Inclusion in the crime of a breach of trust of situations in which a worker/agent is a mere holder of sums of money intended for incorporation into the corporate assets of his/her employer/principal
Protection of the principle of trust
Breach of trust
Obligation to return property
Prohibition on imprisonment for debt
RULING Nº 631/04
4 of November of 2004
The prohibition of so-called "imprisonment for debt" must be regarded as a constitutional principle, although the principle applies only to "good-faith debtors", excluding cases of fraudulent non-compliance. The grounds adduced in support of the prohibition of imprisonment for debt are not applicable where the obligation in question is not a contractual one, but a legal one.
The guarantee that no one will be deprived of his liberty on the sole ground of inability to perform a contractual obligation remains linked to its historic premise (which was the mere impossibility of performing contractual obligations). The substance of the prohibition was, however, general insofar as, under that premise, it comprises all forms of deprivation of liberty, whether or not they are means of coercion. This historic origin accounts for the fact that the European Commission of Human Rights considered the remaining cases of imprisonment for debt to see whether they were consistent with the Convention.
The essential ingredient in the offence of breach of trust relating to a sum of money was that the person responsible appropriates the legal value of a sum of money which has been handed to him on a provisional basis and uses it as if he were the owner. In addition to this appropriation (in contrast to the typical Unterschlagung offence of the German Criminal Code), there was a new element, namely the bond of trust between the offender and the owner, or between the offender and the thing itself. In committing the offence, the offender breaks that bond. To this extent, one can and must say that breach of trust was a special offence, specifically in the form of the offence of breach of duty. The offender can only be a person who was in a specific situation stemming from the bond of trust between himself and the owner of the thing he has received without any transfer of ownership, which was the basis of the special duty to return property.
The question was whether the interpretation of the provision in Article 205.1 of the Criminal Code according to which this provision covered sums of money held by an employee because they were intended to form part of the company's corporate assets was unconstitutional by virtue of a violation of the following principle: no one may be deprived of his liberty for the sole reason that he was unable to perform a contractual obligation. The right to freedom and security recognised in Article 27.1 of the Constitution entailed that principle in accordance with Article 1 Protocol 4 ECHR.
According to the Constitutional Court, when the offender, as in the instant case, acted in his capacity as an employee and representative of a company - and, in the performance of his duties, received certain fungible assets which would have to be handed over to the company or incorporated into the corporate assets -, it was obvious that these things were entrusted to him without any transfer of ownership on the basis of a mere "bond of trust" between him and the owner of the money. By appropriating the sum in question and diverting it from its intended use, the offender unlawfully transferred ownership of these fungible sums and at the same time broke this "bond of trust". If the act was fraudulent, it was one that could lead to a criminal conviction.
The inability to perform the contractual obligation of handing over certain sums to one's employer was not an essential element of the offence of breach of trust. The important element was the appropriation of "fungible" money, resulting from the breaking of the bond of trust, the act being fraudulent. This appropriation impaired the bond of trust built around the moral protection given to the right of ownership by the person who held the sum of money on a provisional basis, without transfer of ownership.
In conclusion, in a social and democratic state governed by the rule of law, whose substantive principle was the preservation of trust and good faith and respect for the rights recognised by the legal system, including the right of ownership as a fundamental right, Parliament's decision to place this appropriation of moveable goods under the protection of criminal law, even if they were fungible goods, did not represent a discriminatory, unnecessary or excessive measure such as would violate Article 18.2 of the Constitution.
The Constitutional Court has already dealt with the issue of imprisonment for debt in other cases, both in connection with the provision in the 1982 Criminal Code under which suspension of the enforcement of the sentence may be made conditional on the accused paying the compensation owed to the victim within a certain time, or in connection with the criminal-law provisions, particularly of a procedural nature, relating to cheques, or in connection with the legal conformity of the offence of tax evasion.