Cass. pen., Sec. II, Judgment, no. 13352/2023: Self-laundering in light of fraudulent bankruptcy

The recent judgment of the Supreme Court of Cassation, no. 13352 of March 30, 2023, offers an important interpretation regarding self-laundering and fraudulent bankruptcy. In this case, the Court had to examine the possibility of configuring the crime of self-laundering in relation to conduct already integrated into the crime of bankruptcy, highlighting the principles governing the matter and the importance of the distinction between the two offenses.

The case under review

The case concerns A.A., investigated for fraudulent bankruptcy and self-laundering. The Tribunal for Liberty of Rome had rejected the request for precautionary seizure filed by the Public Prosecutor, arguing that the transfer of sums from a company that later went bankrupt to other companies in the group did not constitute self-laundering. However, the Court of Cassation upheld the appeal, holding that the reinvestment of illicit proceeds in economic activities could indeed constitute an instance of self-laundering.

The rationale behind self-laundering is precisely to prevent the contamination of the legal economy.

Analysis of the judgment

The Court clarified that to establish self-laundering, a dissimulating conduct subsequent to the predicate offense, in this case bankruptcy, is necessary. It is crucial that there is a change in the legal ownership of the illicit proceeds, as this complicates the identification of their origin. The Court emphasized that traceable transactions and the issuance of invoices do not automatically exclude punishability, as it is necessary to assess the conduct's suitability to hinder the identification of the illicit origin of the asset.

• The dissimulating conduct must be autonomous and subsequent to the predicate offense.
• The transfer of illicit proceeds to a different party can constitute self-laundering.
• It is necessary to analyze the dissimulating capacity of the conduct at the time it is carried out.

Conclusions

The Cassation's decision highlights the need for careful assessment of self-laundering conduct, especially in cases where it intersects with bankruptcy offenses. Judgment no. 13352 of 2023 clearly establishes that the mere transfer of sums cannot be automatically considered self-laundering, unless actual dissimulation of the illicit origin is proven. This approach helps protect economic public order by preventing the proceeds of crimes from contaminating the legal market, and clarifies the limits of punishability in relation to the principles of legality and the non-duplication of offenses.