Whats The Difference Between Mino Hd Ultra Hd

Sent. Supreme Court November 7, 2007, No 40891

Sent. Corte di Cassazione 7 novembre 2007, n. 40891
Cambio di mansioni senza rispettare le norme contrattuali - Mobbing

Fatto e diritto
1. Con sentenza in data 30.10.2003, il Tribunale di Lecce dichiarava Colazzo Walter colpevole del reato di cui agli artt. 81 c.p.v. e 323 c.p. (commesso in Scorrano il 15.9.1997) e, in concorso con le riconosciute attenuanti generiche, lo condannava alla pena - sospesa - di un anno di reclusione.
affirmation followed the conviction of responsibility to pay damages - to be settled in separate proceedings - and to pay the costs of the proceedings in favor of Maria Rosaria Costa, established a civil action. At
Colazzo was accused of being, as Mayor of Scorrano, with more enforcement actions of the same criminal intention, abused his position and his office, taking three steps with which you have that Ms Maria Rosaria Costa, an official Scroll with the City of VI functional status and tasks of economic coordination of the nursery hall, was designed to perform the duties of prevention and investigation of violations of parking, "in violation of Article. 17, paras 132-133 L. No 127/97, \u200b\u200bMinisterial Circular No 300 / A of 26467/110/26 25/09/1997, explanatory of that art. 17, paras 132-133 and Art. D 56, Decree n. 29/93 (as well as art. 7 CCNL approved by Presidential Decree 593/93) to be he first to arrive to the identification of the Coast as the recipient of those measures, failed to make a comparison between employees with similar qualifications and a prior assessment of the suitability and the necessary skills, so going to give an unfair named Costa, for the performance of duties lower than those for which she worked and "forced to engage in outdoor work more heavy than previously pursued. "

2. On appeal the accused, the Court of Appeal of Lecce, with a decision dated 23.9.2005, filed January 12, 2007, upheld the contested decision.
They believed the judges of the on the occasion of the offense, based on bullying and persecution - believed to be widely tested - set up by Colazzo against Costa, noting that purpose:
- Costa, an official of the VI level of economic coordination of functions' municipal nursery, came out of the blue, without any formal steps, moved gradually deprived of his seat and forced to perform tasks and functions belonging to lower qualifications: the behavior considered in itself sufficient to highlight the attitude taken towards the coast from Colazzo, since the beginning of his union experience (the accused was elected mayor in November 1993 and the measure against Costa went back to February 2, 1994 ) culminated, then, in the three steps of the process object;
- Costa was the recipient of the measures taken by Colazzo pursuant to art. 17 L. 127/97, \u200b\u200bbut no one called in the texts (let alone the secretaries at the City of successive municipal Scorrano), had never been able to report how he had come to identify the "director of the nest", an official in level VI, the person best suited to perform the duties of auxiliary traffic (with no prior medical examination and without prior retraining, in breach of the ministerial circular 25.9.1997);
- further demonstration of humiliation and professional de-skilling of the Coast, as was noted by the fact that after the umpteenth visit collegiate had certified the suitability of the above tasks for which it was taken, was returned the same day nursery without, however, they were out their assigned functions and were not, of course, those for which she worked. These factual
emergencies caused each of the courts to recognize merit in the conduct of Colazzo, the extremes of bullying, detectable in those behaviors with which the employer or his immediate superior, exercised a sort of psychological terrorism (because of harassment, humiliation, professional de-skilling, excessive use of medical examinations even in the face of reports confirming the disease reported by the worker, etc..), against one or more employees, so as to coerce or bend the will and that often causes serious disease in the sphere of interest neuropsychic of the exposed individual.
That conclusion - as well as useful to highlight the personality of the accused placed in close connection with the three measures adopted by Colazzo between 15/09/1997 and 31/01/1998 and shown in CHARGE - worth to integrate, like the assessment expressed in the substance, the alleged crime of abuse of office.
Having considered the merits of the claims of the Coast, not the legality of measures adopted by Colazzo on the above (because it does not respect the provisions of art. L.vo 56 d. No 29/93 - Article in . 17 L. 127/97 is necessarily connected - do not highlight the reasons on the basis of which was identified just coast, rather than other municipal employees, to perform the duties of the auxiliary traffic, and because, as mentioned, these constituted the seal of a series of pipes "mobbing", professionally designed to disqualify the injured party), was identified by the behavior Colazzo capable of integrating also an offense under Article. 2043 cc, not being able to doubt that the described conduct of a public official had produced a clear damage to the injured party, consisting of disqualification following the exercise of professional duties lower than those to which they belong, which is derived from a series neuro-psychiatric disorder, analytically described by Dr. Tornesello, consultant to the plaintiff (which highlight how the symptomatology reported from Côte - hypertensive episodes, tachycardia, anxiety, restlessness and emotional tension - was due to the state of stress derivatole from the matters of opinion). From these factual
emergencies has therefore put forward the view that the arrangements Colazzo intentionally cause injury to the injured party, "covering" in the conduct alleged (but unproven) grounds of public interest. Hence the existence of fraud, in terms of art. 323 cp

3. With the proposed appeal, the accused, through their counsel, lawyers Peter Quinto and Luigi Corvaglia, slams
- violation of Article. 606, co. 1 bed. b) and e) in relation to art. 323 cp
It contends that, under current legislation, the measure No union 12082 of 09/15/1997, which, with proper motivation, provided that Ms Maria Rosaria Costa was doomed from 09/16/1997 to 09/29/1997 to carry out tasks of prevention and investigation of violations in Stop "is an administrative legitimate and lawful, since that legislation allows the employee to perform occasionally use as and where possible with the criteria of rotation, tasks or duties immediately below ... without implying any change in treatment statement.
is drawn that, following additional investigation ordered by Gup, pursuant to art. 421 cpp, was acquired a note prepared by the secretariat City Scorrano, from which it is clear that among the employees with the title VI functional, the only one that could be designed to function as the auxiliary traffic was Ms Maria Rosaria Costa, so that could not be constructed on the basis of rotation having subtracted the same Costa carry out the service.
However, it is not regarded as constituting the crime of Article. 323 cp when there is a breach of a collective agreement applicable to public employment (Cass., Sec. VI, 3.11.2005, No. 13511), for lack of the prerequisite of "breach of law or regulation."
Moreover, all the measures that have affected Ms. Costa and have been booked to have been issued in writing and duly motivated, and can not be considered a breach of integrated motivation, entering into the substance of the same in order to share it or not, because this would go beyond the task allowed the criminal judge, upon whom the finding of the grounds only and not the "same quality".
In conclusion, the conduct of the applicant, the adoption of administrative measures specified in the indictment, is considered legitimate and in accordance with the laws regulating the matter, so that in this case can not be regarded as required by the fraud. 323 cp

4. The crime ascribed to the accused - continued abuse of office - to be declared extinct by prescription, to be the course commissi tempus delicti (15/09/1997) the period required by law, is there any ground for acquittal on the merits, pursuant to Art. 129 co. Cpp 2 - as a defensive required - because it does not appear "obvious" that the crime does not exist or is not a crime.
Look at the College: the criticism of the decision contested by the appellant is that the policy put in place by the accused, in his capacity as a public official (such as the Mayor of Scorrano), against the municipal employee Maria Rosaria Costa, can not subsumed in the criminal case, art. Cp 323, by failing in any way affected the efficient functioning and impartiality of administrative action, as it does not conflict with rules "specifically targeted to inhibit or require the conduct itself," the rules, however, does not conform to standards of formal and legal regime of the law or the regulations.
This assumption is not well founded, as the findings highlighted in the decisions on procedural, state unequivocally the occurrence of the constituent elements of the alleged crime of abuse of office.
regard to violation of law, the demotion of the municipal employee from Costa Maria Rosaria treasurer and bookkeeper at the nursery school movement, with the tasks of prevention and detection of violations of parking, "appears to have been adopted by Mayor Colazzo in clear violation of the provisions of art. Legislative Decree No 56 29/93 on employees of public administration and art. 7 CCNL of local government employees implemented in DPR 593/93. While allowing such rules che un dipendente possa essere adibito a svolgere compiti di qualifica immediatamente inferiore, ne evidenziano, tuttavia, l’occasionalità di tale destinazione e la possibilità che ciò avvenga con criteri di rotazione.
Tale ratio legis risulta inosservata dal Sindaco Colazzo:
- per non avere dato conto con adeguata motivazione dei criteri d'individuazione del dipendente da demansionare, sia pure occasionalmente;
- per aver omesso di prevedere una rotazione per tutti i dipendenti astrattamente idonei ad essere nominati;
- per aver omesso di motivare sulle cause che hanno reso impossibile il ricorso a tali canoni di comportamento espressamente richiamati dalla legge.
Quanto all'elemento soggettivo del reato, l'avverbio intenzionalmente, che figura nel testo della norma incriminatrice, esclude la configurabilità del dolo sotto il profilo indiretto od eventuale; e richiede che l'evento costituito dall'ingiusto vantaggio patrimoniale o dal danno ingiusto sia voluto dall'agente e non già semplicemente previsto ed accettato come possibile conseguenza della propria condotta, in ipotesi diretta ad un fine pubblico, sia pure perseguito con una condotta illegittima. Ciò, beninteso, a patto che il perseguimento di tale fine non rappresenti un mero pretesto, col quale venga mascherato l'obiettivo reale della condotta.
Ne deriva che, per escludere il dolo sotto il profilo dell’intenzionalità, occorre ritenere, con ragionevole certezza, che l'agente proposes to achieve an end result, proper to his office. This hypothesis, in that field, has been justifiably excluded from the trial judge, who felt no doubt about the occurrence of abuse in intentional damage, and as pointed out just now, and because the routine conduct of the Mayor to allocate Colazzo persistently coast, rather than other municipal employees, to perform the duties of the auxiliary traffic, appear to be sealed with a series of elements that characterize the social phenomenon known as mobbing, consisting of acts and conduct adopted by the employer or the superior who seeks to harm the employee, so as to coerce o da piegarne la volontà: comportamenti tesi, nella fattispecie, a dequalificare professionalmente la parte lesa, tali da concretare oltre che il reato di abuso d'ufficio in danno di costei, da integrare, altresì, l'illecito di cui all'art. 2043 cod. civ., essendo derivata, quale ulteriore conseguenza di detti comportamenti "mobbizzanti" del Colazzo, una seria patologia neuro-psichiatrica a carico della Costa: attività amministrativa illegittima, dunque, da cui è derivata, in una con la lesione dell'interesse legittimo in sé considerato, quella dell'interesse al bene della vita, che risulta meritevole di protezione, con conseguente risarcibilità del danno causato (cfr: Cass., Sez. VI, 24 febbraio 2000, Genazzani).
to the above provisions must be set aside without reference to the contested decision be extinguished by prescription the offense, subject to the civilian heads.
The applicant must also ordered to pay the costs incurred by the plaintiff in that degree of court, charges that are paid in total € 2168.44 plus VAT and CPA.

PQM

The Court annulled the contested decision without reference to why the offense is extinguished by prescription, without prejudice to the civilian heads.
order the applicant to pay the costs incurred by the plaintiff in this degree of discretion, that the liquid in a total of € 2168.44 plus VAT and CPA.