The Private Person as Perpetrator of Embezzlement: Debate closed by the Constitutional Court?

Abstract

Sentence 1364-17-EP/23 of Constitutional Court and article 233 of the CRE regarding embezzlement seems to be closed. It is stated that both public servants and the ones who do not hold this condition can be authors regardless of their conduct. The resolution is not acceptable as it did not confront whether the content of the constitutional precept was suffcient to comply with the determination required to classify a conduct. The debate cannot be closed without reaching these levels of analysis. The aim of this article is to challenge this decision with arguments that were not considered and can be used to question the conclusions reached. From the explanation of what an intraneus and an extraneus are, other ways of interpreting article 233 are proposed. Among the alternatives, the selected is the one that is believed to be in harmony with the entire system of regulations. Article 233 establishes the need to sanction to non-public and private servants as perpetrators of embezzlement. However, it is not enough to be applied directly. It is the principle of legality that fulflls the mandate of determination. Finally, it is highlighted that the criminal law does contemplate cases where people without the status of public servants may intervene as perpetrators, cases in which there is certainty about the prohibited conduct.