This crime is addressed in Chapter I of Title X of Book II of the Penal Code, in the following article:
“Article 338. Any public servant who embezzles or misappropriates in any way, or consents to another person appropriating, embezzling, or misappropriating in any way, money, securities, or property whose administration, collection, or custody has been entrusted to them by reason of their office, shall be punished with imprisonment from four to ten years.
If the amount misappropriated exceeds one hundred thousand balboas (B/.100,000.00) or if the money, securities, or property misappropriated was intended for welfare purposes or for development or social support programs, the penalty shall be imprisonment from eight to fifteen years.”
This type of crime, known as “Peculation”, aims to protect and ensure the proper administration of public funds and assets. It is traditionally defined as the misappropriation or embezzlement of public funds by a public official or employee who is responsible for their administration, collection, or custody due to their position. Its protection seeks to safeguard the integrity of public assets and the trust placed in state servants for the management of these resources.
The typical conduct encompasses both theft (appropriation with the intent to profit) and embezzlement (giving funds or assets a purpose other than that legally intended), as well as consenting to a third party carrying out these actions. The subjective element of the crime lies in the agent’s awareness and intent to dispose of public assets as if they were their own or to divert them from their legal purpose, abusing the position of trust inherent in their office.
This entails the need to prove the causal link between the public servant’s position and the administration, receipt, or custody of the stolen or embezzled assets. It also requires distinguishing between permanent appropriation and temporary misuse, with only the former constituting embezzlement, including proof of intent or malice in the execution of the specific action described.
This crime must be committed by a “public official”; however, in circumstances where a private individual may be involved, criminal law allows for extending liability to individuals who are not public officials, in accordance with Article 343 of the Penal Code.:
- Anyone in charge, for any reason, of funds, income, or assets of a public entity.
- Any individual legally designated as the custodian of public funds or assets.
- The administrator or custodian of money or property seized, confiscated, or deposited by a public authority, even if it belongs to private individuals.
- Individuals or representatives of legal entities in charge of managing money, assets, or securities that form part of a donation made to the State from abroad or made by the State for public works and projects of social interest.
- Employees of public service companies in which the State has an economic stake, unless a special law establishes otherwise.
In short, the path to a favorable resolution of these disputes requires rigorous preparation, specialized knowledge, and a robust legal strategy.