CAUTION !!! automatic translation from Polish
- Misappropriation of entrusted goods – are our intentions important?
In the judgment of March 27, 2025, the District Court (IV Ka 66/25), the court did not agree with the objection of the attorney for the auxiliary prosecutor, in which he questioned the legal assessment of the accused’s alleged act committed by the Court in the scope made by the Court in the scope of Article 284 § 2 of the Penal Code.
Art. 284. [Appropriation]
§ 2. Whoever appropriates a movable thing entrusted to him shall be subject to a penalty of imprisonment from 3 months to 5 years.
The intention to appropriate an entrusted thing (art. 284 §2 of the Penal Code), realized in the perpetrator’s disposal of this thing as if it were his own (animus rem sibi habendi) does not include unauthorized use (inconsistent with the will of the entrusting party) of it, unless it is accompanied by the purpose of definitively including this thing in the perpetrator’s assets.
The court emphasized that the perpetrator of the act qualified under art. 284 §2 of the Penal Code must act for a specific purpose and this purpose is appropriation – i.e. an action consisting, on the one hand, of definitively including the thing in his assets, and, on the other, of depriving the previous owner of the right of ownership.
The case law in this respect is unambiguous, consistent and established. For the offence of misappropriation to occur, it is not enough to treat someone else’s property as one’s own – the intention of permanent misappropriation is also necessary, i.e. to include this property in one’s own assets, which may manifest itself, among other things, in the desire to enrich oneself at the expense of the injured party (judgment of the Court of Appeal in Białystok of 29 November 2012, file reference II AKa 115/12).
An important aspect is that for the fulfilment of the feature of misappropriation (from the subjective side), it is not sufficient to state that the perpetrator disposed of someone else’s property, while the most important thing is to demonstrate a specific intention.
The court noted that this intention of the perpetrator differs significantly from a situation in which the perpetrator only arbitrarily uses someone else’s property, without the intention of misappropriating it. An example of such behaviour is acts fulfilling the features of an offence under Article 127 § 1 of the Criminal Code or an offence under Article 289 of the Criminal Code (taking a vehicle for short-term use). Similarly, not every unauthorized use of someone else’s property – even if motivated by the desire to achieve financial gain – constitutes misappropriation within the meaning of Article 284 of the Penal Code. If the perpetrator’s action is not accompanied by the purpose of permanently depriving the owner of their right to the property, there is no basis for attributing to them the crime of misappropriation. It is worth emphasizing that the purpose of misappropriation is a narrower concept than the purpose of achieving financial gain. Financial gain may also result from temporary, unauthorized use of someone else’s property, without the intention of permanently appropriating it. Therefore, Article 284 § 2 of the Penal Code does not apply in the case where the perpetrator only uses the property entrusted to him in a manner contrary to the will of the owner, if he does not intend to permanently include it in his own property. The constitutive condition of liability for misappropriation on the level of the features of the subjective side is a specific purpose of the perpetrator’s action, covered by his awareness and will, which comes down to the definitive inclusion of the item in the perpetrator’s assets (see Supreme Court judgment of 6 May 2004, V KK 316/03). This structural feature of the subjective side of the crime of misappropriation is emphasized in the Supreme Court’s case law, emphasizing that: „The mere fact of a party’s failure to fulfill an obligation cannot indicate its intention to increase its own assets at the expense of the contractor’s assets.” In conclusion, the court assumed that in order to fulfill the features of the crime of misappropriation of another person’s property rights on the objective side, it is necessary to prove that the perpetrator wanted to dispose of another person’s property rights as an owner, and was accompanied by the intention to keep this right for himself or another person.
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