Fraudulent bankruptcy: commentary on Cass. pen. judgment no. 36582 of 2024

The recent judgment no. 36582 issued by the Court of Cassation, Fifth Criminal Section, on October 2, 2024, offers important food for thought regarding the figure of the de facto director in the context of fraudulent bankruptcy. The case concerns A. A., convicted in the first instance for fraudulent bankruptcy and tax offenses, but the Court annulled the sentence limited to one count due to the statute of limitations having expired, confirming the defendant's criminal liability for the rest.

The role of the de facto director in fraudulent bankruptcy

The Court of Cassation reiterated that the de facto director, pursuant to art. 2639 of the Civil Code, is subject to the same duties and responsibilities as the de jure director. This implies that if an individual continuously and significantly exercises management powers, they are liable for any criminally relevant conduct.

The person who assumes the qualification of de facto director is burdened with the entire range of duties to which the de jure director is subject.

In the case of A. A., the Court highlighted how his actions and the corporate structure suggested a clear intention to avoid direct responsibility, using other individuals as "front men." The evidence presented, including his role as a founding partner and his management of corporate operations, confirmed his position as de facto director.

Implications of the statute of limitations

A crucial aspect of the judgment is the analysis of the statute of limitations. The Court declared the offense charged in count 5 extinguished due to the statute of limitations having expired, illustrating how the limitation period can also apply at the appellate stage. This principle, established by art. 129, paragraph 2, of the Code of Criminal Procedure, allows the Court to annul the judgment without referral if it recognizes a more favorable ground for non-punishment.

• The statute of limitations for the offense referred to in count 5 expired after the pronouncement of the territorial court.
• The Court emphasized the importance of clear evidence of non-punishment to proceed with the annulment.

This decision highlights how defense strategies in financial crime cases must carefully consider the timing and methods of prosecution, as the statute of limitations can play a decisive role in the final outcome.

Conclusions

In conclusion, judgment no. 36582 of the Court of Cassation offers an important reflection on the concept of the de facto director and criminal liability in matters of fraudulent bankruptcy. It clarifies that mere formality does not exempt a person from their obligations, while the statute of limitations acts as a safeguard for the defendant if respected. Jurisprudence continues to evolve, highlighting the complexities of business management and the associated legal risks.