According to the part 1 article 404 of Federal Law 1987 No 3 on Penal Code amended by Federal Law of 2005 No 34 and Federal Law of 2006 No 52:
“any person shall be sentenced to detention or to a fine, whoever embezzles, uses or dilapidates amounts, bills or any other movable property to the prejudice of those entitled whenever said movable property are delivered to him on bases of deposit, lease, pledge, loan for consumption or proxy”.
In the application of this provision shall be considered as a proxy, the partner in joint property, the officious on the property of the interested owner and whoever received something to be used in a specific matter for the benefit of its owner or of others.
This example of criminal offense is much expanded in the country and in practice; the judge might sentence the accused to 3 years jail term together with the imposition of deportation according to article 121 of the Law.
One of the latest court examples to be illuminated is the case where the partner was sentenced to the maximum term required by the article for receiving and using the company money. The funds came from one partner to another with the purpose of the construction of the factory. The court of the first instance considered the accused as guilty and sentenced him to maximum punishment. However, the appeal court took into consideration the lack of criminal component in the case and changed the punishment from jail term to fine.
The major point of our defense in the case was the insistence of lack of criminal intent and the necessity for the case to be seen by the civil court with further evidence and investigation of financial flow inside of the company. The court accepted the point and reduced the punishment to the fine.
The affected party saved the right to raise a civil case in the competent court, therefore, the criminal procedure was completed without of real sentence for the partner.
General advice for any financial crime is insistent on the investigation of intention on the crime, the evidence of the receiving of funds and in case of not acceptance of judgment to use the right for an appeal.
The article prepared by lawyer Dr. Maryam-Krystyna Nechaieva