Qualification as Public Official and Official Secret: Analysis of Judgment No. 10398/2025

The ruling of the Criminal Court of Cassation No. 10398 of February 14, 2025 (filed March 14, 2025) offers an opportunity to reflect on a crucial issue for public and private healthcare operators: in what cases can the director of a healthcare company be qualified as a public official and, consequently, be held liable for the crimes provided for by Articles 357 and 326 of the Criminal Code? The case concerned a general director who had obtained in advance, from the members of the examination committee, the written and oral test questions relating to the selection of nursing staff.

The core of the decision: "de facto" public official

The Court reiterates the objective-functional criterion: the concreteness of the duties performed matters, not the formal employment relationship. If the activity affects the formation of the will of the Public Administration or involves the exercise of authoritative/certifying powers, the individual holds the qualification of public official even in the absence of a public competition or a strictly public contract.

• Activity performed: organization of the selection procedure.
• Impact of the function: definition of tests, selection of suitable candidates.
• Cited norms: Art. 357 c.p. (definition of public official), Art. 326 c.p. (disclosure of secrets), Art. 110 c.p. (conspiracy).

It follows that even "quasi-competitive" procedures intended to establish a private employment relationship fall within the scope of public functions if the law (Law 833/1978; Legislative Decree 502/1992) assigns a non-avoidable public value to healthcare.

In matters of crimes against public administration, the qualification of public official requires, based on the objective-functional criterion, the concrete performance by the agent of duties typical of public activity, through which, regardless of the existence of a formal employment relationship with the State or public body, they contribute to the formation or manifestation of the will of the public administration or exercise authoritative or certifying powers, thus the crime of disclosure of official secrets is configured, referring to selection procedures for healthcare personnel, even non-competitive ones and aimed solely at verifying the suitability of candidates, considering the public value that sector legislation assigns to the healthcare function and its bodies, and the public or private nature of the employment relationship to be established between the entity and the selected personnel is irrelevant.

The maxim highlights two decisive aspects: on the one hand, the expansion of the notion of public official to include subjects "external" to the Public Administration; on the other hand, the enhanced protection of equal opportunity in healthcare selections, considered a primary public interest.

Relationship with previous case law

The principle follows the path laid down by the United Sections (judgment 10086/1998) which had already "functionalized" the qualification of public official. More recent decisions (Cass. 5636/2024; 4520/2025) confirm that the scope of official secrecy extends to all preparatory and internal acts, especially when they are likely to influence the administrative impartiality established by Article 97 of the Constitution.

From a European Union perspective, the judgment resonates with the principle of good governance under Article 6 TEU: Member States must prevent and punish corrupt behavior that undermines citizens' trust in public services, including healthcare.

Practical implications for entities and professionals

In light of the decision, directors and members of selection committees must:

• adopt strict confidentiality protocols;
• trace every step of the procedure to ensure transparency;
• receive periodic training on the criminal duties connected to their function;
• evaluate the adoption of models pursuant to Legislative Decree 231/2001 to reduce the risk of liability.

Conclusions

With judgment No. 10398/2025, the Court of Cassation reinforces the interpretative line that values substance over form: whoever, in fact, manages decisive segments of administrative action is a public official in all respects and, as such, is bound to respect official secrecy. For healthcare companies, this means raising compliance and prevention standards, protecting not only the entity but, above all, citizens' trust in the fairness of recruitment procedures.