Cassation Court upholds embezzlement conviction over 2015 gaming levy

Italy's Court of Cassation has upheld an embezzlement conviction against the legal representative of a gaming-machine management company for failing to transfer to the concessionaire sums collected under the levy introduced by the 2015 Stability Law, according to the ruling. The conviction was imposed by the Tribunal of Oristano and confirmed by the Court of Appeal of Cagliari. The Sixth Criminal Section rejected the appeal and ordered the appellant to pay court costs and to reimburse the civil party's legal expenses.

The court held that the sums retain a public-law character from the moment of collection, because they derive from an activity carried out under a state monopoly and subject to close public oversight. It rejected the defence argument that the failure to pay concerned only economic relations between operators in the chain and could not amount to an offence against the public administration. The court said it must therefore be excluded that the failure to transfer the contested sums could be reduced to a mere commercial matter between private operators in the gaming chain.

The Cassation Court also confirmed that a machine manager may be recognised as a person entrusted with a public service for the purposes of Article 314 of the Criminal Code. According to the reconstruction cited in the ruling, the manager takes part in managing and moving takings within the service awarded under concession; although not formally a accounting officer, the manager holds the money on behalf of another for reasons connected with the service performed. The private entrepreneurial nature of the activity and questions over the allocation of economic risk between operators do not affect the classification of the sums for criminal purposes, the court held.

On the amount, the defence had pointed to difficulties in determining precisely the credit owed to the concessionaire and argued that this uncertainty was incompatible with a finding of liability. The court distinguished proof of the appropriating conduct from the exact determination of the sum due, stating that uncertainty over the quantum did not prevent a finding that the offence existed, since it was sufficient to establish the failure to transfer sums certainly owed and retained by the defendant.

The court further excluded that regulatory uncertainty, pending civil or administrative disputes, or notice of withdrawal from the relationship with the concessionaire could remove the criminal relevance of the conduct. In particular, a possible request to disconnect machines from the telematic network does not change either the public-law nature of sums already collected or the transfer obligation on the manager, the judges said.