Accusation of embezzlement: what it is and how to face the process

Embezzlement is one of the most serious offences against the Public Administration in the Criminal Code: it punishes the official or authority who steals, uses or consents to the stealing of the public funds or assets in their charge. It is an offence of abuse of trust involving public funds. Although it came to media prominence with major political proceedings, it is not only an offence of scandals: it can affect anyone who manages public resources, from the mayor of a small municipality to a technician who administers subsidies.

Embezzlement is regulated in Articles 432 to 435 of the Criminal Code and protects a dual legal interest: public assets and the proper functioning of the Administration. The active subjects are those who hold the status of authority, public official or person who administers public funds or assets, a broad category that also includes subsidy managers and elected officeholders.

The 2022 reform of the Criminal Code distinguished several forms more clearly. Embezzlement by stealing or appropriation is the classic and most serious one: the official appropriates the funds for profit, requiring personal enrichment or that of a third party. Embezzlement by temporary use or diversion punishes the official who uses the funds for unauthorised purposes with the intention of returning them; it carries lower penalties. And improper embezzlement, or disloyal administration of public funds, punishes the disloyal management that causes serious harm to public assets without there being personal appropriation.

The penalties are among the highest in the catalogue of offences against the Administration. For embezzlement by appropriation with an amount exceeding 250,000 euros, they can reach eight years’ imprisonment plus absolute disqualification of eight to twelve years. In addition, conviction entails the obligation to reimburse the funds as civil liability and the confiscation of the assets obtained.

The investigations are usually complex and prolonged; they may be initiated by a complaint, an internal audit or an investigation by the Court of Auditors. It is worth knowing that accounting liability before the Court of Auditors is independent of criminal liability: an official may be convicted criminally and, in addition, be declared liable in accounting terms.

The person under investigation retains all their rights. The right to silence is paramount, because these investigations rely on accounting documents that speak for themselves, and whoever tries to justify the irregularities without having first analysed the documentation with their lawyer may aggravate their situation. The exhaustive review of all the accounting documentation is the first step of the defence. The most frequent lines of defence are the documentary justification of the destination of the funds; the absence of personal profit motive, which may lead to applying the less serious form; accounting errors that explain the discrepancies; and the lack of competence of the person under investigation over the funds.

Finally, the voluntary reimbursement of the amounts during the process may be assessed as a mitigating factor and influence the reduction of the penalty, although it does not eliminate criminal liability for the acts already committed.