(Jamma) The bar manager who, in agreement and in competition with the concessionaire, transforms video games into slot machines risks being convicted of computer fraud but cannot be indicted for the more serious crime of embezzlement.
With a lengthy motivation, the Second Penal Code of the Supreme Court (sentence 18909/13, filed on 30 April) redraws the limits and interactions between the two crimes, establishing a chronological criterion to trigger the most serious charge of the public official. Basically, if the "tricks and deceptions" to deceive the Administration (i.e. the alteration of the functioning of the machines) were carried out "before" the fraudulent appropriation of the money due to the State, the judge will have to limit himself to contesting the computer fraud , while if the final moment of the appropriation is later it will be possible to proceed for the more serious "qualified" offence.
The facts of the case were not in dispute. The manager of a Sicilian public exercise had "developed" some skill/entertainment devices (governed by paragraph 7 of article 110 of the Tulps) transforming them into "gaming machines that produce winnings" (paragraph 6 of article 110 of the Tulps). The difference, as well as the intensity of the entertainment, is of typology (we pass from "skill" to pure "hazard") but above all of the tax regime, considering that for entertainment the operator pays a lump sum tax, while for slots (and the like) have a telematic connection with the Monopolies which allows the Administration to detect the volume of play and to determine its taxation. Furthermore, the gambling machines must in any case guarantee a winning percentage of 75% on a cycle of 140 games, a target completely ignored by the artisanal manipulation carried out in the bar in question, with full elusive agreement between concessionaires and operator.
Despite the seriousness of the alterations - and the substantial tax damage caused by the failure to collect 13,5% of the total bets - the Cassation however reduced the bartender's charges, canceling the competition between the crime of computer fraud and that of embezzlement. According to the Court, there is a logical incompatibility between fraud and the crime pursuant to article 314 of the penal code (in the second case "any fraudulent conduct constitutes a posterius, devoid of legal significance", while the "artifices and deceptions" are constitutive elements of the scam) incompatibility which is also reflected in the relationship between embezzlement and computer fraud under article 640–ter. Guiding the choice of the judge (in this case the prosecutor, for the request for pre-trial detention), writes Sole24Ore, is therefore the final moment of the appropriation of the money due to the tax authorities. If this is subsequent to the "processing" of the machine, and it is basically the naturalistic effect, we will have to move in the context of crimes against property (computer fraud), while if the stolen property was already available to the qualified agent (and also of its competitors not belonging to the PA) it will be possible to contest the embezzlement
