Analysis of Judgment Cass. pen., Section V, No. 20152 of 2024: Bankruptcy and Self-Money Laundering

The recent judgment of the Court of Cassation, Criminal Section V, No. 20152 of 2024, offers an important opportunity for reflection on the boundaries between fraudulent bankruptcy and self-money laundering. In the case at hand, the defendant A.A., legal representative of Aspera Spa, saw his appeal against the order of the Tribunal of Review of Genoa, which had annulled the charges of self-money laundering, partially upheld. The judges highlighted the need to clarify the temporal and substantial distinction between the two crimes, emphasizing that self-money laundering must necessarily have an autonomous configuration distinct from the conduct of bankruptcy.

The Regulatory Context

The central issue of the judgment concerns the interpretation of art. 648-ter 1 of the criminal code, which governs self-money laundering. According to the Court, the conduct of self-money laundering occurs temporally after the commission of the predicate offense, in this case, fraudulent bankruptcy. This implies that, in order for the crime of self-money laundering to be constituted, a quid pluris is necessary, i.e., an additional conduct that deviates from the mere diversion of the company's assets.

The Court highlighted that the conduct attributed to the defendant as diversionary also constituted the charge of self-money laundering, without adequate chronological delimitation of the conduct.

Distinction Between Crimes

The Court of Cassation, referring to previous case law, has stressed that the mere transfer of sums of money from the bankrupt company to other companies does not automatically constitute the crime of self-money laundering. It is indeed fundamental that there is an effective distinction between the conduct of bankruptcy and that of self-money laundering, with the addition of a dissimulative element that hinders the identification of the illicit origin of the money.

• The conduct of fraudulent bankruptcy is constituted by the diversion of assets.
• For self-money laundering, further activity is required that creates difficulties in identifying the criminal origin.
• Case law has highlighted the importance of the quid pluris to avoid overlaps between the two crimes.

Conclusions

Judgment No. 20152 of 2024 represents an important guide for legal professionals, clarifying the boundaries between fraudulent bankruptcy and self-money laundering. The Court of Cassation has reiterated the importance of a rigorous interpretation of the contested conduct, to ensure the correct application of criminal law. In a context where economic conduct can intertwine and overlap, it is essential to maintain clarity and rigor in the legal analysis of criminal offenses.