can order a payment, authorize a bank transfer, use operational credentials, or issue instructions that allow moving the asset. The concrete possibility of disposal matters more than the place where the money is kept.
A link with the function must exist. Availability is qualified when it derives from the office or service, even if exercised de facto or without complying with all internal rules. On the other hand, merely fortuitous or occasional access, devoid of a functional relationship with the asset, remains outside embezzlement. This distinction is examined in depth by Supreme Court of Cassation ruling no. 34036 of 2025.
Formal competence is not the only criterion. If an employee continues in concrete terms to manage collections, keys, credentials, or payment instruments, the lack of a regular delegation does not necessarily exclude availability for service reasons. The situation of someone who accidentally finds a code or takes advantage of negligent custody without having any task connected to the resource is different.
The defense must reconstruct the real relationship between function and asset. Service orders, delegations, IT profiles, access logs, and authorization rules help understand who could effectively dispose of the resources. They do not serve as a simple collection of documents: each piece of data must clarify whether access was functional, occasional, shared, or attributed to another person.
Misappropriation for Temporary Use: When Restitution is Truly Immediate
Misappropriation for temporary use is an autonomous category provided for by the second paragraph of Article 314. It occurs when, from the very beginning, the agent only wants to use the thing momentarily and, once use is finished, immediately returns that very asset. The lesser penalty depends on these joint requirements, not merely on subsequent restitution.
The initial intent is decisive. It must appear that the subject did not want to permanently acquire the thing nor permanently deprive the administration of it. Duration of use, method of withdrawal, attempts at concealment, distance between use and return, and reasons for the delay make it possible to distinguish temporary employment from true appropriation.
Money does not normally fall under temporary use embezzlement. The rule requires the restitution of the exact same thing, whereas someone who spends a sum and subsequently pays an equivalent amount does not physically return the same asset. Reimbursement may have significance regarding the consequences of the fact, but it does not automatically transform the appropriation of money into the less serious figure.
Not every personal use constitutes the crime. First, it must be ascertained whether the use was authorized, tolerated by effectively applicable rules, or justified by a situation incompatible with the intent to appropriate the asset. If use is improper, brief, and followed without interruption by restitution, the second paragraph may come into play; if one of these elements is missing, the qualification changes.
Embezzlement and Different Allocation of Public Resources
Appropriating does not simply mean violating a spending rule. If money is removed from the public purpose to satisfy private interests of the agent or third parties, embezzlement may be configured. If instead resources remain employed for a public purpose, but different from the one strictly established by law, the distinct category of Article 314-bis must be considered.
Article 314-bis has been in force since August 10, 2024. Outside of embezzlement cases, it punishes the allocation of money or a movable asset to a use other than that imposed by specific legislative provisions devoid of discretionary margins, when the agent intentionally procures an unfair patrimonial advantage or unfair damage. The text can be consulted in Article 9 of Decree-Law No. 92 of 2024.
Concrete allocation separates the two hypotheses. A direct transfer to private expenses indicates possible appropriation. Movement towards another public intervention may instead require the examination of Article 314-bis, provided all its requirements are present. If the law left real administrative discretion, the merely contested choice is not enough to constitute this offense.
The date of the fact is not secondary. For conduct prior to August 10, 2024, it is necessary to compare the rules in force at the time they were committed with subsequent ones, applying the principles on the succession of criminal laws. It is not correct to automatically assign a new qualification without verifying the purpose of the expenditure, advantage or damage, and applicable temporal discipline.
Penalties and Consequences Beyond Imprisonment
Embezzlement under the first paragraph is punished with imprisonment from four years to ten years and six months. For temporary use embezzlement, the penalty is from six months to three years. The considerable difference makes it essential to establish whether there was definitive appropriation or only momentary use accompanied by the immediate restitution of the same thing.
Value alone does not decide the existence of the crime. Even a limited sum can assume criminal significance if all elements of Article 314 are proven. Extent of profit, duration, methods of conduct, damage caused, and subsequent repair nevertheless affect the determination of the penalty and the possible mitigating factor of particularly minor nature of the offence provided for by Article 323-bis.
Conviction produces patrimonial effects. Confiscation of the price or profit may apply, including by equivalent when conditions are met, and financial reparation in favor of the injured administration, without prejudice to compensation for damages. Restitution must therefore be coordinated with seizure, confiscation, and civil party claims.
Accessory penalties can affect public function. For embezzlement under the first paragraph, Article 317-bis links consequences such as disqualification from public offices and incapacity to contract with the public administration to the conviction, according to duration, inflicted penalty, and recognized circumstances. An assessment focused solely on years of imprisonment therefore risks ignoring relevant professional effects.
How a Defense Strategy is Built
The first question concerns the elements of the crime. The prosecution must prove public qualification, availability for reasons of office, the asset belonging to others, appropriation, and intent. If even one of these steps is missing, recalling disorderly management or an administrative violation is not enough to support liability for embezzlement.
The reconstruction of movements must be concrete. Delegation, payment cause, bank tracking, IT registers, authorizations, reports, and communications can show who issued the order, who benefited from it, and what destination was planned. For material assets, delivery, duration of use, place of custody, availability of keys, and moment of restitution also matter.
Error is not equivalent to intent. An accounting duplication, a rule interpreted in a plausible way, or reliance on an authorization may be incompatible with the intent to appropriate, but they must find confirmation in the facts. A justification formulated only after the accusation, contradicted by concealment or false causes, has a different meaning than a previous documentary trail.
Legal qualification offers multiple alternatives. Facts may prove unrelated to the crime, constitute temporary use embezzlement, fall under undue allocation under Article 314-bis, or assume another qualification. The most favorable rule is not chosen in abstract terms: initial intent, effective destination, relationship with the asset, and moment of restitution are compared.
The choice of trial rite requires a complete assessment. Archiving, ordinary trial, abbreviated trial, or plea bargaining respond to different assumptions and consequences. In proceedings for embezzlement, the request for plea bargaining is subordinated to the full restitution of the price or profit; confiscation does not automatically replace it, as clarified by Supreme Court of Cassation ruling no. 20255 of 2025.
Restitution does not erase the already consummated fact. Repair can affect the penalty, economic consequences, and access to certain procedural solutions, but it must be planned knowing the contested amount and correct recipient. Similarly, spontaneous statements or approximate reconstructions can fix versions that are difficult to correct: it is better to preserve documents and the chronology of events first.
Frequently Asked Questions
Can a private individual be accused of embezzlement?
They cannot be its main author if they do not hold the required qualification, but they can be an accomplice in the crime with the public agent. The accusation must prove that they knowingly contributed to the appropriation and that they knew the qualified relationship between the other subject and the asset: receiving an advantage does not automatically prove complicity.
If I return the money, does the crime cease to exist?
No, subsequent restitution does not automatically erase an appropriation already carried out. It can affect the penalty, damage, patrimonial consequences, and the practicability of plea bargaining. However, it does not transform spent money into temporary use embezzlement, which requires momentary use of a thing and immediate restitution of the same asset.
What is the difference between embezzlement and temporary use embezzlement?
In embezzlement there is appropriation; in temporary use embezzlement, the agent wants from the very beginning to use the thing only momentarily and returns it immediately afterward. If restitution is late, impossible, or preceded by acts of concealment, the less serious figure may be excluded. The second paragraph does not concern money spent and then reimbursed.
Can an accounting error be considered embezzlement?
Error devoid of appropriative intent is not enough. Awareness of qualified availability and the intent to treat the money or asset as one's own must emerge. Causes, authorizations, previous communications, and effective destination make it possible to distinguish an error, an administrative violation, and intentional conduct.
What penalties are provided for embezzlement?
The first paragraph provides from four years to ten years and six months of imprisonment; temporary use embezzlement from six months to three years. Confiscation, financial reparation, compensation, and accessory penalties can be added to the penalty. Circumstances, value, methods of the fact, and reparatory conduct affect concrete treatment.
How to Address an Accusation
An accusation of embezzlement requires a precise chronology. It is useful to preserve delegations, orders, messages, reports, access logs, and data on movements without modifications, avoiding improvised explanations. If you need to understand which rule applies, what consequences are realistic, and which procedural choice to consider, you can contact me to examine the facts and relevant documents.