Embezzlement is the appropriation, use or disposal, for one’s own benefit or another’s, of money, valuables or assets managed or administered by the person concerned. A stock shortage or accounting irregularity alone is insufficient to establish the offence. The person’s duties, the entrusted assets, the specific transaction and the evidence of intent must be examined.

Article 295 of the Criminal Code

Article 295 provides imprisonment from two to seven years and disqualification from holding public office. It describes three alternative forms of conduct: appropriation, use or disposal of assets under the perpetrator’s management or administration. Attempt is punishable.

The basic offence’s status requirement uses the criminal-law definition of “public official” in Article 175. That definition is not identical to the ordinary meaning of an employee of a public institution. Subject to the statutory conditions, it may include people working for certain State-owned entities or performing a service of public interest. Actual duties and the applicable law must be checked.

Articles 308 and 309: variants affecting penalty limits

Article 308 extends certain service-related offences, including embezzlement, to persons carrying out an assignment, permanently or temporarily, paid or unpaid, in the service of persons covered by Article 175(2) or within any legal entity. In that situation, the special penalty limits are reduced by one third. Private-company employment alone does not automatically establish every condition of Article 308: the relevant assignment and functional relationship matter.

Article 309 increases the special limits where the offence has particularly serious consequences within the meaning of the Code. A substantial loss should not automatically be equated with that statutory condition. The applicable definitions and thresholds at the time of the conduct, and the actual consequences, must be established.

What must be proved?

The legal elements, movement of the assets and the person’s responsibilities are all relevant. Depending on the case, useful evidence may include:

  • employment or management contracts, job descriptions, appointments and delegations;
  • documents establishing management or administration responsibilities and identifying who had access to the assets;
  • inventories, handover records, registers and accounting documents;
  • bank statements, payment orders, invoices, approvals and correspondence;
  • IT-system logs, access records and other lawfully obtained digital evidence;
  • explanations for discrepancies, the calculation of loss and any errors or authorised transactions.

An accounting expert can clarify financial flows and records, but does not determine criminal liability. An inventory discrepancy, disputed payment or incomplete documentation does not, without more, establish intentional appropriation, use or disposal of entrusted assets.

Procedure and the High Court’s interpretation

The competent investigating authority and available measures are determined by the Criminal Procedure Code and applicable special legislation. An embezzlement allegation or the person’s job title does not automatically establish specialist jurisdiction or authorise an intrusive measure.

High Court Decision No 15/2024, delivered on an appeal in the interests of the law, clarified how embezzlement under Article 295 read with Article 308 relates to the expression “offence against property” in certain procedural provisions governing special investigative methods.

The decision addresses the provisions and legal issue identified in the judgment. It should not be turned into a general conclusion that every investigative technique is prohibited for the Article 308 variant. Each measure has its own statutory requirements.

Practical steps in assessing the allegation

  1. Identify the assets entrusted to the person and the document or arrangement under which they were entrusted.
  2. Identify the specific conduct alleged: appropriation, use or disposal.
  3. Check who authorised, recorded or carried out the transaction and who could access the documents and systems.
  4. Compare the allegation with alternative explanations and original records, rather than relying only on a report’s summary conclusions.
  5. Examine classification, loss, admissibility of evidence and procedural deadlines separately.

Conclusion

Embezzlement requires more than a loss or breach of an internal procedure. Classification depends on the person’s status, the assets managed or administered and proof of conduct described by Article 295, together with the requirements of Articles 308 or 309 where relied on.

Reviewing the documents, movement of assets and evidence helps identify the applicable legal variant. The outcome depends on the facts, evidence and legislation applicable when the alleged conduct occurred.

Official sources

General information. An individual case requires examination of its own facts and evidence.