The Qualification of Public Official for Parliamentarians: Commentary on Judgment No. 28227 of 2023

Judgment No. 28227 of May 24, 2023, deposited on June 28, 2023, has brought to light important issues regarding the qualification of public official or public service incumbent, particularly for Italian parliamentarians participating in the Parliamentary Assembly of the Council of Europe. This decision, issued by the Court of Cassation, highlights how the legislative and political guidance activities carried out by a parliamentarian, representing their Chamber, can be considered of public significance.

The Relevance of the Qualification of Public Official

According to Article 357 of the Italian Penal Code, the qualification of public official is attributed to those who exercise a legislative or political guidance function. The Court, in its analysis, stated that Italian parliamentarians, when participating in the activities of the Council of Europe, exercise such functions, thus making them public officials in every respect. This implies that the unlawful conduct of a parliamentarian, if occurring in the context of such activities, can be judged according to the principles of criminal law.

Italian parliamentarian part of the delegation to the Council of Europe - Qualification as a public official or public service incumbent - Configurability - Existence - Case. The activity of the Italian parliamentarian who, representing their own Chamber, is a member of the Parliamentary Assembly of the Council of Europe is qualifying as an activity performed by a public official pursuant to Article 357 of the Penal Code for the exercise of legislative and political guidance functions or, at the very least, as a public service incumbent under Article 358 of the Penal Code for carrying out tasks of public significance.

The Implications of the Judgment

The Court also addressed the issue of the confiscation of the proceeds of the crime in the context of a case of functional corruption, declaring the conduct of a parliamentarian to be time-barred. It is interesting to note how the Court excluded that the criminal relevance of the conduct attributed to the parliamentarian was influenced by the insertion of paragraph 5-quater in Article 322-bis of the Penal Code, which occurred through Law No. 3 of January 9, 2019. This paragraph expanded the punishability for members of international assemblies, but the Court established that the conduct of the parliamentarian remained outside of that scope.

  • Qualification of public official for Italian parliamentarians
  • Public significance of legislative functions
  • Implications on corruption and statute of limitations

Conclusions

In conclusion, Judgment No. 28227 of 2023 represents an important milestone in defining the qualification of public official for Italian parliamentarians in international contexts. It clarifies not only the criminal responsibilities of parliamentarians but also their role within European institutions, emphasizing the importance of transparency and legality in the actions of those who represent public interests. Future jurisprudence may further clarify and define these areas, making the responsibility of representatives in pursuing the collective interest increasingly evident.

Bianucci Law Firm