Date of consummation of the embezzlement to the detriment of the state and consequences on liability pursuant to Legislative Decree 231/01

In the case in question, the question posed to the Italian Supreme Court of Cassazione concerned the identification of the moment in which the predicate crime referred to in art. 316-bis of the criminal code in relation to the diversion of a financed asset (a pleasure craft) from the public purpose of strengthening and qualifying the tourist services offered by the Region, using this vessel in ports located in another region.

From this, at the instigation of the European Delegated Prosecutor, a seizure provision was derived also for the purposes of confiscation by equivalent, with a charge of the administrative offense referred to in the Legislative Decree. n. 231 of 2001, art. 24, paragraphs 1 and 3.

With the decision in question, the Supreme Court confirms its own orientation according to which when the concession act provides for a deadline for the realization of the works or public activities interest, this term does not always have decisive value, but nevertheless the moment in which the conduct punished by the incriminating rule pursuant to art. 316-bis, i.e. the diversion of the sums received from public purposes, in the sense of protecting the correct management of public resources intended for the implementation of economic incentive works, also from the point of view of state economic efficiency, can occur even before the expiry of a formal term.