Embezzlement is a punishable property offence whereby someone appropriates a good that he has in his possession in a legal manner. In contrast to theft, whereby something is taken away, the perpetrator already had the good in his possession, for example through rental or safekeeping.
Definition of Embezzlement
According to article 321 of the Dutch Criminal Code, embezzlement concerns the unlawful appropriation of a good that someone has under his control in a manner other than by a crime. Examples include a rented bicycle that is not returned or money that is handed over in trust and subsequently spent.
What Makes Embezzlement Different from Theft?
In theft, a good is taken away without permission. In embezzlement, the perpetrator already lawfully possesses the good, such as through a loan or rental. The offence arises when the good is not returned or is used for one's own purposes.
Types of Embezzlement
- Standard Embezzlement - The basic offence (article 321 Sr)
- Embezzlement as Employee - By an employee, with stricter penalties (article 322 Sr)
- Embezzlement by Administrator - By a trustee or executor-testamentary (article 323 Sr)
Level of Penalties
- Standard Embezzlement: Up to 3 years' imprisonment
- Embezzlement as Employee: Up to 4 years' imprisonment
- Embezzlement by Administrator: Up to 4 years' imprisonment
Practical Examples
- Not returning a borrowed laptop and reselling it
- As an employee, taking money from the cash register for personal use
- As an administrator, personally using a client's assets
- Keeping a found item while the owner is known
Defence Possibilities
Defences may include: no deliberate intent (for example, forgetting to return it), uncertainty about who the owner is, or a dispute that falls under civil law rather than criminal law.
Frequently Asked Questions about Embezzlement
When is it embezzlement and not a mistake?
Embezzlement requires intent: you must consciously decide not to return the good. If you, for example, sell a borrowed item instead of returning it, that is embezzlement. In the case of an honest mistake that you correct immediately, there is no criminal offence.
Can I file a police report if someone does not return my belongings?
Yes, if you can prove that the other person intentionally refuses to return it, you can file a police report. Gather evidence such as agreements or communications. The police will assess whether there is embezzlement and you can claim compensation via the civil court.
What distinguishes embezzlement from theft?
Theft is taking away something you do not possess, such as stealing from a shop. In embezzlement, you already legally possess the good, for example through rental, and commit an offence by not returning it.
Is embezzlement always prosecuted criminally?
Not always. The Public Prosecution Service determines whether to prosecute, depending on the case and the evidence. For minor offences, a fine or settlement may follow. In serious cases, such as embezzlement by an employee, prosecution is more likely.
What are the consequences of a conviction for embezzlement?
A conviction may result in imprisonment (up to 4 years), fines or community service. You may also receive a criminal record, which impacts employment or travel. Compensation to the victim is often mandatory.