Analysis of Judgment No. 23910 of 2023: Embezzlement and Qualification of Public Service Officer

Judgment No. 23910 of April 3, 2023, filed on May 31, 2023, offers important insights into the qualification of "public service officer" in relation to the executives of in-house companies. The Court of Cassation, with its decision, quashed without referral a conviction for embezzlement against the heads of the economic-financial sector of a provincial transport company, raising significant questions regarding the nature of the activities carried out by such executives.

The Qualification of Public Service Officer

According to the Court, the executive of an in-house company is considered a public service officer only for activities directly connected to the performance of public service. This implies that to be classified under this qualification, the activities performed must have a direct relationship with the public service. The decision highlights that undue remuneration, as in the case of erroneously awarded salary incentives, is not considered part of such service.

"In-house" companies - Executives - Activities that determine the acquisition of the qualification of public service officer - Indication - Case. In matters of crimes against public administration, the executive of an "in-house" company - having the nature of a public enterprise and a private legal form - holds the qualification of public service officer solely for activities directly related to the performance of public service or auxiliary or instrumental to it. (In this case, the Court quashed without referral the conviction for embezzlement against the heads of the economic-financial sector of the provincial transport services management company, in relation to the awarding of undue salary incentives to them, as remuneration treatments are extraneous to public service and left to the contractual autonomy of the entity, even if subject to collective bargaining constraints).

Implications of the Judgment

This judgment opens up a broader reflection on the responsibilities of executives operating in in-house companies. In particular, emphasis is placed on the need to clearly distinguish between activities that fall under public service and those that, although managed by public entities, cannot be considered as such. The Court has clarified that not all operations of an in-house company can be equated with those of a public entity, especially when it comes to economic treatments and incentives.

• The distinction between public service activities and private activities is crucial.
• The legal consequences of decisions regarding executive remuneration can be significant.
• The contractual autonomy of entities is a factor to consider in legal disputes.

Conclusions

Judgment No. 23910 of 2023 represents an important step forward in defining the responsibilities of executives of in-house companies and clarifying their qualification as public service officers. The implications of this decision extend beyond the specific case, touching upon fundamental issues of public resource management and administrative responsibility. It is essential for executives and public administrations to fully understand these distinctions to avoid future legal problems.