In 2017, an administrator was sentenced to 2 years’ imprisonment for embezzlement in a continuous form. The central piece of evidence: a court-appointed forensic accounting report finding a shortfall in the managed assets of 20,236.71 lei, over a period of almost five years. On appeal, the Bucharest Court of Appeal acquitted him. Between the two judgments, not a single figure changed. What changed was the question put to the figure.
The reasoning in criminal decision no. 917/A of 27 June 2018 of the Bucharest Court of Appeal is worth quoting exactly: “The absence of a sum of money from the managed assets, by itself, does not lead to the unequivocal conclusion that the money was embezzled.” This is, in essence, what is at stake in the evidence in an embezzlement case, and the subject of this analysis, written from the defence’s perspective. The point of principle remains valid throughout what follows: until a final judgment of conviction, anyone under investigation benefits from the presumption of innocence.
An embezzlement file is a file of documents. It is decided on figures, not on eloquence, and the figures reach the indictment through filters that the defence can control far more than it assumes, provided it steps in in time.
Trial balances, ledger cards, accounting notes, journals. Account 542 (cash advances) and account 4551 (amounts owed to members) are the first ones the investigator opens, discussed at length in the analysis on cash withdrawals and cash advances.
The cash register, receipts, payment and collection orders, bank statements for the entire reference period, often the suspect’s personal accounts as well.
Invoices, receipts, expense claims, acceptance reports. Their absence is an accounting problem; on its own, it is not evidence of misappropriation.
Loan agreements, mandate agreements, service agreements; emails, messages, internal notes, usually the source of the context that the figures lack.
The inventory and the report recording the shortfall. The act that frequently triggers the entire file, and the most challengeable of all.
The piece around which the entire file usually revolves. It is not an established truth, but a means of evidence, which is challenged on technical grounds.
An expert report is not a free-ranging investigation. The expert answers strictly to the terms of reference approved by the judicial body. From this comes the most important tactical truth of these cases: a badly worded term of reference produces a useless answer or, worse, an answer that appears to confirm the prosecution’s case without actually proving it.
The moment the terms of reference are set is often the only one in which the defence can decisively influence the factual basis of the case. Letting it pass without objections is a mistake that can no longer be repaired in closing arguments.
Weak terms of reference, because they invite the expert to go beyond the limits of their competence, or implicitly accept the prosecution’s case: “to establish whether the defendant misappropriated the sum of X lei” (the expert cannot establish misappropriation, which requires a legal assessment of the act and of intent); “to establish the loss caused by the defendant’s acts” (the term of reference contains the conclusion in its premise); “to establish whether the withdrawals were unjustified” (“unjustified” is a characterisation, not a technical finding).
What is the balance of account 542 at the beginning and end of each financial year in the period examined, and what transactions make it up?
What supporting documents exist, in the accounting file, for each cash payment out exceeding X lei, indicating the date it was recorded?
Are there accounting entries for the sums withdrawn and, if so, what is the corresponding account? What is the identifiable destination of each sum, based on the documents made available?
What documents did the expert request and were not made available, indicating from whom they were requested? A term of reference rarely set of the judicial body’s own motion, and frequently decisive.
Are the sums withdrawn reflected in payments made to third parties in the company’s interest, suppliers, wages, taxes?
Are there normal losses, wastage, write-offs or other accounting causes that explain, wholly or in part, the difference found?
The last two are, in practice, the most productive for the defence, and the ones most often missing from expert reports ordered of the court’s own motion. The logic is the same as in the analysis on evidence and expert reports in tax litigation: whoever writes the question largely writes the answer as well.
They can establish: the existence and amount of a difference between the book records and the actual position; balances and flows; the existence or absence of a supporting document; the destination of a sum, where it is documented; whether an entry is correct.
They cannot establish: intent. The subjective element of the offence is not an accounting category. It is inferred from the evidence as a whole and is a matter for the court alone. The professional standard of CECCAR (Corpul Experților Contabili și Contabililor Autorizați din România), the professional body of Romania’s chartered accountants, on accounting expert reports expressly states that an accounting expert report may not rule on the legal classification of the facts.
WARNING: Check every expert report for wording that goes beyond the expert’s competence: “the defendant misappropriated”, “the sums were taken”, “the act was committed with intent”, “the loss caused by the offence”. Such conclusions are not technical findings, but legal characterisations, which the expert has no right to make and which the court cannot adopt as such. They are challenged through objections to the report, by requesting clarifications (Article 179 of the Code of Criminal Procedure) or, as the case may be, by applying for a further expert report. A report that “finds guilt” does not strengthen the prosecution’s case, it exposes it.
The Code of Criminal Procedure governs expert evidence in Articles 172 to 181. Two provisions are essential for the defence, and both are used up early, in silence, with no one drawing attention to them.
Article 172(8): authorised independent experts, appointed at the request of the parties or the main procedural subjects, may take part in the preparation of the expert report. Article 173(4): the parties and the main procedural subjects have the right to request that a recommended expert appointed by them take part in preparing the expert report; where the report is ordered by the court, the prosecutor may, in turn, request the participation of a recommended expert.
The difference from a consultant engaged afterwards is substantial. The party-appointed expert takes part in the work: they see the documents at the same time as the appointed expert, can ask for clarifications along the way, can flag omissions before the report is filed, and can put forward a separate opinion. A consultant who receives the finished report can only criticise it, from a significantly weaker position.
The condition is that the party must be notified of the order for an expert report and given the time needed to exercise these rights. An expert report carried out without notifying the parties can be challenged on the ground of relative nullity, under the Code of Criminal Procedure, in the preliminary chamber or, as the case may be, at trial. The point at which these rights are actually exercised is described at length in the analysis on gathering evidence during the criminal investigation.
The evidential value of the inventory depends entirely on how properly it was carried out. The rules on organising and carrying out the stock-take of assets, liabilities and equity, approved by O.M.F.P. nr. 2861/2009, remain in force in 2026 and provide the exact checklist.
A stock-take carried out in the custodian’s absence, without them being lawfully summoned, can be challenged: they could not give explanations, could not flag documents still in progress, could not sign with objections. This is the first test, and the one most often failed.
Its composition, the appointment decision, the status of its members. Was the custodian invited to give the inventory statement before the operation began?
Were all documents handed over and recorded before the stock-take? A stock-take carried out over records that are not up to date produces an artificial difference.
Does the report include the custodian’s explanations and objections? Were normal wastage, technological losses and approved write-offs taken into account?
An inventory drawn up without the custodian, without summoning them and without giving them the chance to raise objections, has weak evidential value. The defence must challenge it explicitly, not implicitly, an unwritten objection does not exist in the file.
The rule in principle is that the burden of proof lies with the prosecution (Article 99 of the Code of Criminal Procedure), and any doubt benefits the suspect or the defendant, in dubio pro reo (Article 4 of the Code of Criminal Procedure). The absence of documents does not, by itself, create a presumption of guilt.
The rule does, however, have a counterweight: Article 26 of the Accounting Law (Legea nr. 82/1991) requires that, in the event of the loss, theft or destruction of financial and accounting documents, steps to reconstitute them be taken within 30 days at most of the discovery (90 days from when force majeure ends). An administrator who reconstituted nothing and reported the disappearance of the documents to no one weakens their own position, not because they become guilty, but because they lose the explanation. The division of roles between the person who keeps the records and the person responsible for them is discussed separately, in the analysis on the liability of the accountant and the administrator.
The case cited at the outset illustrates exactly this tension. The Bucharest Court of Appeal found, in the defendant’s favour, that he had reported to the police the theft of documents from the association’s headquarters, before the criminal proceedings began, that he had handed over the managed assets in a climate of conflict with the new management, and that he disputed the claim that the accounting expert had been given all the relevant documents. The prior report was decisive: it turned the absence of documents from an indication against the defendant into a doubt in his favour.
Documents “reconstituted” after the fact produce the opposite effect. The temptation is strong and the mistake is common: after an inspection or an investigation begins, receipts, expense claims, general meeting resolutions or contracts are drawn up “to put things in order”. A backdated document can attract new charges, forgery of a private document, use of a forged document, and, more importantly, destroys the credibility of the entire defence: if one document is fabricated, the court will view the genuine documents with suspicion too. Lawful reconstitution exists (Article 26 of Legea nr. 82/1991), but it is a procedure with its own rules, time limits and mandatory notes on the reconstituted nature of the document. It is not the same thing as drafting, after the fact, documents that never existed.
This is the strongest defence, and the one most often missed. Embezzlement requires, as its physical element, an act of misappropriation, use or trafficking (Article 295(1) of the Criminal Code). A shortfall in the managed assets is a difference. Between the two there is a gap that the prosecution must close with evidence, not with presumptions, the full mechanism is set out in the analysis on the physical element of embezzlement.
Normal losses, wastage, technological losses, approved write-offs, accounting causes that explain the difference without any criminal act at all.
Accounting or calculation errors, confusion between different managed assets or between periods. Common, mundane, and rarely looked for in an expert report ordered of the court’s own motion.
Documents not recorded, lost or stolen, especially in the context of a conflict between members or a tense handover of the managed assets.
Theft committed by third parties or other employees. It is for the prosecution to exclude this possibility, not for the defence to prove it.
Payments made in the entity’s interest, but without the corresponding supporting document. An accounting and tax problem, not evidence of misappropriation.
The court held that the unjustified sum over almost five years “does not, by itself, prove the act of misappropriation, as the physical element of the objective side of the offence” and ordered an acquittal, leaving the civil claim unresolved.
Case law consistently holds that a mere shortfall in the managed assets, not corroborated by one of the methods required by law, is not sufficient, a constituent element of the offence would be missing. It is not a guarantee of outcome: it is a distinction that the defence must expressly demand, and the prosecution must cover with evidence.
The question arises naturally after Decision no. 430 of 15 December 2025, given by the panel for resolving points of law and published in the Official Gazette no. 149 of 26 February 2026, by which the High Court of Cassation and Justice (ÎCCJ) held that failing to draw up the specialist expert report renders the document referring the case to the court irregular, with the case being sent back to the prosecutor.
The answer is no, the decision does not apply directly to embezzlement, and this is not a matter of opinion, but a consequence of its scope. The ruling was given “in the interpretation of Article 10 of Legea nr. 241/2005, as amended by Legea nr. 126/2024”, concerning the offences under Articles 6¹, 8 and 9 of that same law, that is, a special provision of the tax evasion (evaziune fiscală) law, which expressly requires the loss to be determined through a specialist expert report. Embezzlement is an offence under the Criminal Code and has no equivalent provision. There is, therefore, no general legal duty to order an expert report in an embezzlement file, and its absence does not automatically lead to the case being sent back.
This does not mean the reasoning is without any use. The substantive argument of the decision, that the loss, as an element of the offence, cannot be established through a mere findings report, and that failing to determine it adequately affects the description of the act and the limits of the trial, remains valid and can be relied on in support of an application for an expert report. It is, however, a persuasive argument, not a binding one, and the difference must be presented correctly to the court: an application that presents the decision as applying automatically loses credibility exactly where it needs it most. The effects of the decision in its own field are discussed in the analysis on the specialist expert report after ÎCCJ Decision no. 430/2025.
Bank-flow analysis reconstructs the path of sums from the company’s account to personal accounts and, from there, to purchases. The method is powerful. It is not, however, conclusive by itself, and the four limits below are the ones raised in objections.
A transfer to a member can be a dividend, a loan repayment, remuneration or an advance; the statement does not say which. The distinction, at length, in the analysis on the legal basis of withdrawals.
In an account into which money comes in and goes out from several sources, attributing a particular payment out to a particular payment in is a methodological choice, not a finding.
ATM withdrawals can only be documented with other evidence. The rules applicable to cash flows are set out in detail in the analysis on cash and bank transfers.
The fact that a withdrawal preceded a personal purchase does not, by itself, prove that the purchase was made with that money.
The useful moment is when the expert report is ordered, not when it is filed. Check whether you were lawfully notified.
Neutral, technical, including alternative causes and documents not made available. Do not ask to “establish the loss”, but ask verifiable questions.
Requested under Article 172(8) and Article 173(4) of the Code of Criminal Procedure, to take part in the work, not to criticise a finished report.
The custodian’s presence is the first test; the inventory statement and objections, the second.
Identified in the report and attacked through objections: the expert does not find misappropriation and does not rule on intent.
Documented with evidence, not hypotheses. An unproven hypothesis does not create reasonable doubt.
A gap in the documentation is a problem. A forged document is a new offence, and the end of the defence on the rest of the file.
None of the above guarantees an outcome. Each case depends on its own facts, on the evidence and on the court’s assessment, and the presumption of innocence applies until the judgment becomes final. What can be said is that a file in which the figure in the indictment was never technically verified is, in practice, decided on the prosecution’s figure. The remaining defences are discussed separately, in the analysis on defences that work in embezzlement cases, and the calculation itself, in the one on calculating and challenging the loss.
No. The expert rules on technical matters, balances, flows, documents, differences. The subjective element of the offence is a matter for the court alone, and CECCAR’s professional standard on accounting expert reports expressly forbids the expert from ruling on the legal classification of the facts. A report stating that sums “were misappropriated” goes beyond the expert’s competence and can be challenged through objections.
No. The burden of proof lies with the prosecution, and any doubt benefits the defendant. The absence of documents does not create a presumption of guilt. What matters enormously, however, is conduct before the investigation began: whoever reported the disappearance of the documents when it was discovered, and started reconstituting them within the 30-day time limit under Article 26 of Legea nr. 82/1991, is in a significantly better position than someone who raises the disappearance only before the court.
You can raise objections and request clarifications (Article 179 of the Code of Criminal Procedure), and if the conclusions are unclear or contradictory, a further expert report can be ordered. The request must, however, be reasoned on technical grounds, not by mere disagreement with the conclusion, but by pointing to methodological errors, documents that were not analysed, or terms of reference that were not answered.
It can be filed in the case file as a document, but its evidential value is questionable. Carrying out a stock-take of managed assets without the custodian’s presence or lawful summons deprives them of the right to give explanations and raise objections. Challenging it must be done explicitly and supported with documents, not merely asserted.
No. The ruling was given in the interpretation of Article 10 of Legea nr. 241/2005, concerning the tax evasion offences (evaziune fiscală) under that law, and the Criminal Code contains no equivalent provision for embezzlement. The reasoning of the decision, that the loss cannot be established through a mere findings report, remains a useful argument in support of an application for an expert report, but it is a persuasive argument, not a legal requirement.
Informative material, updated on 18 July 2026. It does not constitute legal or tax advice; individual situations must be assessed on their own facts, and the outcome of each case depends on the facts, the evidence and the court's assessment. Every person 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.