Commentary on Judgment No. 45788 of 2024: Embezzlement and Fraudulent Bankruptcy

Judgment No. 45788 of October 17, 2024, issued by the Court of Cassation, offers important food for thought on the legal principle of "ne bis in idem" and the implications concerning the crimes of embezzlement and fraudulent bankruptcy. In this case, the Court emphasized how a previous judgment for embezzlement, which concluded with a non-prosecution ruling due to the statute of limitations, does not prevent a subsequent proceeding for fraudulent bankruptcy for the misappropriation of the same assets. This clarification is fundamental for understanding the differences between the two criminal offenses and their specific characteristics.

The Case and the Court's Decision

In the case at hand, the defendant, G. I., was initially accused of embezzlement, but the proceedings concluded due to the statute of limitations. Subsequently, he was subjected to a new proceeding for fraudulent bankruptcy by misappropriation, with the accusation of having misappropriated assets during the bankruptcy phase. The Court clarified that, although the two accusations concerned the same assets, there was no identity of fact between the criminal offenses. Indeed, the crime of fraudulent bankruptcy includes additional elements, such as exposing creditors' claims to danger and the declaration of bankruptcy, which increase its harmfulness.

The Principle of "Ne Bis in Idem"

"NE BIS IN IDEM" - Embezzlement already judged with a non-prosecution ruling due to the statute of limitations - Subsequent judgment for fraudulent bankruptcy by misappropriation - Violation of the principle of "ne bis in idem" - Exclusion - Reasons. Regarding the prohibition of "bis in idem," a previous judgment for the crime of embezzlement, which concluded with a non-prosecution ruling due to the statute of limitations, does not preclude a subsequent one for fraudulent bankruptcy by misappropriation of the same assets, as there is no "idem factum" between the two criminal offenses.

The Court, in its reasoning, clarified that the distinguishing element between the two offenses lies in the different configuration of the act. While embezzlement focuses on the act of unlawfully appropriating assets from their rightful owner, fraudulent bankruptcy by misappropriation implies an additional violation, that of protecting creditors, aggravated by the defendant's insolvency situation.

Legal Implications and Final Reflections

This judgment therefore represents an important confirmation of the need to analyze each criminal offense independently, avoiding hasty conclusions that could harm the rights of the defendant or creditors. The substantial differences between the crimes of embezzlement and fraudulent bankruptcy must be well understood, especially in a context where economic crises lead to an increase in reports of property crimes.

In conclusion, judgment No. 45788 of 2024 represents a significant step forward in clarifying the regulations related to the matter, offering food for thought for both legal professionals and ordinary citizens. The correct application of the "ne bis in idem" principle is fundamental to ensuring justice and protecting the rights of all parties involved.