Embezzlement involves the appropriation, use or disposal, for one’s own benefit or another’s, of money, valuables or assets entrusted to a person’s management or administration. Classification does not depend solely on whether the person works for the State or a private company. Actual responsibilities, the entity’s legal nature, the service relationship and the evidence concerning the assets and alleged conduct all matter.

Articles 295 and 308 of the Criminal Code

Article 295 provides for imprisonment from two to seven years and disqualification from holding public office. It criminalises appropriation, use or disposal of assets managed or administered by the perpetrator. Attempt is punishable.

Article 308 extends the application of specified offences, including Article 295, to a person performing, permanently or temporarily, with or without remuneration, an assignment in the service of a person covered by Article 175(2) or within any legal entity. In that variant, the special penalty limits are reduced by one third. The label “private employee” is insufficient: the actual assignment and its relationship to the assets must be examined.

Who has the status required by law?

Article 175 defines a public official for criminal-law purposes. Subject to its conditions, the concept can include people working for entities wholly or predominantly owned by the State. It does not always coincide with the everyday meaning of an employee of a public institution.

Article 175(2) also concerns a person performing a service of public interest who has been entrusted with it by the public authorities or is subject to their supervision or control, subject to the statutory qualifications.

Article 308 has its own requirements concerning an assignment in service and the relevant functional relationship. Employment or management contracts, job descriptions, delegations, internal procedures and actual duties can clarify that relationship.

An accounting error, negligence or an ordinary contractual dispute is not automatically embezzlement. The elements of the offence and the legally required mental element must be established.

The principal legal differences

  • Status of the perpetrator: Article 295 applies where the requirements of the basic offence are met; Article 308 extends specified offences to the persons it describes.
  • Penalty: Article 295 provides a two-to-seven-year range. Where Article 308 applies, its second paragraph reduces the special limits by one third. That reduction is neither an acquittal nor a determination of the actual sentence.
  • Disqualifications and other consequences: supplementary and ancillary penalties depend on the legal classification, the circumstances and the Code’s general rules. Private-sector involvement does not automatically exclude disqualification.
  • Loss and civil liability: recovery of loss and any civil liability require separate analysis on the evidence and the applicable rules.

What should be checked in a case?

Start with the person’s duties, the movement of the assets and the evidence supporting the allegation. Relevant documents may include:

  • employment or management contracts, job descriptions and appointment or delegation instruments;
  • documents showing the entity’s legal form and ownership, where relevant under Article 175;
  • management responsibilities, inventories, handover records and accounting entries;
  • bank statements, payment orders, invoices, correspondence and IT-system logs;
  • the calculation of the alleged loss, alternative explanations for discrepancies and records of who had access to the assets.

Important questions include who actually controlled the asset, whether it was entrusted to the person and whether the transaction amounted to appropriation, use or disposal within the offence. Expert or accounting evidence can clarify particular facts, but does not replace legal analysis of the offence’s elements.

Criminal procedure and the limits of case law

Jurisdiction of the investigating authority is determined by the Criminal Procedure Code and any applicable special legislation. Public-official status or the application of Article 308 does not automatically allocate a case to a particular specialist body or justify a surveillance measure.

In Decision No 15/2024, delivered on an appeal in the interests of the law, the High Court of Cassation and Justice determined that embezzlement under Article 295 read with Article 308 does not fall within the expression “offence against property” used in the procedural provisions addressed by that decision.

The ruling must be read within the legal question it resolved. It does not impose a universal prohibition on every investigative method. Each procedural measure requires satisfaction of its own statutory conditions.

Conclusion

The distinction between Articles 295 and 308 cannot be reduced to “public sector versus private sector”. Proper classification requires examination of the person’s legal status, actual responsibilities, service relationship, the assets and the specific conduct alleged.

Reviewing the documents and evidence helps establish whether the elements of embezzlement are present and which provisions apply. The outcome depends on the facts, evidence and law applicable at the time of the alleged conduct.

Official sources

This article provides general information based on the provisions identified above.