An important order was issued today by the Court of Trieste in collegial composition, confirming the now established jurisprudence regarding the distinction between computer fraud and embezzlement, with regard to the failure to pay the PREU.
The case concerned a person indicted for trial (on charges of embezzlement) because, as the owner of AWP type gaming machines, he would have "altered" the functioning of the same, so as to "prevent the registration of bets" and, consequently, to "take possession" of the relevant PREU.
The defense of the accused, sponsored by Ripamonti Law Firm (adv. Marco Ripamonti, replaced at the hearing by'adv. Riccardo Ripamonti), raised a preliminary question before the Board, requesting the reclassification of the fact into the less serious crime of computer fraud, with consequent transmission of the documents to the competent single judge.
This is done by leveraging the well-known "chronological criterion” outlined by the Supreme Court (never affected by jurisprudence), such that "in embezzlement, possession is a antecedent of the conduct and the artifices, deceptions or false documentation do not affect the structure of the crime, but serve to conceal it. Conversely, in fraud (and computer fraud), the fraudulent conduct is arranged in order to allow the agent to come into possession of the funding, in view of subsequent appropriative conduct" (Cass, Section V, n. 24634 of 6.04.2018. XNUMX).
Well, already from the charge it was clear that the - alleged - tampering with the device was, in this case, prior (and instrumental) to the - alleged - appropriation of money, which is why the hypothesis of embezzlement had to be considered excluded in root.
In addition, the lawyer. Ripamonti also highlighted the inconsistency of the ruling of the Rubbo United Sections (n. 6087/2021) with respect to the case in question, since - said ruling - refers to another and different case.
This resulted in the Board's acceptance of the matter, with the fact being downgraded to the less serious crime of aggravated computer fraud and the consequent transmission of the documents to the competent single judge, in order to start the trial for this less serious charge.
