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The importance of scientific knowledge in criminal trials

High technical skills are now an essential requirement in a multitude of cases concerning criminal proceedings, such as events related to crimes to protect health and safety in the workplace, environmental crimes or even corporate and bankruptcy crimes. In this context, “scientific knowledge” is utterly crucial for all the figures involved, from lawyers to prosecutors, to judges.

Having to deal with issues that are very technical and far from legal competence per se puts criminal law operators in the condition of expanding their culture and training. They also have to rely on additional specialists for specific subjects, appointing them as experts or partisan consultants during trials.

And it is precisely the confrontation between legal professionals and “technical” experts – through the hearings of the latter and the acquisition of their reports – that has generated a complex debate on the role of scientific evidence in law.

What does scientific proof in the judicial field mean?

Jurisprudence includes in the category of scientific proof all the evidence that, starting from a proven fact, must use a scientific law to ascertain or confirm a further fact yet to be proven.

In fact, the criminal trial Judge does not have specific technical-scientific knowledge and must therefore base their assessment on the opinion and competence of the experts or partisan technical consultants. In this sense, the Judge is not an advocate of a scientific law but a user. Starting from the famous Cozzini ruling, this principle is now consolidated.

The concept has been confirmed by the reasons recently given by the Court of Cassation concerning the well-known story of the Viareggio massacre.

“On the level of principles, it should be remembered that the teaching of the jurisprudence of legitimacy has now become common heritage, at least for the operators of law, according to which the Judge is precluded from becoming the maker of the scientific law necessary for assessment in the judgments due to expert knowledge. Since the Judge is the bearer of a “legitimate ignorance” concerning scientific knowledge, it is a matter of evaluating the scientific authority of the expert who transfers their knowledge of science into the trial; but also understanding, especially in the most problematic cases, if the proposed statements find common acceptance in the scientific community.”

“From this point of view, the Judge is effectively and in the highest sense peritus peritorum: the guardian and guarantor of the scientificity of the factual knowledge expressed by the trial”, highlighting that “the evidence that the parties are required to provide cannot be other than what the Judge needs. (…) If the Judge needs to know which is the most accredited scientific thesis in the community of scholars, the party who intends to appeal to that thesis has the burden of proving such accreditation while the other party can and must resist (also) on that ground.”

It is undoubtedly a difficult task, both for the Judge called to deliberate on a specific matter and for the parties who, through the appropriate skills, have to demonstrate the greater authority of the scientific thesis supported by their experts.

During the same sentence, the Supreme Court also recalled that:

“The sentence can only be pronounced when the accused is guilty beyond a reasonable doubt. This implies that the statement of responsibility presupposes – limited to the point under consideration – that it is acquired beyond any reasonable doubt that the cover law on which the accusatory approach is built is seen as the most accredited by the scientific community. (…)”

“It is therefore necessary to demonstrate only the marginality – not on a logical level but a comparative level – of the other theses in circulation. On the other hand, for the defense it is sufficient to demonstrate the existence of serious doubt regarding the greater fortune of the theory wielded by the prosecution (…) So that the doubt that may be sufficient to make the accusation fail belongs to the rank of scientific explanation that one would like to be used by the Judge.”

In conclusion, what we illustrated so far highlights the increasingly central role played by the professionals involved in criminal trials that have very complex scientific matters as their subject.

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Copyright Criminal Law, Corporate Criminal Law, Environmental Criminal Law, Labour Criminal Law, Law, Legal services Bankruptcy Criminal Law, Tax Criminal Law5 October 20210 comments 0 Likes

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Improper bankruptcy for malicious transactions

Bankruptcy crimes, and especially fraudulent bankruptcy, no doubt play a crucial role in corporate criminal law.

This type of crime can be integrated by various conducts, such as the one indicated by article 223, paragraph 2, no. 2 of the Bankruptcy Law. The article configures a hypothesis of improper fraudulent bankruptcy for which directors, general managers, auditors and liquidators of bankruptcy companies that have caused the willful bankruptcy of the company due to malicious transactions can be held accountable.

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The difference between improper, patrimonial and documentary bankruptcy

There are different types of bankruptcy: improper, patrimonial and documentary. The latter two punish the conducts of distraction and dissipation of corporate assets with danger for credit reasons, regardless of the circumstances that caused the bankruptcy, an event that must occur in any case. On the other hand, improper bankruptcy punishes malicious conducts and operations – not necessarily distractions or dissipations – which must have an etiological connection with the company’s bankruptcy.

In particular and as clarified by the jurisprudence of legitimacy, to configure the crime of improper bankruptcy, the immediate impoverishment of the company does not necessarily have to be detected, but it will be sufficient to detect the creation or aggravation of a situation of economic distress which, predictably, will lead to bankruptcy.

It is for this reason that this type of crime is increasingly common in legal matters relating to the management of companies of any size and industry. In this regard, a recent ruling by the Criminal Cassation, section V, 02.18.2021, no 22765, establishes that “it is a free-form crime, supplemented by active or omissive conduct, constituting failure to comply with the duties respectively imposed on the subjects indicated by the law, in which the bankruptcy is an event of damage. It is believed that the case occurs not only when the failure situation finds its cause in malicious conduct or operations, but also when such conducts and operations have aggravated the failure situation, which is the objective prerequisite for declaring bankruptcy.”

The role of the administrator and the meaning of “malicious operation”

Concerning the figure of the company director, who has an obligation of loyalty toward the company, it is believed that any violation committed by the director can integrate an intentional operation in the presence of other conditions. As established by the jurisprudence of legitimacy, such intentional operation “consists in performing of any intrinsically dangerous act for the economic and financial health of the company and, therefore, is also an omissive conduct that creates and impoverishment unjustifiable in terms of interest for the company.” (sentence, Criminal Court, section V, 05.15.2014, no 29586).

It is no coincidence that we speak of “operation”, a much broader term than “action” (i.e., merely active conduct) and also including omissive conduct. In this regard, in the case law it is precisely stated that malicious operations may also consist of the systematic failure to pay social security contributions or taxes.

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“Willful misconduct” in improper bankruptcy

The regulatory use of the word “willful” in the context of the subjective element of the crime must be understood as follows: bankruptcy must be foreseen and wanted by an agent as a consequence of their action or omission. Hence, it only refers to cases in which the company’s bankruptcy was the agent’s goal. In the hypothesis of malicious transactions, however, bankruptcy is only the effect of the agent’s voluntary conduct but not intentionally aimed at generating bankruptcy.

Therefore, the first instance is punished only in direct event fraud, while in the second case generic fraud will suffice.

With regard to the case for malicious transactions, the Supreme Court (with the sentence cited, Criminal Court, Section V, 02.18.2021, no. 22765) found that “reference was made to a hypothesis of unintentional bankruptcy, to underline that the connection with the event is purely coincidental, as the ‘for the effect of’ formula suggests, where the fraud only refers to the operations that cause the failure.” It is hence “sufficient for the prosecution to prove” the awareness and intention of the administrator of the complex action affecting patrimonial damage in its natural elements and contrast with his/her duties, in the face of the interests of the company, and their insertion in the wake of the aforementioned need for the abstract predictability of the event of instability as an effect of the illegal action. “

Considering what is established by the jurisprudence of legitimacy and in light of the increasingly significant impact of improper fraudulent bankruptcy in corporate affairs, we suggest requesting the support of legal professionals experienced in Criminal Bankruptcy Law, both in the judicial and extrajudicial phases. Stella Law Firm can help you.

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Law, Legal services Bankruptcy Criminal Law10 February 20220 comments 0 Likes

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The Legislative Decree n. 231/2001 turns twenty: this is why it is so important

The Legislative Decree n. 231/2001, which introduced the “regulation of the administrative liability of legal persons, companies and associations, including those without legal personality, under article 11 of Law n.300, September 29, 2000”, turns twenty.

It’s a crucial anniversary because this legislation has allowed the Italian legal system to overcome the principle of “societas delinquere non potest”, that is, “a company cannot commit a crime”.

Although the Legislative Decree n. 231/2001 was initially applied only to some willful crimes, over time, the legislator has expanded its range of action by including further “predicate offenses”, i.e., the types of offenses that can cause the body’s liability. To date, this particular category includes about five hundred heterogeneous offenses, such as crimes against the Public Administration (the first to be introduced), corporate and environmental crimes, crimes related to accidents at work, IT crimes and, more recently, tax crimes.

The extension of the applicability of the Legislative Decree n. 231/2001 has sensitized companies – especially those of medium-large size – to implement efficient internal compliance systems resulting from adopting specific Organizational Models. The latter must be constantly updated while appointing the Supervisory Body guarantees the verification of the application by the model’s recipients, as well as the model’s adequacy and effectiveness.

Organizational Models: a valuable tool for avoiding the responsibilities of a crime under the Legislative Decree n. 231/2001

Companies that adopt Organizational Models have an essential tool at their disposal to avoid liability for a crime according to the Legislative Decree n. 231/2001. Several cases addressed by the jurisprudence and ending with the acquittal of the company precisely because its Organizational Model was valid confirm such a thesis. However, this is a topic that we will discuss more thoroughly in the future.

It is also important to point out that Confindustria recently published its updated guidelines regarding the creation of Organizational Models, hoping to “inspire companies in the construction of their model and, for the jurisprudence, to enhance the organizational efforts made by the companies to align themselves with the provisions of the Decree 231.”

The aforementioned Supervisory Body actively deals with the Legislative Decree n. 231/2001, which is why more and more medium-large companies are equipping themselves with such entity, in view of the growing attention the case law shows in relation to the Body’s centrality in internal control systems.

More specifically, the Supervisory Body receives the so-called “information flows” from the various corporate functions. It then sends the reports to the top management, the Board of Directors and the Board of Statutory Advisors. Hence, the Supervisory Body provides these entities with a constantly updated representation of the state of health of the corporate control system.

It is also worth reporting a recent sentence by the Court of Milan on the well-known Monte dei Paschi di Siena case, which saw the bank’s Chairman and Chief Executive Officer being convicted of false corporate communications and stock manipulation. The fine was 800 thousand euros.

The court was unequivocal regarding the liability of the entity, explaining that, in the analyzed timeframe, “the Supervisory Body, despite having penetrating powers of initiative and control, […] substantially omitted the necessary investigations (which were functional to the prevention of repeated and undisturbed crimes), despite the relevance of the issue as per the inspections of the Bank of Italy (of which the SB was aware) and has even risen to judicial challenge blaming BMPS[…]”

And again: “The Supervisory Body witnessed the events passively, limiting itself to insignificant acknowledgments, in the spiraling of events (from the alarming press reports to the judicial debacle) that a more prudent exercise of control would have averted. Thus, unfortunately, it was not and all that remains is to detect the body’s omitted (or at least insufficient) supervision, which founds the organizational fault referred to in article 6, Legislative Decree n. 231/2001.”

This sentence again confirms the centrality of the Supervisory Body in monitoring and verifying the adequacy and effectiveness of the corporate compliance system.

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Copyright Criminal Law, Corporate Criminal Law, Environmental Criminal Law, Labour Criminal Law, Law, Legal services Bankruptcy Criminal Law, Tax Criminal Law6 July 20210 comments 0 Likes