Fraudulent bankruptcy: analysis of judgment Cass. pen., Section V, no. 51207 of 2023

On December 21, 2023, the Court of Cassation issued a significant judgment on fraudulent bankruptcy, confirming the conviction of A.A., liquidator of a bankrupt company, for the crime of simple documentary bankruptcy. The ruling, in addition to addressing the application of bankruptcy law, raises important issues concerning the rights of defence and the determinacy of criminal provisions.

Context of the judgment

The Court of Appeal of L'Aquila had already convicted A.A., holding him responsible for the failure to keep mandatory accounting records. In particular, the liquidator was accused of not having delivered the accounting books necessary for the proper management of the bankruptcy to the bankruptcy trustee. In response to this conviction, A.A. filed an appeal, raising three grounds of challenge.

Grounds for appeal

In the first ground, A.A. raised the unconstitutionality of the provision that punishes irregularities in accounting records. However, the Court rejected this argument, citing case law that establishes that the relevant legislation does not violate the principles of typicity and offensiveness, as the legislator referred to obligations well-known to entrepreneurs.

The legal interest protected by the criminal provision is violated whenever the irregular keeping of accounting records prevents them from fulfilling their typical function of ascertainment.

In the second ground, A.A. highlighted his acquittal on another charge of bankruptcy by misappropriation, arguing that he could not be held responsible for the failure to deliver the records. In this case too, the Court held that the failure to keep accounting records was sufficient to constitute the offence of documentary bankruptcy.

The Court's conclusions

Finally, in the third ground, A.A. invoked the application of the ground for non-punishability provided for by art. 131-bis of the Italian Criminal Code, but the Court deemed this argument inadmissible, as the absence of factors justifying punishability had not been demonstrated.

• Confirmation of the conviction for documentary bankruptcy.
• Rejection of the unconstitutionality claims.
• Recognition of the seriousness of the liquidator's conduct.

Conclusions

Judgment no. 51207 of 2023 represents an important reference point in the field of fraudulent bankruptcy, reiterating the need for liquidators to strictly comply with the provisions relating to the keeping of accounting records. It also clarifies the limits of the right of defence in the presence of conduct that may compromise transparency in the management of a bankruptcy. This ruling underscores the importance of the responsibility of professionals in the sector and the attention of jurisprudence towards the protection of creditors' interests.