Director penalised for failing to disclose the 231 proceedings

The company director commits ideological forgery if, in an application for public funding, they fail to disclose that the company is the subject of infringement proceedings under Decree 231. This was emphasised by the Court of Cassation in Judgment No. 32893 of the Fifth Criminal Section, which upheld the conviction of the sole director of a limited liability company who had applied for funding under the Revolving Fund 394/81, whilst failing to disclose criminal proceedings against him, which had subsequently led to an investigation into the company for breach of the regulations on the administrative liability of legal entities.

The Court of Appeal had clarified that the application form for access to funding, signed by the defendant, expressly contained a declaration that there were no pending proceedings against the company in relation to Decree No. 231 of 2001, and that the declaration was expressly subject to the obligation of truthfulness. The trial judges had then highlighted the director’s obligation to self-certify and the irrelevance, for the purposes of the offence of ideologically false declaration, of the fact that the ministerial circular did not stipulate the requirement that no proceedings were pending.

The Court of Cassation points out, amongst other things, that anyone who certifies that there are no criminal proceedings pending against them, whilst having in fact received a notice of pending proceedings, is obliged to dutiful verification that such proceedings have been concluded. In the absence of such verification, the person commits the offence of ideological forgery, which, being punishable as a deliberate offence, must also be considered punishable as reckless intent, with liability excluded only in cases of negligence.

Furthermore, the Court of Cassation observes that the fact that the certificate of pending proceedings did not show any proceedings against the company of which the defendant was the sole director must be regarded as superseded by the fact that, a few months before the submission of the loan application a notice to attend for questioning regarding an administrative offence committed by the company, which was described in full, and he had subsequently been served with the notice of the conclusion of the investigation and then the notice setting the date for the preliminary hearing: ‘therefore, at the time X signed the application in which he certified that there were no proceedings pending against him, he was undoubtedly aware that the aforementioned proceedings were pending against him’.

Nor, the Court concludes, is this a harmless forgery, as the defence has argued. The punishability of forgery is ruled out, the judgement notes, on the grounds that the act is not capable of causing harm, whenever the alteration appears irrelevant to the interpretation of the document, because it does not alter its meaning or proves, in practice, incapable of harming the interest protected by the document’s authenticity – that is, when it lacks the capacity to achieve an unlawful purpose.