Money Laundering and the Predicate Offence: The Limits of Changing the Charge According to the Court of Cassation (Judgment no. 11483/2025)

The crime of money laundering, governed by Article 648 bis of the Italian Penal Code, is one of the most effective tools for combating organised and financial crime. Its configuration requires the existence of a "predicate offence", i.e., a crime from which the assets or money subject to money laundering operations originate. But what happens if, during the proceedings, the prosecution changes its mind about the original crime? The recent Judgment of the Court of Cassation, no. 11483, filed on 21 March 2025, addresses precisely this delicate issue, reaffirming a fundamental principle of criminal procedural law: the necessity of the adversarial principle.

Money Laundering and its "Predicate Offence": An Indissoluble Link

Money laundering consists of obstructing the identification of the criminal origin of money, assets, or other benefits. It is a "free-form" crime that can manifest in multiple conducts, from substitution to transfer, to investment in economic or financial activities. An essential element is that the assets subject to the conduct originate from a non-negligent crime. This "predicate offence" does not necessarily have to have been ascertained by a final judgment, but its existence must be proven in the money laundering proceedings.

The Principle of Adversarial Proceedings: A Fundamental Guarantee

The Supreme Court, presided over by Judge A. PELLEGRINO and with Judge M. PERROTTI as rapporteur, quashed and remanded the decision of the Court of Appeal of Salerno of 16 April 2024, in the case involving the defendant N. S. The judgment under review clarified a crucial aspect:

For the crime of money laundering to be established, the predicate offence may be different from the one that was the subject of the original charge, provided that the different legal qualification has been the subject of adversarial proceedings. (In application of the principle, the Court quashed the decision, which confirmed the first-instance judgment, that had nevertheless made a change with respect to the charged offence, identifying, as the predicate offence for money laundering, that of fraudulent evasion of tax payments, instead of that of inaccurate declaration, on which the adversarial proceedings in the first instance had focused, without allowing the appellants to engage in dialogue on the matter).

This maxim is of extraordinary importance. It means that the judge can identify a predicate offence different from the one initially charged, but only if a full debate between the prosecution and the defence has been established on this "new" qualification. In the specific case, the Court of Appeal had changed the predicate offence from "inaccurate declaration" (Art. 4 of Legislative Decree 74/2000) to "fraudulent evasion of tax payments" (Art. 11 of Legislative Decree 74/2000), without however giving the parties the opportunity to discuss and defend themselves on this new approach. This omission violated the defendant's right to defence, leading to the quashing of the judgment.

Practical Implications and Regulatory References

The ruling of the Court of Cassation underscores a cornerstone principle of our procedural system: the right to adversarial proceedings, enshrined in Article 111 of the Constitution and Article 6 of the European Convention on Human Rights. When the legal qualification of the act, and in this case of the predicate offence, changes significantly, it is essential that the defence is put in a position to:

• Be informed of the new charge or the different qualification.
• Discuss the merits of the new qualification.
• Propose new evidence or defence strategies in relation to it.

Case law of the Court of Cassation has already dealt with similar issues in the past (see regulatory references and previous maxims such as Cass. no. 10746 of 2015 or Cass. no. 6584 of 2022), consolidating the idea that a change in the act or its qualification must always guarantee the full exercise of the right to defence. The judgment under review reaffirms and strengthens this orientation, specifying how it also applies to the delicate matter of the predicate offence for money laundering.

Conclusions: A Beacon for Justice and Defence

Judgment no. 11483/2025 of the Court of Cassation is not just a technical ruling on the crime of money laundering, but an important reminder about the integrity of criminal proceedings. It reminds all legal professionals that, even in the face of complex crimes like money laundering, the fundamental guarantees of the accused, first and foremost the right to adversarial proceedings, can never be sacrificed. A change in perspective on the charge always requires proper information and the opportunity for the defence to engage, thus ensuring a fair and just trial, in line with constitutional and European principles.