By Lic. Miguel Medina Iturria
Embezzlement appears as an offense in many jurisdictions. In our case it is governed by Article 336 of the Penal Code and embodies when an individual consents to take for themselves or with the consent of another, goods they have access to relating to the management, availability or custody because of their job.
This offense falls within the so-called frauds and despite being included under the heading of crimes against property, because of the magnitude of its impact it is considered as an offense that lacerates the national economy and has most negative influence on it.
In Article 336, different criminal penalties are applied according to the amount defrauded. Three to eight years in prison, if the economic impact is between $1,000 and $10,000; from eight to twenty when more than $10,000; and six months to two years or a fine, when it is below $1,000. The related amounts are provided in the Instruction 165 of the Governing Council of the People’s Supreme Court. This responds more severely the bigger the fraud to state assets. Personally I share this idea.
In the 6th paragraph of this provision provides a benefit to the accused which I quote:
“If the offender returns, before the conclusion of the trial, the appropriate goods or through his management this refund is achieved, the court may reduce by up to two thirds the minimum sanction as noted in each case.”
The purpose of this course is clear, through this expectation the person who commits this type of crime is motivated to reimburse the defrauded in hopes of improving his legal situation, but this paragraph has interesting practical drawbacks in the use of the term “may” which makes it an optional standard; in the case of return of the assets the Court is not obliged to grant the benefit described. In our judicial practice the latter variant is happening frequently.
In my view it constitutes an act of disloyalty to urge someone to give you what they have stolen with the expectation of improving their status in the process and then not to grant them the expected benefit. This legal standard should be mandatory or binding on the forums of justice, since the judgments not only have an impact on those involved, but on society and future offenders.
For example, if those involved in such matters know that returning the money will not bring a definite advantage, certainly they will not choose this option, but if complying with it provides certainty, every defendant would cooperate and would, without doubt, return the result of their corruption to its place of origin.
October 5 2012