PECULATO. — Qualified theft committed by a public official or a person entrusted with a public service who, by reason of his office or service, possesses money or another movable object belonging to the public administration and appropriates it or diverts it for his own or another’s benefit. The particular characteristic of p. thus consists in the unlawful taking of an asset, committed with the aggravating circumstance of an abuse of authority and trust.
Like theft, p. too is morally reprehensible, since it constitutes, first of all, an offense against justice and charity, eminently social virtues that must therefore be respected also, and above all, with regard to the State—that is, the body of citizens—and, secondly, since it entails a violation of another’s right of ownership (the public administration).
I. HISTORICAL OUTLINE
In the most ancient Roman law, and specifically in a period preceding the introduction of coinage, p. consisted in taking possession of public livestock; only later did it signify anferre vel intercipere vel in rem suam vertere a public thing 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). A particular legal status of the active subject was not an essential element of the offence of p.; but if the offence was committed by a magistrate or one of his subordinates, the penalty was increased. P. 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 made more severe during the period of the absolute Empire, eventually extending to death or deportation. The repression of p. was also very strict in our intermediate law. In Venice (14th century), the sentence was infamous. In reaction, by contrast, the penalty for p. was subsequently 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 peculation a crime restricted to public officials or persons entrusted with a public service, committed to the detriment of the public administration. The essential elements of the offence are possession of money or another movable object by reason of the office or service, and the appropriation or diversion thereof. Diversion signifies the disposition, by the subject, of the movable object or money toward a purpose different from that for which it was intended, in order to procure a profit for himself or for others.A necessary prerequisite of peculation is that the public official or person entrusted with a public service be competent or authorized to receive the custody of the object or money, the material object of the crime, by reason of his office or service. In the absence of the principle of entrustment, the crime of peculation will not exist; but the criminal act may be charged as aggravated theft (arts. 625, no. 7, and 61, no. 9 C. P.) or as aggravated fraudulent appropriation (arts. 646 and 61, no. 11). Money or another movable object belonging to the public administration constitutes the material object of the offence, whereas the specific object of criminal 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 question debated under the authority of the Penal Code of 1889 (art. 168), regulates the crime of peculation in arts. 314 and 316, while in art. 315 it establishes, as a distinct offence, misappropriation to the detriment of private persons. Peculation is punished by imprisonment (up to ten years) and a fine. The conviction entails, as an accessory penalty, perpetual disqualification from public office; this may, however, be temporary if, owing to mitigating circumstances, imprisonment for less than three years is imposed.
III. IN CANON PENAL LAW
Peculatus is a mixti fori offense. The CIC, appropriately presupposing that the public and private patrimony are adequately protected by the national penal codes, limits itself to protecting ecclesiastical property by penal means and requires only that, firmo onere reparandi danna, canonical penalties be added against those convicted by the tribunals of the State for the more serious offenses, among which it also includes qualified theft. Thus can. 2354 § 1 provides that a layman convicted of qualified theft is excluded from performing acts that may have any legitimate value in the canonical forum and is deprived of any office in the perfect society of the Church. § 2 then states that a cleric who has made himself guilty of the same offense may be sentenced, according to its gravity, to penances, censures, deprivation of offices, benefices, and dignities, not excluding deposition. Here too can. 2198, concerning the competence of the ecclesiastical and civil authorities with regard to criminal jurisdiction, is fundamental: it establishes the general rule according to which an offense that violates a law of either society may be punished by both authorities; from this follows the applicability of the other rule, procedural in nature, according to which, in mixti fori cases, priority of jurisdiction applies.A legal provision identical to that regulated by the Italian Penal Code is not found in the CIC. A certain affinity may be found in can. 2408, which states that anyone who demands more than is due in taxes, or increases them, must be heavily fined and, if a repeat offender, suspended from office or removed, as the case may be, without prejudice to the obligation to return what was wrongly taken.
This affinity is suggested by the following considerations. The offense provided for by the CIC penal law must logically be perpetrated by someone placed in charge of an office and therefore possessing the powers to administer it, including those of demanding the means appropriate to that purpose. Demanding taxes in excess of the established amount, or demanding them outside the cases provided for, logically suggests an intention to procure a profit. The increase or illegitimate demand is, finally, determined by an abuse of power. This is clearly demonstrated both by the placement of the canon under Title XIX, which specifically deals with the abuse of power or ecclesiastical office, and by the fact that can. 1507 grants only to the provincial Council or the Episcopal Conference the power to determine the taxes for the various acts of ecclesiastical jurisdiction, to which the approval of the Holy See must be added. Can. 736 adds that, beyond the limits established above, the minister of the Sacraments may neither demand nor request anything, for any cause or occasion, directly or indirectly. The canonical penalties are still more severe in cases where the danger or an actual instance of simony becomes evident.