The particularly tenuous cause of non-punishment of the fact is also applicable to documentary bankruptcy

The Supreme Court reminds that it had already been clarified by the United Sections (n. 13681, 25/02/2016, Tushaj, Rv. 266590) how, for the purposes of configuring the cause of exclusion of punishment due to particular tenuousness of the fact, provided for by art. 131-bis of the Criminal Code, the judgment on the tenuousness requires a complex and joint evaluation of all the peculiarities of the specific case, which takes into account, pursuant to art. 133, paragraph 1, of the Italian Criminal Code, the methods of conduct, the degree of culpability that can be inferred from them and the extent of the damage or danger.

The Supreme Court also reminds us that the issue of the importance of the damage in the context of the document bankruptcy crime was elaborated by the jurisprudence of the Court for the purposes of applying the circumstances provided for by art. 219, Bankruptcy Law.

Moreover, the assessment of the existence and extent of the damage is, therefore, also in the case of documentary bankruptcies necessarily anchored to the specific assessment of objective data, which can be deduced from the preliminary hearing and from the allegations of the parties.

The court also recalls that, even for the aforementioned purposes, in the matter of documentary bankruptcy the notion of damage is limited to the damage caused by the fact of crime considered as a whole, to be assessed both in relation to the impossibility of reconstructing, totally or partially, the accounting situation of the bankrupt company or to exercise revocatory actions or other actions to protect creditors, both in relation to the decrease that the failure to keep the accounting books has determined in the portion of assets to be allocated among the creditors.

And such an assessment does not resolve ex se - as already pointed out - the question of the application of the cause of non-punishment, which instead necessarily postulates, pursuant to art. 133, paragraph 1, c.p., an overall appreciation.