One of the most serious crimes in any society is embezzlement. The crime of embezzlement differs from theft, abuse of confidence, and fraud.
Embezzlement in the word means robbing money from a government institution or office, thieving, stealing, and financial abuse by a responsible person. In the law on intensifying the punishment of the perpetrators of embezzlement and fraud (the Law), the Iranian legislature has defined the crime of embezzlement and its punishment.
There shall be three material, mental and legal elements to realize the crime of embezzlement. In this article, we examine what the crime of embezzlement under Iranian law is and its conditions, and related punishments.
The crime of embezzlement
To define embezzlement, Article 5 of the law states:
"Each of the employees of departments and organizations or councils or municipalities and institutions and governmental or government-affiliated companies or revolutionary institutions and the Court of Accounts and institutions that are managed with the continuous help of the government and the holders of the judicial base and the three powers in general and also the armed forces and public service agents, either official or unofficial taking and appropriating funds or remittances or shares or documents and face amount or other property belonging to any of the above-mentioned organizations and institutions or the persons entrusted to them according to their duties for the benefit of oneself or someone else is considered embezzlement."
According to the above article, the perpetrators of the crime of embezzlement are:
- Employees of departments and organizations
- Employees of councils or municipalities
- Employees of government or government-affiliated institutions and companies
- Employees of revolutionary institutions
- Employees of the Accounts Court
- Employees of institutions that are managing with continuous government assistance
- Holders of judicial base
- The staff of the three powers
- Armed forces employees
- Officials in public services, whether official or unofficial
The conditions for the crime of embezzlement
The crime of embezzlement is realized under certain circumstances and the mere presence of intention does not warrant criminal prosecution. Among these conditions, the following can be mentioned:
- The perpetrator shall be one of the employees of government institutions, whether an official, contractor or contractual. Therefore, an employee of a private company or an ordinary person who appropriates government property will not consider an
- The act of embezzlement occurs when it is committed against government property or property belonging to private persons before the government.
- The property has been entrusted to the government official according to his duty.
- The perpetrator must knowingly and intentionally appropriate the property in his possession and make it his own or someone else's property. Therefore, the mere unauthorized use of property without the intention of acquiring it cannot be included in Article 5 of the law.
Elements of embezzlement
In order for a crime to be realized, the said action shall have three legal, material, and mental elements. Hence, the existence of the constituent elements of crimes is necessary for the formation of any criminal offense.
- Legal element: The legal element of the crime of embezzlement is Article 5 of the law
- Mental element: The mental element means the intent to commit a criminal act. for this purpose, the perpetrator of the crime of embezzlement shall have malicious intent and take action with knowledge and awareness to take property.
- Material element: The material element means the act by which the perpetrator of any crime commits the crime in question. The material element of the crime of embezzlement is taking and appropriating property that is entrusted to a government employee according to his duty.
Punishment for the crime of embezzlement under Iranian law
According to the six notes of Article 5 of the law, the punishments for the crime of embezzlement are as below:
- If the amount of embezzlement is up to fifty thousand Rials, the punishment for the perpetrator of the crime will be six months to three years of imprisonment and six months to three years of temporary dismissal.
- If the amount of embezzlement is more than fifty thousand Rials, the punishment of the employee will be two to ten years of imprisonment and permanent dismissal from the government service.
- In any case, the perpetrator will be sentenced to a fine equivalent to twice the embezzled amount.
- If the perpetrator is in the rank of general manager or higher or equal to them, will be sentenced to permanent dismissal from government services, and if he is in a lower rank, as mentioned; he will be sentenced to six months to three years of temporary dismissal from government service.
- If the crime committed by the embezzled employee is combined with forgery and the amount of embezzlement is up to fifty thousand Rials, the punishment for embezzlement will be increased to two up to five years of imprisonment and one to five years of temporary dismissal from government services.
- If the amount of embezzlement exceeds fifty thousand Rials, the punishment for embezzlement combined with forgery is imprisonment from seven to ten years and permanent dismissal from government services. In each case, in addition to returning the embezzled money or property, the embezzler is sentenced to a fine equivalent to twice that amount.
Embezzlement by forming or leading a multi-person network
If the crime of embezzlement is organized or led by a network and group of people it is subject to Article 4 of the law. The minimum amount of imprisonment and dismissal will be different. The punishment for the perpetrator of such embezzlement is imprisonment from 15 years to life in addition to returning the property and a fine of twice the amount of the acquired property, and permanent dismissal from the government service.
Assisting and abiding in the crime of embezzlement
Assisting in committing the crime of embezzlement means when a person facilitates the commission of the crime of embezzlement by any means, including incitement, enticement, threats, etc. The person who is an accessory to the crime of embezzlement is sentenced to a punishment one or two degrees lower than the main embezzler (for more information about punishment degrees under Iranian law please click "Mitigation of punishment"). In the case of simple embezzlement, the punishment of the deputy embezzler is considered less according to the main embezzler's punishment, and in serious cases, his punishment is determined to be more severe according to the main embezzler's punishment.
However, participation in the crime of embezzlement takes place when three or more people participate in committing the crime. In this case, the punishment of each participant is considered as an independent perpetrator of the committed crime.
The difference between embezzlement and abuse of confidence
The difference between embezzlement and abuse of confidence (Article 674 of the Islamic Penal Code) is in the perpetrator of the crime and the subject of the crime.
- The perpetrator of the act: the perpetrator of the crime of abuse of confidence is an ordinary person, while the perpetrator of the crime of embezzlement shall be a public employee or public service agent.
- The subject of the crime: The crime of embezzlement, contrary to the crime of abuse of confidence, can only be concerning government property or entrusted to the government.
- Ownership status: The crime of embezzlement can only be realized through possession, contrary to the crime of abuse of confidence, which can also be realized through use, waste, and loss.
- Beneficiary: in the crime of embezzlement, the beneficiary can be the perpetrator himself or someone else, while in the crime of abuse of confidence, the benefit of another person is not mentioned.
Reduction of punishment for the crime of embezzlement
According to note 3 of article 5 of the law, if the embezzled person returns all the embezzled property and funds before issuing the indictment, the court will exempt the embezzled person from all or part of the monetary punishment. In addition, with the return of the mentioned funds, the embezzler's imprisonment will be suspended. The dismissal of the embezzler remains effective even if the property and funds are returned before the indictment is issued.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
