Bitcoin Cassation and Pre-trial Detention
The Supreme Court of Cassation intervened at the end of December 2022 in a proceeding concerning the annulment of a precautionary prison measure for crimes that also involved the use of cryptocurrencies such as bitcoin and ethereum.
The interesting point, from a cryptocurrency perspective, concerned the purchase of bitcoins during the commission of fraud and computer fraud crimes.
In particular, the Supreme Court lawyer raised the point that the purchase and sale of cryptocurrencies that leads to other crimes should be classified as a prerequisite for a different criminal activity and therefore cannot be the subject of a subsequent charge of self-laundering.
According to the appellant, the purchase of cryptocurrency, since it did not occur at a time ontologically distinct and subsequent to the commission of the cyber fraud, would be a constitutive element of the crime under Article 640-ter of the Criminal Code, which deals with cyber fraud, since, through the purchase of virtual currencies, the accused would have obtained an unjust profit, with consequent damages for the injured party.
The suspect allegedly did not engage in any further conduct to conceal the proceeds of the crime, and the purchase of cryptocurrencies would be attributable to the underlying crime of computer fraud or, if the legal classification made by the Public Prosecutor in charge were to be accepted, to the crimes under Articles 640, paragraph 2, number 2-bis, and 493-ter of the Criminal Code.
Paragraph 2-bis of Article 640 of the Criminal Code, introduced by Article 3, paragraph 28, Law No. 94 of July 15, 2009, established that the common aggravating circumstance of so-called impaired defense—that is, having taken advantage of circumstances of time, place, and person, including age, such as to hinder public or private defense (Article 61, paragraph 5 of the Criminal Code)—constitutes a special aggravating circumstance with special effect on the crime of fraud, thus determining a harsher sanctioning response linked to its existence, also from the perspective of the applicability of the provisions dictated, in the event of a concurrence of circumstances, by Article 63, paragraphs 3 and 4. The rationale for this regulatory choice is to be found in the legislative desire to strengthen the protection of the most vulnerable, also given the large number of scams perpetrated against the elderly.
This topic is sure to be relevant in the various proceedings pending in our country's courts, given the increasingly frequent use of cryptocurrencies as a means of payment or, in any case, as a means of exchange.
The Court of Cassation, however, deemed the dispute to be absorbed as it annulled the precautionary custody order due to a formal defect.
Bitcoin Cassation and Pre-trial Detention Lawyer
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