Judgment No. 38600 of 2024: The Meaning of the Qualification of Public Service Officer

The recent judgment No. 38600 of July 12, 2024, has had a significant impact on Italian criminal law, particularly regarding the definition of "person entrusted with a public service." The Court of Cassation, called upon to rule on a case of misappropriation of assets by an employee of a public transport company, provided fundamental clarifications on the qualifications of public employees and their responsibilities. This decision is crucial for understanding how Italian law defines and applies the concept of public office.

The Case Under Review

In the specific case analyzed, the employee, M. D'A., was accused of misappropriating diesel fuel, despite being required to record the quantities dispensed for internal documentation. The Court had to determine whether, as an employee of a public company, he could be considered a "public service officer." The answer was negative, as the duties performed were merely executive and material, excluding the qualification of public service officer.

Public Company - Employee Performing Executive Duties and Merely Material Tasks - Qualification of Public Service Officer - Exclusion - Documentation of Activity for Internal Purposes - Relevance - Exclusion - Case Scenario. An employee of a public company who performs executive duties and merely material tasks does not hold the subjective qualification of a public service officer, regardless of whether they are required to attest to the activities performed for internal verification purposes related to the regular execution of the employment relationship. (Case scenario in which the Court reclassified, pursuant to Articles 346 and 61, No. 11 of the Criminal Code, the conduct of misappropriating diesel fuel by an employee of a public transport company responsible for fuel distribution, even though they were required to record the dispensed quantities in internal logs).

Implications of the Judgment

This judgment has clarified important aspects of the criminal liability of public employees, highlighting that being employed by a public entity is not sufficient to hold the qualification of a public service officer. The duties must be of a nature that justifies this qualification. In particular, the Court reiterated that:

• Merely executive activities do not automatically confer the qualification of a public service officer.
• Internal documentation of activities does not alter the employee's qualification.
• Criminal liability is based on the type of duties performed and not on the nature of the employer.

Conclusions

Judgment No. 38600 of 2024 represents an important reference point for Italian criminal law, particularly concerning the qualification of public employees. It underscores the importance of a clear definition of tasks and responsibilities to avoid legal ambiguities. The Court of Cassation has thus made a significant contribution to regulatory clarity, which may influence future similar cases and contribute to a better understanding of the rights and duties of workers employed in the public sector.