Commentary on Judgment Cass. pen., Section VI, no. 31608 of 2024: Self-money laundering and fraudulent bankruptcy

Judgment no. 31608 of the Court of Cassation, issued on August 1, 2024, represents an important ruling concerning the crimes of fraudulent bankruptcy and self-money laundering. In this case, the Review Court of Rome had confirmed the precautionary seizure of sums of money attributed to A.A., investigated for fraudulent bankruptcy and self-money laundering. The Court analyzed the criteria for establishing self-money laundering, highlighting the need for conduct beyond that of the predicate offense.

The context of the judgment

The case examined by the Court of Cassation concerns A.A., accused of having diverted sums of money from the company Centro Moda Guidonia Srl, which went bankrupt, to reinvest them in other companies within his group. The central issue was whether such operations could constitute the crime of self-money laundering. The Court reiterated that for the self-money laundering offense to be integrated, an action demonstrating a quid pluris is necessary, i.e., a concrete element attesting to the dissimulatory nature of the conduct.

The rationale of the provision under art. 648-ter 1. of the Criminal Code is represented by the reintroduction into the legal economy circuit of assets of criminal origin, hindering their traceability.

The requirements of self-money laundering

According to the judgment, the mere transfer of sums without a change of ownership does not constitute the crime of self-money laundering. The fundamental requirements for establishing this crime include:

• An action subsequent to the predicate offense.
• A transfer that changes the ownership of the asset.
• Conduct that makes the identification of the criminal origin of the asset objectively difficult.

The Court emphasized that the act of self-money laundering is autonomous and must be distinguished from fraudulent bankruptcy. Reinvestment operations, therefore, must demonstrate a real dissimulatory capacity, otherwise the crime cannot be established.

Conclusions

Judgment no. 31608 of 2024 offers an important clarification on the distinction between fraudulent bankruptcy and self-money laundering, emphasizing the importance of the concrete dissimulatory suitability of the conduct. It highlights how jurisprudence is moving towards a necessary separation of criminal offenses, avoiding double punishment for similar conduct. This approach not only protects the rights of the investigated parties but also safeguards economic order by preventing the pollution of the market with illicit capital.