The Court of Cassation and Precautionary Measures: Reflections on Judgment No. 30092

The recent judgment of the Court of Cassation, Section III, No. 30092 of July 23, 2024, offers important insights into personal precautionary measures in criminal proceedings, particularly concerning tax crimes. In this article, we analyze the main aspects of the case involving A.A., the legal representative of the company "Macropharm Srl," and the implications of the Court's decision.

The Case of A.A. and Precautionary Measures

The Court annulled the order of the Court of Caltanissetta which had imposed interdictory measures against A.A., accused of having made undue tax compensations using non-existent credits. The Court highlighted how the element of subjectivity, i.e., the intent required to constitute the crime, was not adequately proven.

The challenged order erroneously found the serious indications of guilt against the current appellant to be substantiated.

• The crime of undue compensation is constituted only if the non-existent credit exceeds the applicable threshold for punishability.
• The joint liability of the client does not automatically imply the contractor's awareness of the use of illicit practices.
• The assessment of serious indications of guilt must take into account the rule of doubt in favor of the defendant.

Legal Principles and Implications of the Judgment

The decision of the Court of Cassation is based on several fundamental legal principles. Of particular relevance is the provision of Article 10-quater of Legislative Decree No. 74 of 2000, which governs undue compensations. The Court clarified that to ascertain the exceeding of the punishability threshold, it is necessary to consider the total amount of compensations made within the year, without subdividing them by tax year.

Furthermore, the Court emphasized the importance of examining the subjective element of the crime, highlighting how the mere awareness of an economic advantage cannot be sufficient to constitute intent. The Court of Caltanissetta, in fact, did not consider the temporal distance of the illicit conduct from the order for the application of precautionary measures, which dated back more than three years.

Conclusions

Judgment No. 30092 of the Court of Cassation represents an important affirmation of defendants' rights regarding precautionary measures. It highlights the need for a rigorous and complete assessment of serious indications of guilt, especially in the tax field, where interdictory measures can have a significant impact on the professional and personal lives of those under investigation. It is essential that every precautionary measure be supported by concrete evidence and not by assumptions, to ensure a fair trial and respect for fundamental rights.