No embezzlement for those carrying out activities without decision-making powers and without margins of discretion

According to the Court of Cassazione, in the case of activities characterized by the lack of decision-making powers or by the absence of any margin of discretion, the configurability of the position of public service representative is excluded (Court of Cassazione, sentence no. 1957/2023).

In its reasoning, the Supreme Court observes that the qualification of public service representative has been convincingly denied in relation to the position of those subjects who, without properly intellectual tasks, in the context of those structures are called upon to carry out generic material activities in execution of orders of service or prescriptions given by hierarchical superiors.

In particular, it was clarified that those who carry out a merely material or executive activity, which remains extraneous to the strictly administrative activity, such as that carried out by ecological operators in the strict sense, are not in charge of public service: subjects for whom it has been significantly excluded the existence of the extremes of the crime of omission of official acts referred to in the art. 328 of the Criminal Code, as for the crime of forgery of a public document in relation to the drafting of documentation inherent to the mere contractual relationship (signing of attendance sheets) outside or not connected to the exercise of the agent's duties (in this sense Sec. 5, no. 3901 of 12/15/2000, dep. 2001, Pizzimenti, Rv. 219242).

This led to the annulment of the order of the Review Court which had partially reformed the original precautionary measure by ordering the replacement of the applied measure of house arrest with the interdictory measure of suspension from the exercise of the public service.