EMBEZZLEMENT. - Qualified theft committed by a public official or a person entrusted with a public service who, by reason of their office or service, possesses money or other movable property belonging to the public administration, and appropriates it or diverts it for their own benefit or that of others. The distinctive feature of embezzlement thus lies in the unlawful misappropriation of property, aggravated by the abuse of power and trust.
Like theft, embezzlement is morally condemnable, as it constitutes, in the first place, an offense against justice and charity—virtues that are eminently social and must be respected, especially in relation to the State, that is, the community of citizens. Secondly, it involves a violation of another’s right to property (that of the public administration).
I. Historical Notes
In the most ancient Roman law, and precisely in a period prior to the introduction of money, embezzlement consisted in the appropriation of public livestock, and only later did it come to denote the auferre, intercipere, or in rem suam vertere of public property belonging to the Roman people, that is, to the Roman State (D. 50, 16, 4 and 178; 48, 13, 5; 50, 16, 15 and 16). An essential element for the crime of embezzlement was not a particular legal qualification of the active subject; however, if the crime was committed by a magistrate or their subordinate, the penalty was aggravated. Embezzlement was repeatedly the subject of legislation; under Caesar or Augustus, a *Lex Iulia de peculiis et de sacrilegis et de residuis* reorganized the entire matter. The penalty, initially pecuniary, was intensified during the period of absolute empire, reaching as far as death or deportation. The repression of embezzlement was also very strict in our intermediate law. In Venice (14th century), the conviction was infamous. Conversely, the penalty for embezzlement was later made very mild in the Piedmontese Constitutions of the 18th century and in the laws of Pietro Leopoldo of Tuscany and Giuseppe II.II. Italian Criminal Law
Italian criminal law considers embezzlement a crime exclusive to public officials or those entrusted with public services, committed to the detriment of the public administration. The essential elements of the crime are the possession of money or other movable property by reason of office or service and the appropriation or diversion thereof. Diversion signifies the act by which the subject diverts the movable property or money to a purpose other than that for which it was intended, in order to procure a benefit for themselves or others.A necessary prerequisite for embezzlement is that the public official or person entrusted with a public service is competent or authorized to receive the entrusted property or money, the material object of the crime, by reason of their office or service. If the principle of entrusted possession is lacking, the crime of embezzlement will not be established; however, the criminal act may be imputed as aggravated theft (art. 625, no. 7 and 61, no. 9 of the Penal Code) or as aggravated misappropriation (art. 646 and 61, no. 11). The damage or other movable property belonging to the public administration constitutes the material object of the crime, while the specific object of penal protection, in relation to this crime, is the public interest concerning the normal functioning of the public administration.
The current Italian Penal Code, putting an end to a debate that arose under the Penal Code of 1889 (art. 168), regulates the crime of embezzlement in articles 314 and 316, while article 315 contemplates, as a distinct crime, misappropriation to the detriment of private individuals. Embezzlement is punishable by imprisonment (up to ten years) and a fine. The conviction entails, as an accessory penalty, perpetual disqualification from public office; however, this may be temporary if, due to mitigating circumstances, imprisonment of less than three years is imposed.
III. In Canon Law
Embezzlement is a *delictum mixti fori*. The *Codex Iuris Canonici*, in fact, deeming it appropriate that public and private patrimony be protected by national penal codes, limits itself to penal protection of ecclesiastical patrimony and requires only that, *firmo onere reparandi damna*, canonical penalties be added against those convicted by state courts for the most serious crimes, among which qualified theft is included. Canon 2354 §1 therefore provides that a layperson convicted of qualified theft is excluded from performing any acts that may have any legitimate value in the canonical forum and is deprived of any office within the perfect society of the Church. §2 then states that a cleric who has committed the same crime may be punished, according to the gravity of the offense, with penances, censures, deprivation of offices, benefices, and dignities, not excluding deposition. Here too, Canon 2198 on the competence of ecclesiastical and civil authority in penal jurisdiction is fundamental; it establishes the general rule according to which a crime that violates a law of either society may be punished by both powers. From this derives the applicability of another procedural rule, according to which in *delicta mixti fori* the principle of prevention applies.A case identical to that regulated by the Italian Penal Code is not found in the *CIC*. A certain affinity may be found in Canon 2408, which states that whoever exacts more than is due for taxes or increases them shall be gravely fined, and, if a repeat offender, shall be suspended from office or removed, as the case may be, with the obligation to restore what was wrongfully taken.
This affinity is suggested by the following criteria. The crime envisaged by canonical penal law must logically be perpetrated by one who is entrusted with an office and therefore has the powers to administer it, including those to exact the means necessary for that purpose. The act of exacting taxes in an amount exceeding that fixed or requesting them outside the prescribed cases logically suggests an intent to procure a benefit. The unlawful increase or request is determined, finally, by an abuse of power. This is clearly demonstrated both by the placement of the canon under Title XIX, which deals precisely with the abuse of ecclesiastical power or office, and by the fact that Canon 1507 grants only to the Provincial Council or the Episcopal Conference the faculty to determine the taxes for various acts of ecclesiastical jurisdiction, to which must be added the approval of the Holy See. Canon 736 adds that beyond the limits thus fixed, a minister of the sacraments cannot exact or request anything, for any cause or occasion, directly or indirectly. Even more severe are the canonical penalties in cases where danger or an act of simony is manifested.
