Legal opinion addressed to the High Court of Cassation and Justice on the active subject of the offence of embezzlement

By application to the High Court of Cassation and Justice, on 16 February 2022, the holder of the application - the panel hearing the appeal in the case pending before the Craiova Court of Appeal - Criminal and Juvenile Division - requested the Supreme Court to rule on the interpretation and application of the provisions of Article 295 para. (1) rap. to Article 308 of the Criminal Code, in order to determine whether the de facto manager of an association of owners or tenants may be an active subject of the offence of embezzlement, that is to say, whether a person who performs services for the association of owners or tenants, on the basis of a contract for the provision of services, may be regarded as a person who permanently or temporarily performs a task of any kind within the association, within the meaning of Article 308 of the Criminal Code.
On 27 April 2022, on behalf of the Criminal Law Department of the Faculty of Law of the University of Bucharest, Ms Andra-Roxana Trandafir submitted a legal opinion in which she pointed out, in essence, that the de facto administrator of an association of owners or tenants may be an active subject of the offence of embezzlement, and that the possibility that a person may be an active subject of the offence of embezzlement does not depend on the nature of the contract underlying the relationship with the association of owners or tenants, if that person also has powers of administration or management in respect of the sums of money or other property belonging to that association which may be classified as a service relationship.