Fraudulent Bankruptcy and Penalty Reform: Commentary on Judgment Cass. pen., Section V, No. 42350 of 2024

Judgment No. 42350 of 2024 by the Court of Cassation represents a significant ruling on fraudulent bankruptcy and the liability of directors of bankrupt companies. With this decision, the supreme court judges addressed not only the merits of the criminal liability of the defendant A.A. but also issues concerning the reasoning and the existence of the constituent elements of the crime.

Context of the Judgment

The case at hand concerns A.A., convicted of fraudulent bankruptcy in relation to the insolvency of two companies, A.D.N. IMMOBILI Srl and FILARMA Srl. The Court of Appeal of Turin had upheld the conviction, redetermining the sentence to 3 years and 5 months of imprisonment. However, A.A. appealed to the Court of Cassation, raising several objections regarding the reasoning of the judgment and the absence of intent in his actions.

The entrepreneur's responsibility for preserving the asset guarantee towards creditors justifies the apparent inversion of the burden of proof.

Analysis of the Grounds for Appeal

A.A.'s appeal is based on four grounds of objection, including the alleged incompleteness of the accounting reconstruction and the lack of the subjective element of the crime. In particular, the first ground concerns liability for fraudulent bankruptcy by misappropriation and is based on the alleged insufficiency of evidence to support the charges. The Court of Cassation, however, deemed this grievance inadmissible, stating that the evaluation of evidence falls within the purview of the lower court judge.

Another crucial aspect addressed by the Court is the issue of the subjective element, which does not necessarily require the director's awareness of the insolvency state. It is sufficient that there is the intention to allocate the company's assets for a purpose other than as a guarantee for creditors, as established by the case law of the supreme court.

Implications of the Judgment

The judgment has significant implications for the sanctioning treatment in cases of fraudulent bankruptcy. The Court annulled the conviction limited to the offense of corporate bankruptcy, with referral for a new trial, emphasizing that the defendant had not been adequately placed in a position to defend himself regarding the existence of a causal link between his conduct and the company's collapse.

• The necessity of clear and coherent reasoning by the lower court judge.
• The recognition of the complexity of the offense of improper bankruptcy.
• The relevance of evidence for establishing criminal liability.

Conclusions

In conclusion, judgment No. 42350 of 2024 offers an important reflection on criminal liability in bankruptcy matters, highlighting the need for rigorous reasoning by judges and the importance of evidence in criminal proceedings. The referral for a new trial underscores how the defense must have access to a fair and impartial evaluation, as well as the centrality of the principle of legality in criminal law.