Analysis of Judgment Cass. pen., Sec. VI, no. 21986 of 2023: Embezzlement and Criminal Liability

Judgment no. 21986 of 2023 issued by the Court of Cassation offers an important reflection on embezzlement offenses, particularly regarding the defendant, A.A., who, as Director of General and Administrative Services in some schools, was convicted for misappropriation of public funds. The Court's decision, which confirmed the conviction on appeal, raises several legal issues, including the definition of availability of sums of money and the impact of mental illness on criminal liability.

Context of the Embezzlement Conviction

In the case at hand, the defendant is accused of altering the accounting records of educational institutions, issuing false payment orders, and appropriating sums paid by parents for educational trips. The Court of Cassation clarified that, despite the defendant claiming not to have had availability of the funds, Italian law (Art. 314 of the Criminal Code) defines embezzlement as the appropriation of money of which one has availability by reason of one's office.

• The defendant's conduct was classified as embezzlement, as her role gave her the ability to manage the sums, even in conjunction with the school principal.
• The attempt to reclassify the offenses as aggravated fraud was rejected by the Court, which emphasized the trust relationship inherent in the management of public funds.

Criminal liability for embezzlement is established even in the presence of joint availability of money by multiple public officials.

The Issue of Capacity to Understand and Will

A central aspect of the appeal concerns the defendant's alleged incapacity to understand and will, suffering from ludopathy. The defense argued that this mental disorder would have affected her ability to interact with money appropriately. However, the Court reiterated that to recognize a total or partial defect of reason, it is necessary to demonstrate a direct causal link between the disorder and the criminal conduct.

In this case, the Court found that:

• There was insufficient evidence that the sums misappropriated were used to fuel ludopathy.
• The disorder was diagnosed only after a significant portion of the offenses had been committed.

Conclusions

The judgment of the Court of Cassation no. 21986 of 2023 represents an important reference point for jurisprudence on embezzlement. It highlights not only the seriousness of illicit conduct by public officials but also the need for an accurate assessment of criminal liability in relation to mental health. The decision underscores how power and control dynamics within public administrations are fundamental to ensuring the proper management of public funds and community trust.