Commentary on Judgment No. 45788 of 2024: Embezzlement and Fraudulent Bankruptcy

The ruling No. 45788 of October 17, 2024, issued by the Court of Cassation, offers important insights into the legal principle of "ne bis in idem" and the implications related to the crimes of embezzlement and fraudulent bankruptcy. In this case, the Court emphasized that a previous judgment for embezzlement, which ended with a ruling of no grounds for proceeding due to the statute of limitations, does not preclude a subsequent proceeding for fraudulent bankruptcy concerning the same assets. This clarification is essential for understanding the differences between the two criminal offenses and their specific characteristics.

The Case and the Court's Decision

In the case at hand, the defendant, G. I., was initially accused of embezzlement, but the proceedings concluded due to the statute of limitations. Subsequently, he was subjected to a new proceeding for fraudulent bankruptcy due to diversion, accused of diverting assets during the bankruptcy phase. The Court clarified that, although the two charges involved the same assets, there was no factual identity between the criminal offenses. Indeed, the crime of fraudulent bankruptcy includes additional elements, such as endangering the creditors' rights and the declaration of bankruptcy, which increase its severity.

The Principle of "Ne Bis in Idem"

"NE BIS IN IDEM" - Embezzlement already judged with a ruling of no grounds for proceeding due to the statute of limitations - Subsequent judgment for fraudulent bankruptcy due to diversion - Violation of the principle of "ne bis in idem" - Exclusion - Reasons. Regarding the prohibition of "bis in idem," the previous judgment for the crime of embezzlement, concluding with a ruling of no grounds for proceeding due to the statute of limitations, does not preclude the subsequent one for fraudulent bankruptcy due to the diversion of the same assets, as there is no "idem factum" between the two criminal offenses.

The Court, in its reasoning, clarified that the distinguishing element between the two offenses lies in the different configuration of the act. While embezzlement focuses on the act of taking assets from the rightful owner, fraudulent bankruptcy due to diversion involves an additional violation, that of protecting creditors, aggravated by the defendant's state of insolvency.

Legal Implications and Final Reflections

This ruling thus represents an important confirmation of the need to analyze each criminal offense independently, avoiding hasty conclusions that may infringe upon the rights of the defendant or the creditors. The substantial differences between the crimes of embezzlement and fraudulent bankruptcy must be well understood, especially in a context where economic crises lead to an increase in reports of property crimes.

In conclusion, judgment No. 45788 of 2024 represents a significant step forward in clarifying the regulations related to this matter, offering insights for both legal professionals and ordinary citizens. The correct application of the principle of "ne bis in idem" is fundamental to ensuring justice and protecting the rights of all parties involved.

Bianucci Law Firm