Embezzlement of funds and property: types and liability

Embezzlement, misappropriation of property, or misappropriation through abuse of office are classified as property crimes and represent some of the most pressing issues characteristic of the legal environment in our country. This is evidenced by the excessive number of criminal cases of this category being investigated by law enforcement agencies.

Commonalities and differences between forms of the crime

From an objective standpoint, this crime encompasses three different forms: embezzlement, misappropriation of another’s property, or misappropriation through abuse of office. Their common feature is the particular relationship of the offender to the property they acquire.

In these instances, the person is not an outsider to the property: it has been entrusted to them, is under their management, or the person, due to their official position, has certain powers over this property. In other words, the subject of the crime exercises authority over the property on a legal basis: endowed with the authority to dispose of, manage, deliver, or store the property, and so on.

Embezzlement refers to the illegal, unpaid retention of property entrusted to the offender or property that is under their management on a legal basis. Retention, as a method of embezzlement, involves failing to comply with the requirements to return the property within a specified period and establishing possession of it as one’s own.

Misappropriation is the illegal, unpaid alienation, use, or expenditure of property that was entrusted to the offender or under their management (such as sale, gifting, consumption, transfer to others, etc.). Most often, misappropriation follows embezzlement, being the next stage after the embezzlement in the crime. However, misappropriation can also be unrelated to embezzlement. For example, when a storekeeper illegally, for selfish purposes, transfers someone else’s property to third parties who have no right to it. Unlike embezzlement, at the time of the demand for the return, the entrusted property is absent in the possession of the offender during misappropriation.

A person who only had access to the property due to their professional duties (such as a security guard, cleaner, driver, and others) cannot be held liable for embezzlement or misappropriation.

The peculiarity of embezzlement, misappropriation, or misappropriation of another’s property through abuse of office lies in the fact that the property acquired by the offender was not entrusted to them, was not under their direct management, but due to their official position, the subject of the crime has the right to operational management of this property.

Abuse of office as a means of acquiring property implies that the person violates their powers and uses their organisational or administrative functions contrary to the interests of the service for the illegal and unpaid acquisition of another’s property: illegally instructing a materially responsible person subordinate to them to issue the property, obtaining property using fictitious documents, etc. For example, an official abusing their office to illegally obtain bonuses, salary increments, and the like.

The subjective aspect of the crime is characterized by direct intent and selfish motive.

The subject of embezzlement, misappropriation of property, or misappropriation through abuse of office is a person who has reached the age of 16. At the same time, the subject of embezzlement and misappropriation can be both a private and an official person, while the subject of misappropriation of another’s property through abuse of office can only be an official.

Liability and types of punishment

There are a number of qualifying features of this crime, including:

Committed repeatedly or by a group of persons by prior conspiracy
Committed on a large scale or in conditions of martial law or a state of emergency
On an especially large scale or by an organised group

The classification of the crime directly affects the liability for its commission. The types, extent, and terms of criminal liability for such crimes are quite varied. The offender can be subjected to:

Fines
Corrective labour for up to 2 years
Restriction of freedom for up to 5 years
Imprisonment for up to 12 years, with deprivation of the right to hold certain positions or engage in certain activities for up to 3 years, with confiscation of property

Conclusions

Accusations of committing a crime under Article 191 of the Criminal Code of Ukraine are of a rather serious nature, as confirmed by its sanctions. However, a competent approach to constructing a line of defence, as well as meticulous study of case materials, can nullify the arguments of the prosecution, mitigating the responsibility or even obtaining an acquittal.