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Criminal Cassation, Section II, Judgment No. 13352/2023: Self-Laundering in Light of Bankruptcy for Distraction

The recent ruling by the Supreme Court of Cassation, No. 13352 of March 30, 2023, provides an important interpretation regarding self-laundering and bankruptcy for distraction. 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 that govern the matter and the importance of distinguishing between the two offenses.

The Case Under Review

The case involves A.A., investigated for bankruptcy for distraction and self-laundering. The Court of Freedom in Rome had rejected the request for preventive seizure made by the Public Prosecutor, arguing that the transfer of sums from a company that subsequently went bankrupt to other companies in the group did not constitute self-laundering. However, the Court of Cassation accepted the appeal, considering that the reinvestment of illicit proceeds in economic activities could indeed configure a case of self-laundering.

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

Analysis of the Judgment

The Court clarified that to configure self-laundering, a conduct of dissimulation following the underlying crime, in this case, bankruptcy, is necessary. It is essential that there is a change in the legal ownership of the illicit proceeds, as this complicates the identification of its origin. The Court emphasized that traceable operations and the issuance of invoices do not automatically exclude punishability, since it is necessary to assess the suitability of the conduct to obstruct the identification of the criminal origin of the asset.

  • The dissimulating conduct must be autonomous and subsequent to the underlying crime.
  • The transfer of illicit proceeds to a different subject may constitute self-laundering.
  • It is necessary to analyze the dissimulating capacity of the conduct at the time of its realization.

Conclusions

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