Criminal law, De facto management, criminal preventive seizure, expert assessment incompatible with a precautionary incident, Court of Cassation, III Criminal Section, Judgment n. 274 of 09/01/2018

Essential lines of the arguments of the Supreme Court of Cassation

Appeal against the order of the Court of the review of SANTA MARIA CAPUA VETERE on 15/05/2017.

2. Appealed in cassation on …., Through the defense counsel, registered in the special register pursuant to art. 613 of the Italian Civil Code, by deducing two reasons, hereafter set out within the limits strictly necessary for the reasoning pursuant to art. 173 available att. cod. proc. pen.

2.1. Deduce, with the first reason, the defect referred to in art. 606, lett. b) and c), c.p.p., in terms of the absolute lack of motivation with reference to the alleged offense, in relation to the non-existence of fumus commissi delicti. In summary, the appellant’s defense maintains that during the Chamber’s hearing on 15.05.2017 an articulated memorandum was filed, with attached documentation, aimed at refuting the existence of the fumus as held in the seizure decree; the assumption of the seizure by equivalent was contested, observing that the suspect could not be considered the de facto administrator of the company because of the documented operational capacity of the spouses …. (parents of the suspect and owners of the company) in the year …., object of dispute; the GIP, followed by the review court, had ruled out this ability on the part of the suspect’s parents on the basis of an alleged serious illness and incapacity to conduct the ordinary administration of an enterprise, taken over by the military operating on the occasion of the access to the domicile after a distance of four years from the facts in dispute and aimed at carrying out the activity delegated by the PM; to this end the applicant, after having illustrated the documentation filed (reports of defensive investigations related to s.ii.tt. made by two workers of the company, technical report certified by the designer …. attached to the pdcn …. municipality of ….; determination of the technical area n. … .. of the Municipality of …. having as object the assignment to the … of the technical assignment related to the work of completion of the network … and installation of ….), underlines how from the same undoubtedly emerged the full capacity of the father of the suspect, absolutely able to manage the company operationally, what documentary would confirm in the appointment of the same, in 20 …, as liquidator of the same company, appointment made by deed notary attesting to the capacity of the parent of the suspect because, otherwise, the notary could not proceed with the drafting of the deed; therefore, the contested order is rejected for not having examined the said documentation, with consequent violation of the law, since the court of the review has failed in its task of checking the legitimacy of the applied precautionary measure, failing to exercise that autonomous appreciation relating to the elements provided by the defense, flattening to the considerations expressed by the PG, the PM and the GIP; it would not be able to calm this motivational deficit, nor the reference to the existence of a delegation to operate on one of the cc / cc registered in the company, which is also shared with all the members of his family, nor even the guarantees given in favor of companies that were dated after the period in dispute; in relation to the above, the defense observes, the accusatory framework was contested by demonstrating that the tasks actually performed by … appeared to be fully compatible with the role of the company’s only second-level administrative employee, as such enabled to perform and receive of payments also through the relative banking information, where every strategic and organizational decision was exclusively remitted to the parents of the suspect, owners of the company; the motivation, therefore, would be undermined by the apparent defect of motivation.

2.2. Deduce, with the second reason, the defect referred to in art. 606, lett. b) and c), c.p.p., in terms of the absolute absence of the motivation with reference to articles 321 and 324, c.p.p. and 322-ter, c.p. In short, the defense of the appellant claims that the defense had lodged a technical-accounting opinion, drawn up by a professional, concerning the exact determination of the amount of the tax evaded, to the judge of the review; the technician, in particular, had stated that the disputed tax liability had not been correctly quantified, since the actual figures that emerged from the assessments of the delegated PG were not taken into consideration in the calculation of the VAT due, in light of which the total amount of the evaded tax would have to be redetermined in € …. while in the calculation of IRES the sum eventually due and abstractly contestable should have been quantified in ….., therefore an amount of tax evaded equal to € …; the court, on this point, would have omitted all valuation by referring to the stage of merit the exact determination of the tax evaded, being incompatible with the ratio and timing of the review procedure a similar study in the incidental cautionary phase by appointment of c.t .; otherwise, the appellant claims, the court should have carried out a concrete analysis of the data reported by the c.t. of the defense as extrapolated from the investigative acts and, therefore, to eventually become a congruous reduction of the amount that can be seized for the purpose of confiscation by equivalent; the postponement of this analysis to the merit stage, considering this finding incompatible with the incidental phase, would be a clear violation of the obligation to verify the defensive deductions even in the precautionary stage.

CONSIDERED IN LAW

3. The appeal is inadmissible.

4. And indeed, both profiles of grievance are addressed with arguments immune from defects by the judges of the review, which argue completely and completely immune to the vices reported on both the complaints.

In particular, in the order, as regards the role of active management of the suspect in the company, the review judges specify that the power to move capital attributed to the appellant is incompatible with the purely executive qualification of the superior of the owner of a company, assuming autonomy and independent decision-making power; in particular, according to the ordinance, the existence of a fiduciary tie appears to strengthen the ascribability to the suspect of the legal representative status, denoting the split between the formal and effective ownership of the most relevant operations for the continuation of the activities business; in particular, among the elements valued by the contested order, there are in particular the declarations made to the GdF by the legal representatives of the companies that at the time held commercial relations with the … ..srI, as well as the delegation to operate on the / c bank lit at the Bank …. in the name of the company, the personal guarantee registered in favor of the company, as well as the precarious health conditions of the parents of the suspect who made them unable to carry out ordinary corporate management actions.

5. However, observes the College, in the presence of this argumentation apparatus, the defensive claims, under the apparent censure of defects of law violation, actually betray the ill-concealed attempt to criticize the reconstruction of the facts and the evaluation of the circumstantial elements made from the review court, thus presenting to the evidence an articulated “dissent” with respect to the assessments of the review court, a disagreement that does not even translate (and could not be said in this incidental precautionary case, given the narrow limits imposed by Article 325 of the Penal Code, which restricts the deductible defects only in violation of the law: for all, see Section U, No. 5876 of 28/01/2004 – Dep. 13/02/2004, Rv. 226710) in the presentation of motivational errors. It therefore follows that the ground of appeal is inadmissible because it is proposed for reasons other than those permitted by law.

6. The grievance profiles raised in the first plea, are in any case also manifestly unfounded, especially in light of the concise but sufficient argumentative apparatus and taking into account the narrow limits of the union exercised by this Court (and by the review court ) in the context of a real precautionary incident.

In fact, this Court has repeatedly stated that in terms of real precautionary measures, both in the review proceedings and in the legitimacy syndicate, it is not possible to verify the existence of the crime, but only to ascertain whether the abstract case of alleged offense from the accusation you find comfort in the penal provision, on the basis of the probable commission of the same fact. Likewise, as regards in particular the conditions of applicability of the preventive seizure in the preliminary investigation phase, the reasons for prevention and relevance of the thing to be seized must be configured with the crime, as described above, provided by the first and second paragraphs of the ‘art. 321 cod. proc. pen., to be checked also in terms of summary and provisional (Section 6, No. 3590 of 26/11/1993 – Dep. 07/02/1994, Rv. 196629).

And, on the point of censure, the question “management” in fact of the suspect of … …, is also a matter of fact unquestionable in the legitimacy. In fact, it must be remembered that the notion of a de facto administrator, introduced by art. 2639 cod. civ. postulates the exercise in a continuous and significant manner of the typical powers inherent in the qualification or function; nevertheless, “significance” and “continuity” do not necessarily entail the exercise of “all” of the powers of the management body, but require the exercise of an appreciable managerial activity, carried out in a non-episodic or occasional manner. The assessment of the symptomatic elements of such management or corporate co-management is the subject of factual appreciation that is unquestionable in the legitimacy, if supported by a congruous and logical motivation (see, among others: Section 5, No. 43388 of 17 / 10/2005 – Dep. 30/11/2005, Rv. 232456).

Consequently, it is clear that the applicant, through the presentation of the factual elements described above in support of the non-existence of a de facto management, essentially asks this Court to replace the assessment made by the review judges, thus seeking to check the logic of the motivation (operation completely prohibited not only in this incidental precautionary remit pursuant to Article 325 of the Code of Criminal Procedure, but totally inhibited in the legitimacy, so much so that it has been repeatedly stated that the legitimacy check on the correctness of the motivation does not allow to the Court of Cassation to substitute its own assessment for that of the merit judges with regard to the historical reconstruction of the events and the reliability of the sources of evidence, let alone to access the deeds, not specifically indicated in the grounds of appeal as provided for by the Article 606, first paragraph, letter e) of the Italian Civil Code proc. pen. as amended by Law n. 46 of 2006, in order to verify the lack or illogical nature of the motivation: Sec. 1, n. 20038 of 09/05/2006 – Dep. 06/13/2006, Rv. 233783).

7. The second reason, concerning the quantum of tax evaded, deserves no better fate. On this point, the court of the review justifies observing how the inductive assessment method of the evaded taxes appears sufficient, together with the bank investigations, to integrate the fumus necessary to consider the precautionary measure legitimately adopted, adding that the fact that the aforementioned assessment is based on inductive criterion does not undermine the legitimacy of the same nor the existence of the fumus; to this end, not only emphasizes that the determination of the tax evaded with the inductive assessment method is legitimate as a method provided by law, but also adds that the dispute relating to the slavish transposition of data provided by the AI. in the body of the CNR it can not be evaluated in the interim accident, since it is the same time to corroborate the thesis of not exceeding the threshold of punishment and, therefore, to be delegated to the merit stage; nor the reference to defensive investigations, adds the court, is capable of undermining the merits of the accusation and therefore of the fumus of the crime, limiting itself to offering a contrary cue acquired without the adversarial with the PM, since the aforementioned defensive investigations were produced on the day hearing; finally, concludes the contested order, any disputes on the volume of the evaded taxes must be remitted to the merit stage, since it is not possible to carry out an in-depth investigation in the review by ct, incompatible with the incidental proceeding, or an act of part in absence of contradictory, a deed of part can be considered sufficient to scratch the fumus provided by the documentary evidence provided by the AF.

8. This motivation is completely immune to defects, with respect to which the defensive complaints are completely unprotected. The reference to the technical-accounting opinion, prepared by a professional, concerning the exact determination of the amount of tax evaded, was in fact correctly considered by the court of the unfair review to invalidate the results of the investigative activity on the basis of which it had been prepared the relative seizure. The applicant, in fact, forgets that, on this point, the case law of this Court is granitic in affirming that in the review or appeal against a real precautionary measure, the court is not obliged to settle the technical and accounting matters for resolution requires the use of an expert assessment, constituting this a means of preliminary investigation incompatible with the precautionary incident (Section 3, No. 19011 of 11/02/2015 – Dep. 07/05/2015, Rv. 263554). Correct is therefore the refusal of the court to examine the issue of determining the quantum of tax evaded in light of the contrast between the results of the c.t. accounting with respect to the data of the AF, delegating the matter to the merit, due to the absence of powers of investigation in relation to the facts relating to the imputation, having to limit itself, for the purposes of the decision, to the evaluation of the procedural findings already acquired in the merit, with the exclusion therefore of investigations of a technical nature (see, among others: Section 3, No. 21633 of 27/04/2011 – Dep. 30/05/2011, Rv. 250016).

9. The appeal must therefore be declared inadmissible.

Source Supreme Court of Cassation