Analysis of Judgment No. 40174 of 2024: The Role of the Bankruptcy Trustee and the Refusal of Official Acts

The recent judgment of the Court of Cassation No. 40174 of September 17, 2024, offers significant insights into the role of the bankruptcy trustee and their responsibilities, particularly regarding delays in performing acts and the configurability of the crime of refusal of official acts. This decision is part of a complex legal context, where it is crucial to understand the conditions that can lead to criminal liability for a public official.

The Regulatory Framework

The case examined by the Court is closely linked to Article 328 of the Criminal Code, which concerns the omission or refusal of official acts. The Court has established that a delay in the bankruptcy trustee's activities cannot be considered a crime unless certain conditions are met.

• Unavoidability of the omitted act: the trustee's inaction must persist beyond the assigned deadline.
• Concrete risk of prejudice: the delay must cause actual harm to the proper functioning of justice.
• Formal notice to comply: in the absence of a formal notice, the trustee's conduct cannot be classified as a criminally relevant omission.

The Ruling's Headnote

Bankruptcy trustee - Delay in performing an act - Refusal of official acts - Configurability - Conditions - Omission of official acts - Formal notice to comply - Necessity. The delay in performing an activity by the bankruptcy trustee does not constitute the crime of refusal of official acts under Article 328, first paragraph, of the Criminal Code, unless the objective unavoidability of the omitted act exists, which presupposes that the inaction persists beyond the expiry of the assigned deadline, to the point of generating a concrete risk of prejudice to the proper conduct of the judicial function, nor can it be classified under the omissive offense of Article 328, second paragraph, of the aforementioned code, in the absence of a formal notice to comply, which cannot be deemed fulfilled by reminders from the judge through the court registry.

This headnote highlights that mere delay is not sufficient to constitute a crime; a deeper assessment of the circumstances is necessary. The Court has therefore clarified that the trustee cannot be considered guilty unless all the listed conditions are met.

Conclusions

Judgment No. 40174 of 2024 represents an important reference point for jurisprudence on the liability of bankruptcy trustees. It emphasizes that, to constitute a crime of refusal of official acts, the presence of certain objective and subjective conditions is fundamental. This clarification not only helps protect the rights of trustees in the exercise of their functions but also offers greater certainty to legal professionals and parties involved in bankruptcy proceedings.