Receiving a notice of investigation as a member of the board of statutory auditors is a moment of profound professional and personal concern. Often, the criminal investigation arises not from direct illicit action, but from the alleged omission of oversight of the management conduct carried out by the company's directors. In these circumstances, it is crucial to act promptly to clarify one's position. As a criminal lawyer in Milan, Avv. Marco Bianucci understands the delicacy of these investigations and the vital need to delineate clear boundaries between the normal duty of corporate oversight and actual criminal liability.
The Regulatory Framework: Omission of Oversight and Complicity in Crime
In the Italian legal system, the criminal liability of a corporate auditor is typically based on Article 40, second paragraph, of the Criminal Code, which establishes that failure to prevent an event that one has a legal duty to prevent is equivalent to causing it. This means that members of the board of statutory auditors can be held liable, in complicity with the directors, for serious corporate crimes such as false corporate communications, fraudulent bankruptcy, or tax fraud, if they are accused of not having adequately exercised the powers of oversight and veto provided by law.
However, the case law of the Court of Cassation has progressively clarified that criminal liability can never be presumed solely on the basis of holding the position of auditor. To establish complicity in a crime, it is necessary to demonstrate that the professional had perceived concrete warning signs (the so-called red flags) about the anomaly of the management and that, despite this, remained inactive, voluntarily or negligently omitting to activate the investigation, inspection, and reporting powers at their disposal. The line between oversight deemed ineffective in hindsight and actual complicity is thin and requires extremely rigorous legal analysis.
The Approach of the Bianucci Law Firm in the Defense of Auditors
Facing an accusation of complicity by omission in corporate crimes requires a deep understanding of business dynamics and civil and criminal regulations. The approach of Avv. Marco Bianucci, an expert lawyer in corporate criminal law in Milan, focuses on a meticulous, documentary, and factual reconstruction of the entire affair. The primary objective of the defense is to demonstrate the absence of a causal link between the auditor's alleged omission and the harmful event caused by the directors, or the complete lack of the subjective element (intent or negligence) required by the criminal law.
The defense strategy developed by the Bianucci Law Firm begins with an analytical examination of the minutes of the board of statutory auditors, the communications exchanged with the board of directors, and the reports of the auditing firm. It carefully assesses whether the information provided to the auditor was correct and complete, or whether there was fraudulent concealment by the management that made it objectively impossible to detect the illicit act, constituting a genuine deception against the supervisory body. Each case is handled with a highly personalized method, aimed at dismantling the prosecution's hypothesis by demonstrating the correctness, diligence, and exigibility of the professional's conduct.
Frequently Asked Questions
What are the criminal risks if the company directors commit fraud?
If investigations show that the board of statutory auditors ignored clear signs of irregularities by omitting the due controls required by law, the auditors may be investigated for complicity in the same crime committed by the directors. This entails the risk of facing the same custodial penalties provided for the main offense, such as in the case of bankruptcy or false corporate communications, in addition to the related accessory and disqualifying penalties.
How can I prove that I have properly carried out my duty of oversight?
The primary evidence of an auditor's diligence lies in the formal documentation produced during their mandate. The minutes of the meetings of the board of statutory auditors, written and registered requests for clarification sent to the directors, dissenting opinions recorded in the minutes, any reports to the Court, or notifications to the shareholders' meeting are fundamental pieces of evidence to demonstrate that one has actively and fully exercised their supervisory role.
How much does it cost to be assisted in a criminal proceeding for corporate crimes?
The costs of a criminal proceeding depend on numerous factors specific to the individual case, including the complexity of the charges, the volume of documents to be analyzed, the need to appoint expert technical consultants, and the duration of the investigations. During the initial consultation, Avv. Marco Bianucci will analyze the situation in detail and provide a clear and transparent overview of the expected financial commitment for building the best possible defense strategy.
Protect Your Professional Position: Contact the Firm
A criminal investigation against a member of the board of statutory auditors is a critical event that requires immediate, clear-headed, and highly qualified technical defense to prevent unfounded presumptions from turning into heavy convictions. Do not let your professional work and reputation be unjustly compromised by the conduct of others. Contact Avv. Marco Bianucci for an in-depth and confidential assessment of your case, to begin building a solid defense strategy to protect your rights immediately.