The crime of misappropriation is a crime against the assets provided for in art. 646 of the Penal Code, here are the examples on inheritance and spouses
The crime of misappropriation is a crime against the assets provided for in art. 646 of the Criminal Code
The regulatory provisions of art. 646 envisage a single case of misappropriation (paragraph 1) and a particular aggravating circumstance of the crime (paragraph 2).
Paragraph 3 of Article 646 of the Criminal Code concerns the prosecution of the crime.
The crime of misappropriation is the one who, having possession of a certain thing or a sum of money belonging to another person, appropriates it in order to derive a profit of their own or from others.
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In this article, we will review some examples of misappropriation: the misappropriation of the condominium administrator, the inheritance, between the spouses, of the vehicle.
The condominium administrator commits misappropriation who distracts the sums of money registered to the Condominium, consumes them or uses them for purposes other than those for which they must be used, that is, for the payment of common expenses.
A typical example is the administrator who makes withdrawals from the condominium current account and spends them on dinners at the restaurant.
In the same way, the administrator commits misappropriation who refuses to deliver, after leaving office, the documentation relevant to the condominium.
It should be remembered that the condominium administrator who implements misappropriation is responsible not only criminally but also civilly.
Therefore, before the criminal judgment, the members of the condominium can request the audit of the accounts of the condominium body, exercising any liability action against the administrator and revoking it if the majority is reached at the meeting or by contacting the competent court to request the revocation court of the same, in case of ascertained irregularities.
The heir of the deceased, who before the closure of the succession, distracts assets of the inheritance, which he possesses, also commits misappropriation.
A typical example is the son of the deceased who, having the deceased father’s credit card, withdraws money from ATMs, to the detriment of the other co-heir brothers, or sells the furniture in the family home.
However, in relations between relatives, criminal law provides for some exceptions for crimes against property.
It is not in fact punishable, pursuant to art. 649 of the Italian Criminal Code, those who have committed crimes against property (and therefore also misappropriation) in damage:
1) of the spouse not legally separated;
2) of an ascending or descending or of a cognate in a straight line, or of the adopter or adoptee;
3) a brother or sister who lived with him.
Therefore, in the case of a brother who distracts inheritance property, misappropriation occurs only if the fact is committed to the detriment of non-cohabiting brothers or sisters.
Pursuant to art. 649 of the Criminal Code, the misappropriation between spouses can only exist if the spouses themselves are legally separated.
Therefore, the spouse who is not legally separated who distracts an asset of the other spouse, regardless of the property regime adopted, separation of property or legal communion, does not commit misappropriation.
With reference to the application of art. 649 of the Italian Criminal Code, the same does not include more uxorio cohabitants, that is, between the members of a de facto couple.
The mechanic commits misappropriation and, having received a vehicle to be repaired, refuses to return it.
However, the offense exists only if the consideration for the repair service, carried out by the workshop, has been paid by the customer. As long as the price is not paid, the mechanic workshop owner has the civil right of retention on the car, i.e. the right to retain the vehicle as the owner, which excludes the crime of misappropriation
The appropriation also occurs in all those cases in which the mechanic uses the car received for delivery for personal purposes, making use of it as if it were the owner.
In the same way, the director of a company commits misappropriation which, having the possession of leased vehicles, does not return them at the end of the contract and does not exercise the redemption option.
The prosecution of the misappropriation is a legal complaint, however, it is ex officio when:
The lawsuit is the act by which the offended person of the crime manifests the will to punish the guilty party. Some types of crime cannot be prosecuted without a complaint from the offended person. Therefore, in this case, the complaint is defined as a condition of prosecution. The lawsuit is lodged with the judicial police officers or the public prosecutor’s office.
For the filing of the lawsuit there is 3 months from the day of the news of the fact.
Extreme attention should be paid to this point, since if you have been the victim of an misappropriation crime (in the cases that can be prosecuted) and the complaint has not been filed promptly (3 months), you will lose the power to ask for punishment of the offender.
However, it must be admitted that in most cases of appropriation that occur in practice, such as, for example, that put in place by the administrator who illegally appropriates sums of money from the condominium, that perpetrated by the accountant who does not return the accounting books to your customer, or that of the mechanic who does not return the car, one of the aggravating circumstances of art. 61, paragraph 11 (specifically the abuse of work performance) and therefore the crime of appropriation pursuant to art. 646 of the Penal Code becomes prosecutable ex officio.
The deadline for filing a lawsuit begins not from the moment of the offense, but from when one becomes aware of having been the victim of misappropriation.
The knowledge of the fact is when one realizes that the culprit assumes a behavior that shows unequivocally to treat the property of others as his own, or because he gives it to third parties, or because he consumes it or because he does not return it.
If you are the victim of an misappropriation by a subject who refuses to return your mobile thing, to demonstrate knowledge of the fact, it may be appropriate to send the same a written request or by e-mail or registered mail (beware ), inviting him to return the thing within a reasonable period of time (usually 15 days) and warning him about the criminal consequences to which he would expose himself in case of non-compliance.
At the end of the period of time allowed, the three-month period for filing the lawsuit would begin to run.
In ex officio hypotheses, a complaint is not necessary, but a complaint, which can be filed by subjects other than the offended person and with the further consequence of not having to be subject to compliance with the 3-month time limit.
The hypothesis of misappropriation with the aggravating ex art. 61, paragraph 11, takes on particular importance in that, as already seen above, it affects the processability.
The undue appropriation aggravated by the circumstance pursuant to art. 61, paragraph 11, refers to the case in which the offense was committed “with abuse of authority or domestic relations, or with abuse of office relationships, work performance, cohabitation, or hospitality”.
The penalty of misappropriation is:
An example of a necessary deposit is the storage of luggage and personal effects at a hotel, during the period of accommodation.
This is a special aggravating circumstance.
To calculate the penalty of misappropriation, we start from the basic penalty, and balance between any common and generic mitigating circumstances on the one hand, and aggravating on the other.
There is also a particular aggravating circumstance of the misappropriation, constituted by the fact of committing the crime to damage in person with physical or mental impairment. In this case, the penalty is increased by a minimum of one third, up to half.
The aggravating circumstances must be contested by the public prosecutor in the indictment indicated in the summons, otherwise the judge cannot consider them for the purpose of applying the penalty.
In determining the penalty, the judge must then evaluate the criteria referred to in art. 133 of the Italian Criminal Code and specifically the place, time and circumstances of the conduct as well as the intensity of intent.
The determination of the sentence by the judge is also affected by the existence of the various types of repeat offenders, according to the rules of the code of criminal procedure.
Subjective element: specific intent.
The prescription of the crime starts from the moment of the consummation of the offense (i.e. when the appropriation is carried out) and not from when you become aware of having been the victim of misappropriation.