PECULATION. - Qualified theft by one who, being a public official or entrusted with a public service and having by reason of his office or service the possession of money or other movable property belonging to the public administration, appropriates it or diverts it to his own profit or that of others. The particular characteristic of peculation therefore consists in the unlawful taking of property committed with the aggravating circumstance of abuse of power and of trust.
Like theft, peculation too is morally condemnable, constituting in the first place an offense against justice and charity, eminently social virtues, for which reason they must be respected also and above all in regard to the State, that is to say, to the generality of citizens, and in the second place being realized in a violation of the right of property of others (the public administration).
I. HISTORICAL NOTES
In very ancient Roman law, and specifically in a period prior to the introduction of coinage, peculation consisted in seizing public livestock, and only later did it denote the anferre vel intercipere vel in rem suam vertere of a public thing, belonging to the Roman people, that is to say to the Roman State (D. 50. 16. 4 and 178; 48. 13. 5; 50. 16. 15 and 16). A particular legal qualification of the active subject of the offense was not an essential element for the crime of peculation; but if such a crime was committed by a magistrate or his subordinate, the sanction was aggravated. Peculation was several times the object of legislation; under Caesar or Augustus a Lex Iulia de peculiis et de sacrilegis et de residuis reorganized the whole matter; the penalty, at first pecuniary, was made harsher in the period of the absolute empire, reaching even death or deportation. The repression of peculation was very severe also in our intermediate law. In Venice (14th century) the condemnation was infamous. By reaction, however, the penalty for peculation was subsequently very mild in the Piedmontese Constitutions of the 18th century and in the laws of Peter Leopold of Tuscany and of Joseph II.
II. ITALIAN CRIMINAL LAW
Italian criminal law regards p. [peculation] as a crime exclusive to public officials or to persons entrusted with public services, committed to the detriment of the public administration. The essential elements of the offense are the possession of money or other movable property by reason of the office or service and the appropriation or misappropriation of it. Misappropriation is meant to signify the diversion, carried out by the subject, of the movable property or money to a purpose other than that for which it was intended, in order to procure a profit for himself or for others.
A necessary precondition of p. is that the public official or the person entrusted with a public service be competent or authorized to receive the entrustment of the property or money, the material object of the crime, by reason of his own office or service. In the absence of the principle of entrustment, the crime of p. will not exist; but the criminal act may be charged as aggravated theft (arts. 625, no. 7 and 61, no. 9 of the Penal Code) or as aggravated misappropriation (arts. 646 and 61, no. 11). The money or other movable property belonging to the public administration constitutes the material object of the crime, while the specific object of the criminal protection, in relation to such crime, is the public interest concerning the normal functioning of the public administration.
The current Italian Penal Code, putting an end to a question that was debated under the rule of the Penal Code of 1889 (art. 168), regulates the crime of p. in arts. 314 and 316, while in art. 315 it contemplates, as a distinct crime, malversation to the detriment of private individuals. P. is punished with imprisonment (up to ten years) and with a fine. The conviction entails, as an accessory penalty, perpetual disqualification from public offices; which may, however, be temporary if, on account of extenuating circumstances, imprisonment is imposed for a period of less than three years.
III. IN CANON CRIMINAL LAW
Peculation is a crime of mixed forum (mixti fori). The CIC, in fact, since it assumes that the public patrimony and that of private individuals are suitably protected by national criminal codes, limits itself to protecting the ecclesiastical patrimony by penal law and requires only that, with the obligation to repair the damage remaining firm (firmo onere reparandi damna), canonical penalties be added to the charge of those condemned by the tribunals of the State for the graver offenses, among which it also considers qualified theft. Canon 2354 § 1 accordingly provides that a layperson condemned for qualified theft is barred from performing acts that can have any legitimate value in the canonical forum and is deprived of any office in the perfect society of the Church. In § 2 it is then stated that a cleric who has made himself guilty of the same crime may be condemned, according to the gravity, with penances, censures, deprivation of offices, of benefices and of dignities, not excluding deposition. Here too canon 2198 is fundamental, on the competence of penal jurisdiction on the part of ecclesiastical and civil authority, which lays down the general norm according to which a crime that violates a law of the two societies can be punished by both powers; from this derives the applicability of the other rule, of a procedural nature, whereby in causes of mixti fori prevention (praeventio) takes place.
A case identical to that regulated by the Italian Penal Code is not found in the CIC. A certain affinity can be found in canon 2408, where it is said that he who exacts more than is due for taxes or increases them must be gravely fined and, if a recidivist, suspended from office or removed, as the case may be, with the obligation to restore the wrongly taken remaining firm.
The said affinity is suggested by the following criteria. The crime provided for by the penal CIC must logically be perpetrated by one who is placed in charge of an office and therefore has the powers to administer it, among which are those of exacting the means suited to that purpose. To exact taxes, moreover, in a measure higher than the fixed one, or to demand them outside the cases provided for, logically suggests the intent of procuring a profit. The increase or the illegitimate demand is determined, finally, by an abuse of power. And this is clearly demonstrated both by the placement of the canon under title XIX, which treats precisely of abuse of power or of ecclesiastical office, and by the fact that canon 1507 attributes solely to the provincial Council or to the Episcopal Conference the faculty of determining the taxes for the various acts of ecclesiastical jurisdiction, to which must be added the approval of the Holy See. Canon 736 adds that beyond the limits, as fixed above, the minister of the Sacraments may not exact or demand anything, for any cause or occasion, directly or indirectly. Still graver are the canonical penalties in cases in which the danger or an act of simony manifests itself.
Bibliography2 works
Francesco Ercolani