0:02 Welcome to "Giuri di Cast", the podcast that gives voice to the law. Today we immerse ourselves in an area, I would say, of our order: the crimes against public administration. Exactly, let's talk about those norms that, in short, try to protect the integrity, impartiality, efficiency of those who act on behalf of the State. And how does the law intervene when something goes wrong? The goal is to understand not only what the law says, but also why there are certain
0:50 distinctions. Yes, maybe highlighting some useful details, also for those who are deepening these topics for study reasons or, well, professionals. I think of the preparation of public contests, for example. Sure, sure. We will start by analyzing how the law punishes those who are "proper" or "badly" using public goods. Then we will move on to an even more delicate topic: the abuse of power. Abuse of power granted by the public function. A painful button. And finally, we will see how the illegal agreements are treated, corruption in a biased way. Exactly. We will try to make it clear, alternating to maintain the lively discussion. Ready? Very ready. Let's start with a classic: the peculation. So, peculation. Article 314 of the Penal Code. It
1:39 is verified when an official public or an employee of public service is owned by money or something else. "Altrui" . This is important. Yes, "altrui", but of which he has the possession or, in any case, the availability of his own. And this is the point, because of his position. Let's stop for a moment on these terms: "officially public", "public service". They are not the same thing, right? And what does it mean exactly "for office reasons"? Exactly. Qualification is fundamental and they are not the same thing. Ok.
2:26 The IPS, on the other hand, carries out an activity that is so disciplined as a public one, but without those typical powers of the PU, a postman, for example, or a custodian of a public museum. But the key point for both is that they can commit fraud only if the good they subtract is received in their hands precisely thanks to the role they play. This is the office reason, the so-called "ratio offici". So, what if, I don't know, they steal the wallet of a colleague in the office? Absolutely not. That would be a common theft and another story. Here the connection with the public function is needed. Very clear. So, the heart of the crime is appropriation, that is, behaving as if that public good was its own. But article
3:12 314 also talks about distraction. What's the difference? Well, appropriation is just doing it, definitely subtracting it. Distraction, on the other hand, is a little different. It means using that thing or that money for a different purpose than the institutional one it was intended for. For example? Imagine funds allocated for, I don't know, restructuring a school that the employee uses to pay his personal expenses or maybe to finance another unforeseen and unauthorized community activity. That's distraction. And the intention? What does the law require? Here is enough the so-called generic dolo, that is, it is sufficient that the subject knows that that good is not his or that it is intended for a specific purpose and voluntarily uses it as if it were his or for other purposes. There is no need
4:00 for a further specific objective. Understood. And the penalties are not light. Not at all. We are talking about a four-year, ten-year and six-month detention. But beware, there is a version, let's say, lighter. The use penalty, right? Immediately is the key word. In that case, the penalty goes down a lot: from 6 months to 3 years. Think of the classic example of the use of a service car for a very quick private commission, maybe a few minutes. But it must be something really fast and the refund immediately after, without damage. Sure,
4:49 it must be an instant use and the full refund and immediately after. It is a crucial distinction, often a subject of evaluation in concrete cases and therefore certainly of interest even in the examination or competition. Well, peculiar, I would say clear. But what happens if public funds are used badly not by an internal employee but by a private who received them, perhaps legitimately at the beginning? But here we change the subject. We enter another form of crime: the misuse of public funds. Article 316bis. Here the protagonist is an external subject to public administration. A private, a company? Exactly. Anyone who has obtained contributions, subsidies, public funding that were destined by law to specific works or activities of public interest. If then he takes that money and
5:38 uses it for completely different purposes, here is the misuse. So the key difference from the peculate is the active subject. In the peculate is an internal puips, here is an external, a private. Exactly. And the assumption, it seems to me, is that the money was obtained illegally at the beginning, that is, the procedure for obtaining them was correct. Exactly. The problem here is not how he obtained the funds, but how he employed them after having received them legitimately. And this helps us to distinguish it from another crime again. Which is the indebtedness to public issuance. Article 316 ter. Right. They seem similar at times. That is, here Article 316 Ter punishes anyone who obtains funding, contributions or other public contributions, even from the European Union, attention, barring: by
6:28 presenting false documents, declaring untrue things, or omitting information that he was obliged to provide by law. So here the very gain of the benefit is viciated, it is illegitimate, fraudulent from the beginning. Exactly. While in the case of malversation you get money irregularly, but you use it badly, here you get money in an irregular way, with deception. And here is that detail on the economic threshold that often jumps out in the quiz, right? That of almost 4,000 euros. Yes, exactly. It is a very interesting practical point and a classic for contests. If the sum obtained in debt is equal or less than 3,999.96 euros, only a pecuniary administrative sanction is applied. Ah, so under the
7:13 4,000 euros there is no crime? No, be careful, it is not so automatic. Under that threshold, there is the administrative sanction, but the crime can still persist if the fact is particularly serious or is inserted in a more complex context. If the crime persists and the sum is below the threshold, the penalty is from 6 months to 3 years. Ok, so the threshold does not always penalize? No, you need to grade the answer. If, instead, the threshold of 3,999.96 euros is exceeded, then the penalty for the crime goes from 1 to 4 years. It is an example of how the legislator tries to calibrate the penal sanction, perhaps reserving it for the most economically relevant cases. but it's a technical detail that can really make a difference. Well, very clear.
8:01 We have seen how public goods are protected from bad management, both internal and external. But public administration is not made up of goods alone, it is made up above all of powers. What happens when power itself is used badly, distorted? Here we touch a nerve, let's say, discovered, that of abuse of power. And the most serious figure, historically and as a penalty, is the concussion. Article 317. Concussion. Let's hear it. You have a concussion when the P.U. or the I.P.S., abusing its quality or its powers, therefore using its position badly, forces someone to give or promise indebitably money or other utility to himself or a third party. The key word
8:48 here seems to me to be "forces". So there is a clear victim: the private is forced. Absolutely. In the case of the private, he has no choice, or in any case his choice is heavily coerced. He is faced with psychological pressure or a threat so strong, linked to the power of the employee, that his will is in fact cancelled or severely limited. Can you give an example? Think of an employee who threatens serious setbacks, such as blocking an essential practice or doing a tax check if he does not receive a tax return. The private is considered a victim of the crime and in fact, the private contestant is not punishable. Ah, this is fundamental. The private is not a victim. Exactly. The penalty for the official public contestant, on the
9:37 other hand, is very high: 6 to 12 years in prison. But sometimes the pressure is not such an explicit threat, so clear. It can be more subtle, a strong persuasion, a heavy allusion. Exactly. And here the legislator, after various modifications, has introduced a different figure, Article 319 Quarter, the indebted induction to give or promise usefulness. Induction in debt. What is the key difference with the concussion? The difference is subtle but fundamental and it is precisely in the intensity of the pressure. Here too there is a PU or an IPS who abuses his position, but instead of forcing with the threat, he induces. He uses persuasion, maybe deception, a moral
10:23 pressure, he exploits his authority to convince, to push the private to give or promise something that is not due. So a kind of softer concussion. But with a very different legal consequence for the private, I think I remember, right? Exactly. This is the crucial difference in terms of consequences. In the injunction, the law claims that the private, despite being oppressed and influenced incorrectly, still retains a margin of choice, albeit vile. It is not completely crushed as in the concussion. And then? And so, unlike the case where the private is a victim and not punishable, in the indebted induction the private is also punished who gives or promises the utility. His penalty reaches up to three years of imprisonment. Ah, here it is! This is a capital
11:11 point, often requested in the contests. Absolutely. The official public that induces, on the other hand, risks from six years to ten years and six months. So, to recap: Concussion = constriction. Private = non-punishable victim. Debt induction = abusive persuasion induction. Private = punishable participant. It is one of the most delicate and debated points. Ok, very clear. So we have constriction, concussion and induction. Yes, and another crime that has been discussed a lot and that has been modified several times, even recently: the abuse of office. Article 323. Let's hear how it is configured now. So, today,
12:01 after the last reforms, the P.U. or IPES commits this crime if, attention, violating specific rules of conduct provided by law or regulations, a generic violation of impartiality or correctness duties is no longer enough, or by refusing to abstain when it has a personal interest or that of a close relative. And what should happen as a consequence? He must intentionally cause himself or others an unfair asset advantage or cause others unfair damage. Two things strike me immediately: the need to violate specific rules and the adverb "intentionally". These are precisely the key points introduced by recent reforms to circumscribe the crime. It is no longer enough for the employee to
12:47 violate a general principle: he must violate a written, precise norm that imposed a certain behavior or prohibited another. And it is not enough that the advantage or the damage is a possible consequence, perhaps only foreseen, of his actions. He must want it. Exactly. The law now requires intentional mourning. It means that the officer must have acted precisely with the main purpose, with the direct objective of obtaining that advantage or causing that damage. It is not enough that he was aware of it as a possible collateral effect. I imagine that this has greatly restricted the application of the crime. The legislator's intention was to prevent any administrative act, which could only be discussed or formally vitiated, from becoming an official abuse crime, focusing the penalty on cases
13:36 of evasion of more evident and intended powers, The current penalty is from 1 to 4 years of imprisonment. Ok, we've talked about money, goods, power. But there is a third element that often links, unfortunately in an illicit way, citizen and public administration: the agreement, the treaty. And here, I imagine, we enter the field of corruption. Exactly, corruption. which is structurally different from the concussion and the induction because here, basically, there is or is not a vertical pressure from the top to the bottom. What is there then? There is an agreement, a pactum scheleris, as it is technically called, an illegal pact between the
14:22 public agent and the private. They are on a level of equality in the illegal. Both are active participants and, consequently, both are punishable. But it seems to me that there are different types of corruption, right? It is not a single block. No, not at all. The law mainly distinguishes two basic forms. The first is corruption for the exercise of the function, provided for by Article 318. sometimes it is also called improper corruption. And what does it consist of? It is verified when the public official, and the norm speaks of more, but the jurisdiction also applies it to the public servant, receives for himself or for a third money or other utility, or accepts the promise, to do something that already falls within his duties or the exercise of his
15:10 functions. That is, he is paid to do his job. In practice, yes. or to fulfill another according to his duties in office. It seems less serious, perhaps, than other forms. But it is still a property of the public function. An act that should be free and impartial is sold. Exactly. It seriously violates impartiality, correctness and the prestige of public administration. The penalty is significant: a three to eight-year prison. And what is the other main form? It is the one provided by Article 319: corruption for an act contrary to the duties of the office, also called "corruption of its own". Here the level of gravity rises. Why? What changes? The object of the agreement changes. Here the public agent receives or accepts the promise of money or utility not to do
15:59 his duty, but to omit or delay an act of his office that he should instead carry out. Or worse, to carry out an act contrary to his duties of office. Certainly. The public agent does not limit himself to being paid to do his or her duty well or badly, but accepts compensation for openly violating his or her duties. For this reason, the basic penalty is higher: 6 to 10 years in prison. And I think there is also a specific aggravating factor related to the fines. Yes, exactly. Article 319bis provides for an increase in penalty if the fact of corruption, both proper and
16:49 improper, concerns the entrustment of public contracts or other patrimonial advantages of relevant entities for the PIA. a sign of particular attention towards a very sensitive sector. And then, if I'm not mistaken, there is an even more specific and serious form of corruption, the one that affects the administration of justice. Yes, unfortunately so. It is Article 319 Ter, which punishes corruption in judicial acts, It is an aggravated form of corruption, which can be both proper and improper, but which has the specific purpose of favoring or damaging a party in a civil, criminal or administrative process. Here the attack is at the heart of the legal function. Exactly. For this reason, the penalties are even more severe. The base is from 6 to 12 years. and there are further heavy increases
17:38 if an unfair sentence derives from corruption. It goes from 6 to 14 years if the sentence is up to 5 years in prison and from 8 to 20 years if the unjust sentence is higher than 5 years or is a fine. Technical but fundamental details, especially in the context of contests. It almost seems like a ... Well, a market of illicit influences. And about "influences", is there a specific crime that concerns this, selling influence? There is, and it is a relatively more recent figure and also subject to debate: illegal influence trafficking . This crime is a bit different from the direct corruption we have seen so far. In what sense? It punishes those who, exploiting or vowing existing or even only thousand-year-old relationships with an official
18:29 public or an employee of public service, give or promise for themselves or for others money or other utility. But at what price? At the official's act? No. Here's the difference: it is paid at the price of its illicit mediation towards the public agent. or, in other cases, to remunerate the public agent in relation to the fulfillment of an act contrary to the duties or the omission of a due act. but the payment goes to the intermediary, the dealer. So here the offender commits the crime, the intermediary who sells his alleged influence on the P.U.? Exactly. And be careful, the one who pays commits it too. They are both punished, either the one who is paid for the mediation, the mediator, the influencer, or the one who pays or promises the
19:19 money or the utility, hoping to get a favor through this mediation, the client. And the penalty? The penalty for both is a year-long detention, up to four years and six months. It is important to distinguish it from corruption. Here the mediation is paid, the real or alleged influence of the intermediary. The official public is not paid directly for his act, even if perhaps the client's final goal is precisely that. and is also distinguished from the old crime of libel of credit that was abrogated and partly absorbed here. Sure, the nuances are really so important. Before closing, perhaps it is worth mentioning briefly at least a couple of other crimes that concern the correct functioning of offices and procedures. I think maybe of the refusal of
20:08 office acts or the disturbance of the strike races. Gladly, they are important figures to complete the picture of the protection of the PA. Let's take article 328: refusal of office acts, omission. This article punishes two different conducts. Let's see them. The first, provided by comma 1, is the indebted refusal by the P.U. or the I.P.S. to carry out an act of its office that must be carried out without delay, for specific reasons: justice, public safety, public order, hygiene and health, the classic case of emergency. And the second conduct? The second comma 2 is perhaps more known in everyday practice and concerns the inertia of the P.A. punishes the P.U. or the I.P.S. that, even though it was requested by a citizen who is interested, does
20:58 not carry out the act of duty within 30 days of the request and does not respond by written explaining the reasons for the delay or the refusal. Ah, the famous 30-day deadline for the answer. This is a classic detail to keep in mind, I imagine, even for those who study for the contests. Absolutely a classic. Penalty: for the refusal of urgent acts, comma 1, it goes from 6 months to 2 years; for the omission, comma 2, the penalty is up to 1 year of imprisonment or the fine up to 1,032 euros. And then you mentioned public races, a very delicate sector and often at the center of the news. Yes, here we have mainly two close rules. Article 353, "Turbed freedom of enchantment": punishes anyone who prevents or
21:45 disturbs a public race or even a private bidding on account of public administrations using violence, threat, gifts, promises, collusions or other fraudulent means. The objective is clear: guarantee the regularity of the competition. And the other rule? It's Article 354, abstention from charms. It's similar but different. It punishes those who, always with gifts, promises, collusions or fraudulent means, but here we don't mention violence or threat, it removes other offenders or, in any case, it leads them not to participate in the race. Here, the participation freedom is more specifically protected: the competition's platea. So in 353 the race is disturbed, in 354 the competitors are tried to keep away, understood? And there is also 353bis, right? Yes, a norm introduced more recently: the disturbed
22:35 freedom of the choice procedure of the opponent, which extends similar protections even to the previous phases of the formal race, when the PA chooses who to deal with. Penalties for 353 and 354 are similar: 6 months in prison and 5 years in prison and a fine. But there is an aggravating factor in 353 if the person who is committed to the race is the one who is the one who is supposed to be the one to be. Perfect. I would say that we have really touched the highlights of this Title II, Chapter 1 of the Code. If we wanted to recap the key differences on which to pay more attention. Well, certainly the triad is concussion, indebted induction and corruption. It is essential to remember: in concussion there is constriction and the private is a non-punishable victim. In the case of indebtedness, there
23:24 is abusive persuasion and the private is punishable. In corruption, there is a paritary agreement in the illegal and both are punishable. Right. And then the importance of the active subject. Exactly. Always distinguish whether the crime can be committed only by a P.U.P.S. such as the fraud, the concussion, the abuse of office or by anyone such as the abuse, the indebtedness, the perception, the trafficking of influences. and obviously understand the specific conduct: appropriation, distraction, use of falsity, agreement, abuse, revelation, refusal. It is precisely these nuances that define the correct crime. For those who study, perhaps comparative tables can be very useful here. Without a doubt. Visualizing differences on subject, conduct, subjective element, generic, specific, intentional, private
24:14 position helps a lot to set the concepts. Complex rules, sometimes intricate, but really fundamental to ensure that public administration works as it should, at the service of citizens and the collective interest, impartially and well-informed. Absolutely. We have tried to offer a clear and organic overview that can be useful to anyone who wants to better understand these mechanisms and certainly a targeted review for those preparing for trials and contests where these crimes are a central topic. Thank you very much for following us in this in-depth discussion here on Giuridicast. We really hope it was an interesting and useful journey in the heart of these so important standards. Next time, we'll explore together
25:04 the vast and fascinating world of law. And as always, we leave you with a final clue for personal reflection. We have spoken several times about the thin, sometimes blurred, line between constriction and induction, between strong psychological pressure and free choice, albeit vicious. but in a relationship that, by nature, is almost always unbalanced, asymmetrical, like that between a citizen and a public official endowed with powers, how much is it really possible to clearly trace that borderline in the concrete reality of facts? Your reflection.
