The Judgment of the Court of Cassation Pen. No. 25169 of 2023: Embezzlement and Availability of Money

The recent ruling by the Court of Cassation, No. 25169 of 2023, offers an important reflection on the distinction between legal and material availability in the context of the crime of embezzlement. The ruling concerns the case of A.A., the owner of a lottery ticket outlet, accused of appropriating 15,700 Euros, an amount received in the capacity of a public service officer.

The Case of A.A. and the Judgment of the Court of Appeal

Specifically, A.A. had been convicted for failing to deposit the amount collected to the Monopoly Office, claiming that a large part of the bets came from his personal gaming, without an actual deposit. The Court of Appeal of Turin, while acknowledging that part of the sums had not entered into his availability, nonetheless deemed A.A. responsible for the crime of embezzlement. The Court referred to the jurisprudential orientation according to which legal availability also includes material availability.

The legal availability of money must be interpreted as the ability to dispose of the asset, even in the absence of material possession.

The Decision of the Court of Cassation: Annulment for Non-Existence of the Fact

However, the Court of Cassation accepted A.A.'s appeal, annulling the conviction because the fact does not exist. The Court clarified that the owner of the lottery outlet cannot be considered as a user of it, since the money collected as a game cannot be regarded as appropriated by the individual by virtue of his role. As the money is public, the defendant never had legal availability of the money in question, as its use was limited to personal gaming activities.

  • Embezzlement is only configured if there is an appropriation of public money.
  • Legal availability cannot be confused with material availability.
  • Previous jurisprudence establishes that a public service officer is liable when acting "uti dominus".

Conclusions

The judgment No. 25169 of 2023 of the Court of Cassation represents an important clarification on the nature of the crime of embezzlement, highlighting the limits of legal availability compared to material availability. The restrictive interpretation of legal availability, as established by the Court, may influence future decisions in similar cases, emphasizing the importance of a thorough analysis of the circumstances in which an appropriation of public assets occurs.

Bianucci Law Firm