Cass. pen., Sez. II, Sent., n. 46222/2023: Reflections on Embezzlement and the Subjective Element
The recent ruling of the Court of Cassation, no. 46222 of November 16, 2023, provides an important opportunity to reflect on the crime of embezzlement and the requirements that define its subjective element. The decision concerns the case of A.A., accused of having misappropriated a sum of money in her capacity as the director of administrative services of an institution, but the appellate judge had excluded her liability due to a lack of intent. However, the Court of Cassation accepted the appeal of the Attorney General, highlighting contradictions in the reasoning of the appellate decision.
The Context of the Ruling
In the proceedings, the Court of Appeal of Milan had initially acquitted A.A. of the crime of embezzlement, believing that the contested operation was merely an advance of amounts due. However, the Attorney General contested this interpretation, emphasizing that the subjective element of the crime had not been adequately considered. In particular, the appellate judge had erroneously confused awareness and intent to appropriate with the possible motives that led the defendant to act in that manner.
The Court of Cassation clarified that the subjective element of the crime of embezzlement is determined by the awareness and intent to appropriate sums of money, regardless of the motives for the action.
Analysis of the Subjective Element
According to Article 314 of the Penal Code, embezzlement requires that the public official has control over public money or assets and that there is the intent to appropriate them. The Court emphasized that, even though A.A. had returned the sums, this did not exclude her liability, as the return occurred only after the allegations. Furthermore, the presence of false reasons in the payment orders further demonstrated the intent to appropriate the sums.
- Objective element: existence of the crime established.
- Subjective element: intent of appropriation not excluded by the return.
- Contradictions in the reasoning of the Court of Appeal.
Conclusions
The ruling no. 46222 of 2023 by the Court of Cassation represents an important clarification on the nature of intent in the crime of embezzlement. It emphasizes that the intent to appropriate public assets cannot be absolved by justifications or personal motives, but must be examined based on objective evidence. The referral to another section of the Court of Appeal of Milan for a new judgment will allow for the case to be reviewed in light of these principles, thereby ensuring a more rigorous application of the law.
