Most embezzlement cases are defended incorrectly, not because the lawyer gets the law wrong, but because the defence starts from the end. The discussion turns to the amount, to repayment, to mitigating factors, when the decisive questions come earlier: was the client, within the meaning of the law, a perpetrator of this offence? Was the property in his management or administration? Was there intent, or an accounting error? If the answer to any one of these is no, the discussion about sentencing becomes pointless.
Article 295 of the Criminal Code covers the public official, within the meaning of Article 175. In the private sector, the text becomes applicable only through the reference in Article 308, which extends it to persons who exercise, permanently or temporarily, with or without remuneration, an assignment of any kind in the service of an individual referred to in Article 175(2) or within any legal person. Under ÎCCJ Decision no. 1 of 19 January 2015, Article 308 is a mitigated variant of embezzlement, not a mere ground for reducing the sentence, a distinction with direct effects on limitation. The full structure is set out in the analysis on the elements of the offence of embezzlement.
The check does not stop, however, at the existence of an “assignment”. Embezzlement requires an additional quality: the property must be managed or administered by the offender. Managing requires actual duties of receiving, keeping and releasing property or valuables. Administering requires a power of disposal over the estate. An employee who has access to the till but no management duties is not a perpetrator of embezzlement, their conduct may be theft or breach of trust, under a different legal regime. A shareholder without a director's role does not, by the mere fact of being a shareholder, administer the company's assets; the particular case of the sole shareholder and the company's assets is dealt with separately.
The defence is built documentarily: the job description, the appointment decision, the management contract, the articles of association, the bank powers of attorney, the decisions appointing the custodian. The absence of such a document is not a formality, it is the absence of a constituent element.
The corollary, frequently missed by the prosecution: the status of director is found, and it is automatically inferred that every asset of the company was administered by the defendant. That is not so. The link must be established for the specific asset. If a piece of equipment was in the custody of a warehouse manager, and the director took it without right, the conduct is not embezzlement by the director as regards that asset, because he was not managing it.
Embezzlement is committed exclusively with intent. From this follow a series of defences which, supported by evidence, are effective, and which have in common that they shift the discussion from the figure to the explanation.
An incorrect entry, an offset not carried out, an advance for settlement not justified in time, are accounting irregularities, not misappropriations. At most, they give rise to tax and civil liability.
A lack of rigour in documentation is not the same as intent to misappropriate. It is a distinction the courts draw, if asked to.
Where withdrawals were made year after year, openly, with the knowledge of the accountant and the other shareholders, and the financial statements were approved, the theory of covert misappropriation weakens considerably.
Made before any inspection or complaint, it is the best objective indicator of the absence of intent to permanently misappropriate.
The absence of a shortfall in the custody. When the prosecution relies on a deficit found at stocktaking, the defence must attack the stocktaking itself. The rules on organising and carrying out stocktaking, approved by O.M.F.P. no. 2861/2009 and still in force in 2026, give the grid: whether the custodian was present and signed, whether they gave the stocktaking declaration, whether wastage, returns and goods in transit were taken into account, whether the opening balances were correct. A stocktaking carried out without the custodian, with balances carried forward unchecked, does not prove a shortfall, in detail, in the analysis on the stocktaking, the expert report and the supporting documents.
The actual destination of the funds is the defence with the best effort-to-result ratio in cash-withdrawal cases. Money taken out of the company was, often, spent in the company's interest, payments to suppliers who dealt in cash, wages, transport, taxes, advances, deposits. The lack of a supporting document is an accounting problem; it does not, by itself, prove misappropriation. It is proved through statements, receipts, supplier declarations, correspondence, correlations between the sums withdrawn and the deliveries made. Where it succeeds, it directly reduces the figure, how the loss is calculated and challenged.
This is the most underrated of defences, because it does not produce an acquittal, but something the client often values more. Depending on the facts, embezzlement competes with three provisions.
Misappropriating or wrongfully disposing of another's movable property, held under any title. Criminal proceedings are brought on a prior complaint from the injured party.
Causing loss while administering or preserving another's property, by the person responsible for the administration. Criminal proceedings are likewise brought on a prior complaint.
Using, in bad faith, the property or credit of the company, for a purpose contrary to its interests or for personal gain. The sentence: imprisonment from 6 months to 3 years or a fine, with a qualified perpetrator, founder, director, board member, legal representative.
Why it matters. For embezzlement, criminal proceedings are brought ex officio, and reconciliation does not apply: under Article 159 of the Criminal Code, reconciliation may occur only where the law expressly provides for it, and Article 295 contains no such provision. For breach of trust and fraudulent management, by contrast, a different mechanism applies, withdrawal of the prior complaint (Article 158 of the Criminal Code), which removes criminal liability for offences prosecuted on a prior complaint. The distinction between the two institutions is technical, but the consequence is identical and considerable: changing the classification can turn a case carrying years of imprisonment into one that closes through an arrangement with the company.
The second consequence is limitation. Basic embezzlement is time-barred after 8 years; in the Article 308 form, after 5 years; breach of trust, after 3 years; and Article 272 of Legea nr. 31/1990, after 5 years. In cases with old facts, reclassification can directly result in the discontinuance of the criminal proceedings, the full calculation is in the analysis on the limitation periods and the effects of repayment. The relationship of overlap or of specificity between Article 295 of the Criminal Code and Article 272 of Legea nr. 31/1990 remains disputed in legal writing; this text presents it as an alternative classification, not as a settled rule.
NOTE: A request to change the legal classification should not be made at the end, “in the alternative”, alongside a plea for acquittal. The two undermine each other: arguing simultaneously “I did nothing” and “and if I did, it is a different offence” weakens both positions. The procedural stance must be decided at the start of the case, based on the actual evidence, not as a fallback option.
The company has legal personality distinct from its shareholders; its assets are not theirs. An informal agreement among the shareholders does not turn the withdrawal into a lawful operation, especially where there are creditors who suffer loss, the state budget, suppliers, banks, employees.
Consent can, however, be relevant on the question of intent: if the operations were carried out transparently, with the approval of the statutory bodies, the theory of covert misappropriation becomes harder to sustain. It is a contextual argument, not a justification, and the difference must be acknowledged, because a defence presented as more than it is loses credibility even on what it does claim.
The preliminary chamber is the only stage at which the lawfulness of the evidence is systematically reviewed. The time limit is short and cannot be recovered later. Unlawfully obtained evidence is excluded (Article 102 of the Code of Criminal Procedure), and an excluded findings report can leave the prosecution without the figure on which the entire case rests.
Exceeding the limits of the warrant, seizing documents unrelated to the offence, digital searches without a separate warrant.
Carried out without summoning the parties, without the opportunity to raise objections or to appoint a party expert, under Article 172(8) and Article 173(4) of the Code of Criminal Procedure.
From banks, accountants or other holders, without the correct procedural basis.
Acts drawn up by bodies lacking jurisdiction. Checked first, because it affects everything that follows.
The logic is the same as in tax-criminal cases, described in the analysis on the defence strategy in economic crime cases: what is not raised at the preliminary chamber is never raised again.
It is not. The company is a distinct legal subject. The argument confirms, in the court's perception, exactly what the prosecution alleges: that the defendant treated the company's assets as his own.
Repayment remains relevant as a mitigating factor, but made after the investigation has begun it no longer proves the absence of intent, it proves awareness of the risk.
Invoices and receipts that appear in the file after the criminal investigation has started are examined with maximum suspicion, cross-checked with the issuer and, when found not to be genuine, give rise to a second case, for forgery. A genuine document filed late is worth less than a genuine document explained.
A “clarifying” conversation with a former employee before their hearing can constitute the offence of influencing statements (Article 272 of the Criminal Code). It is the most effective way of turning a defensible case into a lost one, and of justifying a preventive measure.
The right to silence is guaranteed and, at many points, correctly exercised. But in a case where the defence is the actual destination of the funds, someone must explain, at a chosen moment, where the money went.
Criminal liability is personal and is established on actual contribution, not on the org chart, the delimitation is set out in the analysis on the liability of the accountant and the director.
The plea agreement (Articles 478 to 488 of the Code of Criminal Procedure) may be concluded only for offences for which the law provides a fine or imprisonment of at most 15 years, a condition met by embezzlement, including in its aggravated form. The benefit: a one-third reduction of the limits of the prison sentence (Article 480(4)). The same reduction is also obtained through the simplified procedure of admitting guilt before the court (Article 396(10) of the Code of Criminal Procedure).
The agreement is rational when the evidence is solid, the amount is correctly established and the loss is covered, not as a way of avoiding the effort of a defence. Once the conduct is admitted, challenging the classification and the amount becomes practically impossible. The correct order is the reverse: first correct the figure and the classification, only then evaluate the admission.
Covering the loss is not, in embezzlement, a ground for non-punishment. This is the major difference from tax evasion, where Legea nr. 241/2005, as amended by Legea nr. 126/2024, provides express grounds for non-punishment conditional on payment of the increased loss, within the time limits and amounts set by law; the contrast is detailed in the analysis on covering the loss and the grounds for non-punishment. Article 295 of the Criminal Code contains no equivalent provision. What remains is the effect of the judicial mitigating circumstance under Article 75(2)(a) of the Criminal Code, efforts made to remove or reduce the consequences of the offence, its application being discretionary, and the consequence, a one-third reduction of the special limits (Article 76).
No defence strategy guarantees a result. Each case depends on the actual evidence and the court's assessment, and any person under investigation is presumed innocent until a conviction becomes final.
Not automatically. Embezzlement requires the accused to have misappropriated, used or trafficked property that they themselves managed or administered. Liability does not transfer by virtue of the position held. If the director took an active part, gave instructions, benefited, or covered up the operation, the discussion moves to complicity, which must also be proved.
A request to change the classification is made to the court and is granted only if the facts support it, not because it would be convenient. If, however, the evidence shows there were no management or administration duties, reclassification is legally correct, and its natural consequence is that withdrawal of the prior complaint, under Article 158 of the Criminal Code, removes criminal liability.
No. The company's assets do not belong to the shareholders, and their agreement has no effect on creditors. The transparency of the operations remains relevant on the question of intent, as a contextual factor, not as a ground removing the criminal character of the conduct.
No. In embezzlement, the law does not provide a ground for non-punishment for covering the loss, unlike tax evasion. Repayment can be treated as a judicial mitigating circumstance, with a one-third reduction of the sentencing limits, and it extinguishes the civil claim, but the criminal proceedings continue.
No. Reconciliation (Article 159 of the Criminal Code) applies only to offences prosecuted ex officio for which the law expressly provides for it, and Article 295 contains no such provision. The mechanism that closes a case at the will of the injured party, withdrawal of the prior complaint (Article 158), operates for breach of trust and fraudulent management, which explains why the legal classification is, in these cases, the main stake.
Informative material, updated on 18 July 2026. It does not constitute legal or tax advice; no defence strategy guarantees a result, and each case depends on the actual evidence and the court's assessment. Every person under investigation is presumed innocent until a conviction becomes final.
If the matter involves a criminal complaint or an open file, the related analyses are grouped under economic criminal law. For how the defence is built, see defence in company-law offences.
Time limits run from the date of communication. A first conversation clarifies what is being alleged, what you need to substantiate and how the defence is built, before an estimate becomes a tax assessment decision.