Commentary on Judgment No. 27123 of 2023: Fraudulent Transfer of Assets and Specific Intent

The judgment No. 27123 dated May 3, 2023, filed on June 22, 2023, by the Court of Cassation, provides an important reflection on the crimes of fraudulent transfer of assets and the complicity of individuals in the crime. The case in question, concerning the defendant A. C., highlights how the Court interprets the conditions of criminal responsibility in complex contexts, where specific intent is not necessarily shared by all participants in the crime.

Complicity in the Crime

According to the Court, it is possible for an individual to be held liable for complicity even in the absence of specific intent to evade legal provisions, provided that at least one of the accomplices acts with such intent and that the others are aware of this intent. This principle is fundamentally important because it broadens criminal responsibility, highlighting cooperation among individuals even in the absence of an explicit agreement.

  • Shared responsibility: at least one accomplice must have specific intent.
  • Awareness of others' intent by the other accomplices.
  • Specific intent is not excluded by the presence of competing purposes.

Analysis of the Legal Maxim

Fraudulent transfer of assets - Complicity in the crime - Subjective element - Specific intent - Necessary existence for each accomplice - Exclusion - Conditions. In the case of fraudulent transfer of assets, an individual is liable for complicity even if they are not motivated by the specific intent to evade legal provisions regarding prevention or to facilitate the commission of one of the crimes referred to in Articles 648, 648-bis, and 648-ter of the penal code, provided that at least one of the accomplices acts with such intent and that the first is aware of it. (In the reasoning, the Court clarified that specific intent is not excluded by the existence of competing purposes, which are not necessarily and exclusively linked to the need to "rid oneself" of assets in view of a possible confiscation).

The legal maxim in question clarifies that complicity in the crime of fraudulent transfer of assets does not require all participants to share the same specific intent. It is sufficient that one of them acts with the intent to evade the law and that the others are aware of this intent. This approach proves crucial in complex cases, where individual motivations may vary, but the overall action is aimed at an illicit objective.

Conclusions

The judgment No. 27123 of 2023 by the Court of Cassation represents a significant milestone in the Italian legal landscape regarding crimes of fraudulent transfer of assets. It clarifies how criminal responsibility can extend to those who, despite lacking specific intent, participate in unlawful conduct aware of others' intentions. This principle, while it may raise questions about the fairness of criminal responsibility, underscores the importance of a rigorous approach in the fight against fraud and economic crimes. It is essential for legal professionals to consider these implications in their defense and advisory strategies.

Bianucci Law Firm