Embezzlement and Subjective Element: Analysis of the Supreme Court Ruling
The case in question, addressed by the Supreme Court with ruling no. 46222 on November 16, 2023, concerns the crime of embezzlement, a topic of significant importance in criminal law. The decision focuses on the subjective element of the crime, analyzing the behavior of A.A., director of administrative services at an institution, accused of having misappropriated a sum of money for which she had control. The Court of Appeal of Milan, initially acquitting the defendant for lack of intent, was later challenged by the Supreme Court, which emphasized the need to evaluate intent more rigorously.
The Concept of Embezzlement
Embezzlement, governed by Article 314 of the Penal Code, is characterized by the unlawful appropriation of public money or goods by a public official. For this crime to be constituted, the presence of the subjective element is fundamental, that is, the awareness and intention to appropriate something that does not belong to them. In A.A.'s case, the Court emphasized that the subjective element cannot be excluded by the restitution of the amounts or by the alleged anticipation of due amounts.
Analysis of the Ruling
The generic nature of the intent in the crime of embezzlement implies that, for the configuration of the subjective element, it is sufficient for awareness and intention to pertain to the act of appropriation.
In particular, the Supreme Court highlighted how the Court of Appeal had misinterpreted several pieces of evidence. Despite recognizing an objectively unlawful conduct, the Court of Appeal had erroneously excluded intent, confusing the motivations that could have led A.A. to commit such an act with the actual intent to appropriate the sum. According to the Supreme Court, acknowledging the wrongdoing of the operation and the restitution of the amounts is not sufficient to demonstrate the absence of intent.
Implications and Conclusions
This case underscores the importance of a thorough analysis of the subjective element in embezzlement offenses. The Supreme Court clarified that the reasons that led a person to commit an act cannot justify the illegality. Furthermore, the ruling emphasizes the importance of considering the concrete circumstances and the available evidence. The review of the ruling with referral to the Court of Appeal of Milan for a new judgment represents a fundamental step in ensuring the correct application of the law.
