Considerations on the aggravating circumstance of art. 47 military penal code of peace

The case.

A senior corporal chosen by the Italian Army, appointed as trustee of the military State District, was sentenced by the Military Court of Verona, a sentence confirmed by the Court of Appeal of Rome, under penalty of three years and six months of imprisonment military for crimes of aggravated military embezzlement and aggravated embezzlement to the detriment of soldiers.

In detail, he misappropriated the sum that had been given to him as reimbursement of expenses for housing "not in concession" thus violating art. 215 cpmp.
It also violated theart. 216 cpmp because he appropriated the sum that had been delivered to him by way of condominium shares for the use of the services of the state property of which the accused was the trustee.
Both conducts were aggravated by art. 47 of the criminal code for being the guilty soldier with a rank or invested with a command.

What does art. 215 military penal code of peace.

L'art. 215 cpmp punishes the military man in charge of administrative or command functions, who, having for reason of his office or service the possession of money or other movable property belonging to the military administration, appropriates them, or distracts him for his own benefit or that of others .

In the present case, the Supreme Court considered the argumentation process carried out by the Court of Appeal to be correct because the conduct of the accused was ascertained through the reconstruction of the accounting documentation carried out by the Administrative Inquiry Commission as well as by various witnesses.

It was established that the suspect managed uti dominus the sums that had been delivered to him, by way of reimbursement for housing "not in concession", withholding a significant part of these amounts and specified the Supreme Court that the illegality of such conduct could not be revoked in doubt, given the nature of an instant crime of military embezzlement, which is consumed when the agent takes possession of the movable property or the money of the PA which he owns due to his office, or gives them a different destination.

What does art. 216 military penal code of peace.

From the same reconstruction of the accounting documentation carried out by the Administrative Investigation Commission as well as from the witness examinations it emerged the guilt of the accused also in relation to the crime referred to inart. 216 cpmp.
It emerged unquestionably how the senior corporal chosen appropriated part of the sums that were paid to him by the condominiums of the State Military District in his capacity as fiduciary manager of that structure.

Embezzlement to the detriment of the military is completed when the sums received are distracted by the agent with respect to the destination for which the amounts are delivered by the military.
Specifies the Supreme Court that to configure the crime referred to in art. 216 of the criminal code, the existence of generic malice is sufficient, which results in the agent's conscious will to give the sum received from the military a destination other than the legitimate one.

A brief consideration on the aggravating circumstance referred to in art. 47 cpmp

Well, a reflection should be made on the subject of the principle of specialty as provided for by art. 15 of the criminal code as well as by art. 84 of the Criminal Code, for which, in short, the sanction against the accused cannot be duplicated when the conduct is sanctioned, or aggravated, by the same constitutive elements.

The art. 47 cpmp aggravates the conduct when the guilty soldier is vested with a rank or invested with a command while art. 215 of the Criminal Code sets as an objective element of the crime that the soldier is in charge of administrative or command functions, therefore, having to consider the aggravating circumstance of art. 47 in the constitutive element of the crime referred to in art. 215 of the Criminal Code should not apply the aggravation, as foreseen by the same incipit of the rule aimed at aggravating the conduct.

You can stay informed on legal news through our blog