Criminal law, c.d. Voluntary disclosure, criminal preventive seizure, Court of Cassation, III Criminal Section, Judgment n. 272 of 09/01/2018

Essential lines of the arguments of the Supreme Court of Cassation

Appeal against the order of the Court of Rome review on 26/05/2017.

1. By order dated 26.05.2017, filed on 29.05.2017, the Rome Review Court rejected the precautionary appeal presented in the interest of the suspects … .. on 02.03.2017 against the rejection of the request for revocation of the provision for preventive seizures aimed at confiscation pursuant to art. 240, co. 1, c.p., ordered by the GIP / court of Rome on the shares of ….. s.r.l. owned by……

2. The defendant of the suspects has been appealed in cassation, registered in the special register pursuant to art. 613 of the Italian Civil Code, by deducting a single reason, as set out below, within the limits strictly necessary for the motivation pursuant to art. 173 available att. cod. proc. pen.

2.1. Deduce, with this single reason, the defect referred to in art. 606, lett. b), c.p.p., in terms of the violation of articles 321 c.p.p. and 240, first paragraph, cod. pen. as well as the apparent lack of motivation.

In short, it supports the applicants’ defense that the court wrongly denied the revocation of the seizure on the assumption that the sums covered by the money laundering crime would not consist exclusively of the proceeds of the offenses referred to in the c.d. voluntary disclosure, but would also affect the profit of the crime of embezzlement, whose fumus the court does not deal with following the assessment already made at the preliminary hearing and appeal for cassation, not being the existence of this last crime affected by ‘ an element which had been invoked by the defense at the request for the release from seizure first and then by appeal; the above, according to the applicants, would not be true, as only the suspect …. (here non-recurring) the crime of money laundering of foreign capital used by the trust company … …. for the purchase of the shares of …., current applicants, in the company … .. s.r.I .; it should be noted that the current applicants are not investigated in the crime of money disputed in Chapter a), and that, moreover, there is no reference in the dispute, if not in descriptive terms, to the sums of which the two applicants would have been improperly damage of their own companies, conduct disputed to the head b) of the precautionary imputation; the same … …. in the voluntary disclosure would have ascertained that the foreign funding, equal to …. … … used for the purchase of the company shares had been set up before the one in which the embezzlement would have been consumed; the same executive procedures of the alleged embezzlement would appear for the applicants ontologically incompatible with the thesis of recycling, having succeeded one another between …….. and the … ..s.r.l. and the brothers …, on the one hand, and between the latter and the …. s.r.I., on the other, only payments traced with the bank transfer method; in essence, the reconstruction of the Court of Rome would therefore override the perimeter of the charges on the basis of which the seizure was ordered, both as regards the reconstruction of the historical conduct and the subjective attribution of charges, having the same PM divided the charges, from one side, ascribing to … the money-laundering complaint concerning the foreign sums repatriated through his fiduciary for the purchase of the shares of … srl of … and, secondly, ascribing to the latter the crime of embezzlement with respect to the sums paid in their favor by the two family companies, so that the claim that the crime referred to in chapter a) would also concern the current applicants are not involved in the indictment and the precautionary framework emerged; to this we must add, the two applicants point out, an element of novelty that would have emerged after the indictment ordered by the GUP and after the decision of this Court, namely the definition of the procedure c.d. of voluntary disclosure pursuant to law no. 186 of 2014, which would have regularized the return of foreign capital under the tax profile through the purchase of the shares of … s.r.I., ie the amount subject to the charge of recycling sub a); it is noted that the defensive documentation, only keeping to the sums object of the head a) would cover only part of the sums object of the tax offenses sub b) and c) of the heading (ie the unfaithful declaration crimes under article 4, d. 74 of 2000), which also refer to sums that take advantage of the disputed misappropriation and to those that make up other incomes that, according to the GdF, i … .. would not have declared, or to the total amount of tax assessment performed and for which we proceeded with a separate sequestration for equivalent pursuant to art. 322-ter cod. proc. pen., on the accounts and assets of the current applicants; it is argued that, although referring only to a fraction of the imputation, the “voluntary collaboration” procedure would represent a new fact that, even if it was deemed unsuitable to undermine the crime of embezzlement, would undoubtedly “purged” the crime sub a) and cut off the reasons that had determined the seizure of the shares that served or were destined to commit it; the failure to apply the art. 5-quinquies, law n. 186 of 2014 (which determines as a result of the voluntary disclosure procedure the extinction of the crime of money laundering and related tax offenses) would constitute a violation of the law as it constitutes new fact that would render the invoked foreclosure procedurally ineffective to a revaluation of the fumus consisting of the referral to trial; in short, keep the preliminary estimate of the shares of … s.r.l. as a function of confiscation with reference to the crime of embezzlement (with respect to which the transfer of shares can not have had any instrumental function since it was consummated in earlier times), in the face of the incidence that the aforementioned “voluntary collaboration” procedure in relation to the crime of money laundering, would be tantamount to allowing the seizure by equivalent of the profit of that offense, in the absence of a specific regulatory provision that allows it, thus determining an unjustified duplication of precautionary measures for the same case, expected for profit not declared to the Revenue of undue appropriation the PM has already proceeded to the sequestration of tax for equivalent ex art. 322-ter c.p.p. on assets and accounts of the current suspects.

CONSIDERED IN LAW

3. The joint appeal is unfounded.

4. To improve the comprehensibility of the appeal, it is necessary to state what emerged from the contested provision and the acts that constitute the prerequisite: a) that the current applicants are investigated for the crime of embezzlement (Article 646 of the Criminal Code, Chapter b) and crimes of unfaithful declaration (art.4, d.algos No. 74 of 2000, chapters c) and d), but not also of the crime of laundering (Article 648 bis of the Criminal Code, chapter a), the latter being contested only to the suspect … .; b) that the shares of the company … .s.r.I.) referable to the current suspects, have been subjected to preventive seizure as they are subject to optional confiscation pursuant to art. 240, co. 1, cp, which provides for the application of the asset protection measure of assets that served or were intended to commit the crime (in this case, according to the indictment, the crime of embezzlement beyond …., Committed to the detriment of …. .srl and of … srI), sums then used for the capitalization operation of …. s.r.I .; c) that, according to the investigative activity, both the preliminary capitalization of … LTD realized between 21.09.2009 and 26.07.2010, as well as the subsequent purchase of the shares at the price of …., as determined by deed dated 19.12.2012, against the originally established amount of …. on the part of a foreign company formed ad hoc on 16.11.2010, they have been used to transfer considerable financial resources from abroad to the personal accounts of … …. and also to give a formally legal capacity to such availability, putting them back in the circuit economic after having subtracted from the tax burdens and other obligations to repay vis-à-vis those entitled …. LTD Ed … .. s.r.I., from whose boxes were taken illicitly; d) that the fictitious operation was therefore only aimed at bringing the sums of the crimes examined above into the coffers of the suspects, that is, embezzlement and unfaithful declaration.

5. In those circumstances, the applicants dispute the rejection of the request for the lifting of the preventive seizure on the aforementioned company shares, not sharing the arguments of the review court, according to which the sums covered by the money laundering crime are not constituted exclusively by the proceeds of the offenses object of the cd voluntary disclosure, but would also affect the profit of the crime of embezzlement, the fumes of which the review judges do not deal with following the assessment already made at the preliminary hearing and appeal for cassation, not being the existence of this last crime affected from the element that occurred that the defense had invoked in the application for release of seizure first and then appeal.

In support of this assumption, the suspects propose, through the recall of procedural documents (to which they refer, constituted by the inspection reports of the Revenue Agency and the related payment receipts), that the same A.F. at the time of voluntary disclosure, he had ascertained that the foreign funding, equal to € … .. used for the purchase of the company shares had been set up before the one in which the embezzlement would have been consumed; they add, then, that the same executive procedures of the alleged embezzlement would appear ontologically incompatible with the thesis of recycling, having succeeded one another between … … s.r.l. and the … … s.r.l. and i … …, on the one hand, and between the latter and … s.r.I., on the other hand, only payments traced using the bank transfer method. All this would mean, in essence, that the reconstruction of the Court of Rome override the perimeter of the charges on the basis of which the seizure was ordered, both as regards the reconstruction of the historical conduct and the subjective attribution of charges, having the same PM divided the charges, on the one hand, ascribing to … the money-laundering complaint concerning the foreign sums repatriated through his fiduciary for the purchase of shares in the … s.r.l. of … and, secondly, ascribing to them the crime of embezzlement with respect to the sums paid in their favor by the two family companies, so that the claim that the crime referred to in chapter a) would also concern the current applicants would be extraneous to the indictment and the precautionary framework that emerged.

Believes the College that these arguments are entirely without merit, because through these complaints, under the apparent deduction of defects of the law, they are actually criticizing the reconstruction of the facts and the evaluation made by the judges of the review of the Evidence acquired so far in the precautionary phase by the prosecution’s body, therefore in substance criticizing a motivational defect, incompatible with the limited syndicate granted to this Court in consideration of the narrow perimeter imposed by art. 325 c.p.p., which limit, the deductibility to the only defect of violation of the law in terms of appearance or absolute lack of motivation, in the certainly certainly not recognizable. It is known, in fact, that in the matter of review of the real precautionary measures, in the notion of “violation of the law” for which only an appeal can be lodged in cassation pursuant to art. 325, paragraph 1, cod. proc. pen., include the absolute lack of motivation or the presence of merely apparent motivation, as they are related to the objection of precise procedural rules, but not the manifest illogicality, which can be denounced in the judgment of legitimacy only through the specific and autonomous ground of appeal referred to in e) of the art. 606 same code (Section U, No. 5876 of 28/01/2004 – Dep. 13/02/2004, Rv. 226710). To this must be added that the legitimacy syndicate on the motivation of the contested provision meets the precise text limit set by art. 606, lett. e), cod. proc. pen., with the consequence that any argumentative flaws can not be derived either from different evaluation of the indicative compendium, nor from the reference of the content of investigative acts, as instead claims to defend the applicants where it claims that the same A.F. in the context of voluntary disclosure it would have ensured that the foreign funding, equal to € … used for the purchase of the company shares, would have been constituted in a period prior to that in which the embezzlement would have been consumed (Section 1 , No. 3289 of 28/04/1999 – Dep./15/06/1999, Rv. 213728), being, in any case, elements that, assuming an appreciation in fact, fall outside the cognitive framework of this Court.

6. In any case of groundless censures, the reference made by the court of the review to the pre-exclusive effect that on the fumus of the alleged offenses would not only impose not only the decree that makes the judgment (see, in terms: Section 3, No. 44639 of 29/09/2015 – Dep. 06/11/2015, Rv 265570, according to which, in the matter of appeal against the provisions which include actual precautionary measures, in the appeal for cassation, if the decree the judgment in relation to the alleged offenses, is precluded any union on the “fumus commissi delicti”, considering that the evaluation of merit performed by the judge of the preliminary hearing is such as to absorb the accidental accomplishment on the existence of this application condition of the real precautionary measure), but above all the previous decision taken by this same Court. It is sufficient, in fact, to recall the motivational content of the sentence of this Court to highlight the lack of merit of the complaints. This Court, in fact, with the sentence Sez. 2, n. 44405 of 2016, issued on 15.07.2016, Dep. 20.10.2016, called to rule on the appeal proposed by …, which was against the provision that had confirmed the decree of preventive seizure issued (also) against him on 4.1.2016 by g.i.p. of the Court of Rome, on the one hand, had highlighted, on the subject of the relationship between the imputation sub a) challenged only to … and the other charges (contested to the current suspects and applicants), which “appears to be entirely reasonable, in law, that the coindagati have been called to answer the predicate offense of embezzlement, and today’s investigation of the recycling that is in hypothesis achieved “; on the other, and above all, he had underlined that … he had not adequately confronted the articulated arguments underlying the order of the Court of Review, which, after highlighting the reasons why he had considered the existence of the fumus boni iuris of the presumed offense (ie, of the crime of embezzlement), had – according to Section II “of this Court – incensurably valued as the basis for the assessment of the existence of the fumus boni iuris of the money-laundering alleged against the applicant , the articulated elements summarized in the proceedings, concluding that the … had “violated the obligations envisaged for the financed intermediaries, failing to identify (or rather to communicate) the beneficial owner of …. ltd. (… he was not able to provide PG with any documentation relating to the formalities to which he was required pursuant to Article 18 of Legislative Decree No. 231/2007). The appellant was therefore aware of the real ownership of the company being transferred and of the true purpose of the transaction (…). With his own work he has thus allowed the …. to get back – through the payment of the consideration of the fictitious transfer – of huge sums that, precisely in consideration of the nature of the operation, could only have criminal origin “(f. 9),.

It is therefore evident from the stated motivation of the decision of this Court, although incidentally stated in relation to the position …, that the conduct of the current suspects had already been exactly qualified and held, on the basis of the elements assessed by the court, as integral the extremes of the crime disputed of embezzlement in the terms object of the prosecution, and in relation to which the seizure of the company shares has been ordered for which revocation was requested in vain. From this judgment, therefore, does not see reason to have to depart from this College, which is correct as argued by the court about the question of the persistent configurability of the fumus.

7. Furthermore, the additional defensive grievance, according to which the preventive seizure of the shares of the s …. s.r.l. as a function of confiscation with reference to the crime of embezzlement (with respect to which the transfer of shares can not have had any instrumental function since it was consummated in an earlier period), in relation to the incidence that the “voluntary collaboration” procedure compared to the crime of money laundering, would be tantamount to allowing the seizure by equivalent of the profit of that offense, in the absence of a specific regulatory provision that allows it.

The complaint is unfounded. And in fact, on the point the judges of the review motivate arguing in the sense that the sums object of the disputed recycling of which answers the …. and with respect to which the seizure of the shares subject to the current appeal pursuant to art. 321, co. 2, c.p.p. and 240, co. 1, of the Criminal Code, are not exclusively constituted by the proceeds of the offenses subject to voluntary disclosure, but also relate to the profit of misappropriation (whose fumus, as mentioned, can no longer be discussed here for the reasons set out above), to that adding, as evidenced by the court, that the defensive documentation certifies the definition of the voluntary collaboration procedure only in relation to part of the sums object of the tax offenses sub c) and d), sums that do not concern all the contested annuities.

However – on the other hand, the generic defensive complaint according to which this would lead to an unjustified duplication of precautionary measures for the same case (since, it is stated, for the undisclosed profit to the Revenue of undue appropriation the PM had already proceeded to the tax seizure for equivalent ex article 322-ter cpp on assets and accounts of the current suspects), duplication of which there is no trace in the contested provision, nor among the compulsory acts by this Court in the precautionary incident of legitimacy pursuant to art. 325 c.p.p. – the defensive grievance contrasts with the same reason found in the provision for the preventive seizure of the company shares, subject to the real precautionary measure since they are subject to optional confiscation pursuant to art. 240, co. 1, criminal code, which provides for the application of the asset security measure of assets that served or were intended to commit the crime (in this case, according to the indictment, the crime of embezzlement beyond …., Committed to the detriment of … . srl and of … srI), sums then used for the capitalization operation of … srl.

It is therefore evident that – excluding the possibility of being able to envisage a different reconstruction of the facts based on unspecified investigative acts (Revenue Agency, Finance Police), in order to support this incidental precautionary phase of legitimacy, in order to support that keep the preventive seizure of the shares of … srl as a function of confiscation with reference to the crime of embezzlement (with respect to which the transfer of shares can not have had any instrumental function since it was consummated in earlier times) – at present, taking into account the limits of the union of this Court, it can not to doubt the legitimacy of the maintenance in confiscation of the shares that may be subject to optional confiscation in relation to the crime referred to in art. 646 cod. pen. as assets that served or were destined to commit the crime in the terms indicated.

8. Regarding the “indirect” incidence that the voluntary disclosure procedure (made, it should be noted, by the two suspects) would have had on appropriative crime as per Article 646 of the Italian Civil Code. pen., must remember that adherence to “voluntary cooperation” or “voluntary disclosure” (foreign) – procedure introduced by Law 12/15/2014 n. 186 (effective from 1.1.2015) – determines the exclusion of the punishment for the following tax offenses pursuant to Legislative Decree no. 74/2000: a) fraudulent declaration through the use of invoices or other documents for non-existent transactions (Article 2); b) fraudulent declaration through other devices (article 3); c) unfaithful declaration (Article 4); d) omitted declaration (Article 5); e) failure to pay certified withholdings (Article 10-bis); f) omitted payment of VAT (Article 10-ter). If committed in relation to “covered” tax crimes, the punishment of the conduct provided for in articles is also excluded: a) 648-bis c.p. (Recycling); b) 648-ter c.p. (use of money, goods or utilities of illicit origin).

On this point, the applicants argued that, following the definition of this procedure, the forfeiture of the seizure on the shares of … srI would derive, in terms of the objective extent, since the aforementioned sequestration was established on the precautionary assumption, considered no longer current, that the company has served as a vehicle for reintroduction in the ways and in the terms described in chapter a) of the capital from abroad, then re-entering the full availability of … with suitable methods to rectify or, in any case, to obtuse the reference to the unlawful conduct from which they were generated, as stated in the decree of preventive seizure 4.01.2016. The complaint can not be proposed here because it is incompatible with the nature of the incidental cautionary phase of legitimacy.

And in fact, the appreciation of the invoked “objective” extension of the voluntary collaboration procedure to a crime other than those strictly required, certainly presupposes a legal assessment that has, however, as an indissoluble assumption, an appreciation of merit that is incompatible with the procedure indicated by the art. 325 cod. proc. pen. It must not, in fact, be forgotten that the forecast referred to in Law 12/15/2014 n. 186 relates to a non-punishable lawsuit whose “direct” effects are expressly limited by the legislator to certain tax penalties (in addition to the aforementioned crimes referred to in articles 648-bis of the Italian Penal Code and 648-ter of the Italian Criminal Code), including it is not the crime of embezzlement.

The verification, therefore, of the “objective” and indirect extension also to this crime – although here of interest, for the purpose of maintaining the real caution on company shares susceptible of optional confiscation – of the aforementioned non-punishment reason is a question that goes beyond the judgment of legitimacy on the decision to re-examine the application provision of a real precautionary measure, because it is relevant to the merit (evidently assuming, according to the defensive prospect, the analysis of the documentation pertaining to the restructuring operations of the corporate group described in the report of the ct Dott. …, and the related operation of return of capital held abroad), where the control of legitimacy is limited to the justifying reasons for the measure adopted.

In any case, the Board observes, the thesis of the indirect objective extension of the cause of non-availability on the precautionary measure ordered for the appropriating crime, would seem to contrast with the same expected legal provision that the law provides that the exclusion of punishment is it also extends to subjects – external to the voluntary collaboration procedure – who have committed or conceded to commit “covered” crimes. And indeed, based on the art. 1 co. 5 of Law 186/2014, the exclusion of the punishment provided for by art. 5-quinquies co. 1 of the D.L. 167/90 operates against all those who have committed or contributed to commit the crimes indicated therein. The legislator has thus solved the problem of the nature of the penalties linked to the voluntary disclosure procedure, attributing to them an objective value, but limiting the effects to “covered” crimes only, thus excluding the extension of the cause of non-punishment for different crimes, as in the present case, committed by persons responsible for the alleged crime of money laundering (the latter attributable to a third party, as in this case), ie the crime of embezzlement.

9. The joint appeal must therefore be rejected in its entirety.

Source Supreme Court of Cassation