Analysis of Judgment No. 26180 of 2024: Undue Retention of Public Grants and Criminal Relevance

The judgment No. 26180 of May 23, 2024, by the Court of Cassation, deposited on July 3, 2024, provides significant insights into the issue of criminal liability concerning the receipt of public grants. In particular, the Court clarified the concept of undue retention of legitimately received grants, excluding the configurability of the crime under Article 316-ter of the Penal Code and outlining the conditions under which a behavior may be considered criminally relevant.

The Regulatory Context and the Judgment

The crime of undue perception of public disbursements is governed by Article 316-ter of the Penal Code, which punishes anyone who improperly appropriates public grants. However, the Court specified that a person who retains legitimately received grants is not punishable unless undue acquisition is demonstrated. The reasoning of the judgment emphasizes that the failure to communicate subsequent causes of expiration from the received grant may give rise to the crime of embezzlement, pursuant to Article 316-bis of the Penal Code.

Undue retention of legitimately received public grants - Configurability of the crime under Article 316-ter of the Penal Code - Exclusion - Reasons. The crime of undue perception of public disbursements under Article 316-ter of the Penal Code is not constituted by the undue retention of legitimately received public grants, with only their undue acquisition assuming criminal relevance. (In its reasoning, the Court specified that the failure to communicate subsequent causes of expiration from the regularly received grant may configure the crime of embezzlement under Article 316-bis of the Penal Code, where the disbursement was subject to a binding destination).

Implications of the Judgment

This judgment has significant implications for individuals receiving public grants. It is essential to distinguish between undue acquisition and undue retention. In particular, if an individual has received a grant legitimately but subsequently a cause of expiration occurs, the mere failure to communicate that cause does not, by itself, constitute the crime of undue perception, but may configure the crime of embezzlement if the grant was subject to specific binding destinations.

  • Undue acquisition: entails criminal liability.
  • Undue retention: not criminally relevant if the grants were received legitimately.
  • Failure to communicate expiration: may constitute the crime of embezzlement.

Conclusions

Judgment No. 26180 of 2024 represents an important clarification regarding liability for undue perception of public grants. It clearly distinguishes between behaviors that are criminally relevant and those that, while potentially problematic, do not constitute the crime provided for in Article 316-ter of the Penal Code. This clarification is crucial for recipients of public grants, who must be aware of their responsibilities and the potential risks associated with the management of such sums.

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