Criminal law, Motivations of the judgments of the two degrees of merit, A single logical-juridical entity, Congruity of the motivation, Factual Administrator and Company law administrator, Responsibility by way of competition, Subject element, eventual possible malice, Court of Cassation, III Criminal Section, Judgment n. 1590 of 16/01/2018

Essential lines of the arguments of the Supreme Court of Cassation

Appeal against the decision of 26/09/2016 of the Court of Appeal of Brescia

BELIEVED IN FACT

4. The defendant has put forward two grounds for appeal.

4.1. With the first plea he deduced the omitted assessment of the defensive claims, so that the provision had a mere appearance of motivation, based on the sole observation that the defendant was the legal representative of the company.

In particular, the preliminary investigation had confirmed the absence of proof of awareness on the part of the accused, while the generic extenuating circumstances had been denied solely on the basis of the previous criminal charges against the same applicant.

CONSIDERED IN LAW

6.1. The Court first observes that the examination of the grounds of appeal may be made by taking into consideration both the grounds of the judgment under appeal and that of the judgment at first instance, and this in so far as the courts of merit have adopted, as regards the profile of liability defendant, decisions and common motivational paths that can be assessed together, for the purpose of an effective reconstruction of the trial and a better understanding of the complaints of the applicant.

In fact, it is hardly necessary to remember that if the appellate judge has ascertained and evaluated, as in the case, the probative material with criteria similar to those used by the court of first instance, the reasons for the judgments of the two degrees of merit constitute a only logical-juridical entity, to which reference should be made to judge the adequacy of the motivation, integrating and completing the one adopted by the first judge any deficiencies of the appeal (Section 1, No. 1309 of 22/11/1993, dep 1994, Rv. 197250).

Indeed, when the first and second judgments agree in the analysis and evaluation of the evidence underlying the respective decisions, the motivational structure of the appeal sentence is established with the previous one to form a single complex body of argument (ex plurimis) , Section 1, No. 8868 of 06/26/2000, Rv. 216906).

6.2. In relation to the appeal proposed by … .., the contested provision has explicitly taken into account, and in this regard there is no complaint of any kind, that during the appeal the defense of today’s applicant requested the acquittal by assuming that the emoluments received from the srl … .. were completely virtual and not effective, and that the same worked as …. issuing invoices for transactions ….., in order to justify the purchase of goods …. carried out by another company, the s.r.l … .. current in …….

Because of this, the … himself had assumed the role of a mere wooden head, where the de facto administration of the two companies was attributable to another subject, which had materially achieved the proceeds of the illicit activity.

Having said that, the Territorial Court quite correctly observed that all this did not exempt the tax obligations related to the presentation of annual declarations and the payment of value added tax.

Especially since the Court of Bergamo had noted that the omissive behaviors were preordained to tax evasion, as the failure to submit tax declarations had been accompanied by the non-payment of VAT precisely in relation to operations … …, and that in any case, for the defendant, a director of law but still operating in the management of the company, the recurrence of the eventual malice was sufficient.

In this regard, it was noted that the crime of non-presentation of the declaration for the purposes of direct taxes or VAT the administrator actually responds as the main author, as the actual owner of the social management and, therefore, in the conditions to be able to fulfill the action due, while the legal administrator, as a mere namehead, is responsible for the competition for failure to prevent the event (Article 40, second paragraph, Criminal Code and 2392 of the Civil Code), provided that the subjective element required by the offending law (Section 3, No. 38780 of 14/05/2015, RV 264971), ie that the nominee has acted with the specific purpose of evading income tax or value added, or allow tax evasion of third parties (Section 3, No. 15900 of 02/03/2016, Rv. 266757).

In particular, the appellant, to whom the Tribunal Tribunal has nonetheless acknowledged an undisputed form of active participation in company life, has been fully involved in corporate management, indeed operating on the related bank accounts, thus revealing its full and expert awareness of the mechanisms and of the illicit operation of the company (in this regard, the appeal does not spell word, even though in the directly contested provision the existence of numerous convictions for events of a similar nature was noted).

Among other things, the same Lombard judge has just evoked the sufficiency of the eventual malice, and in fact on the occasions when this Court has dealt with crimes, even omissions, committed in the name and on behalf of the company, has identified in fact administrator the active subject of the crime and in the name of the competitor for not having prevented the event that according to the aforementioned law had the duty to prevent.

Precisely because most of the time the nominee has no power of interference in the management of the company to charge him the competition, this Court has resorted to the figure of the eventual malice; it has been argued that the nominee accepting the office has also accepted the risks associated with that office (see also justification Section 3, No. 38780 cit., with references, for example, to Section 5, No. 7208 of 26 / 01/2006, … and more, Rv. 233637, from last to eg Section 5, No. 7332 of 07/01/2015, Rv. 262767).

6.3. In relation to the non-granting of generic extenuating circumstances, and contrary to what the applicant claims, the ratio of the provision pursuant to art. 62-bis cod. pen. it does not require the trial judge to express an assessment of each single defensive deduction, since, on the other hand, it is sufficient to indicate the elements of overwhelming importance considered to be impeding the granting of the mitigating factors; it follows that the latter can be denied even only – as in particular – on the basis of the criminal record of the accused, because in this way any negative judgment on his personality is formulated, however implicitly (Section 2, no. 3896 of 20/01/2016, Rv. 265826).

In the same way, every reason for censorship proposed by the applicant, which instead claimed that the territorial court should have justified the reasons for the refusal, loses to the evident consistency. But in this regard the Court of Appeal had instead motivated in a completely sufficient and consistent way with the aforementioned teaching.

Source Supreme Court of Cassation