Cassation: It is a crime to ask for money for medical certificates for absence from work

The general practitioner contracted with the National Health Service who offers to issue medical certificates for leave of absence from work in exchange for a sum of money is liable for the crime of incitement to corruption. This was established by the Court of Cassation (ruling no. 19409 of 2025), which confirmed the conviction issued by the Court of Appeal of Milan against a general practitioner held responsible for the crime referred to in Article 322, paragraph 3, of the Criminal Code.

The defendant had filed an appeal in cassation arguing that the territorial court:

- did not take into account a series of elements from which the non-existence of the hypothesis of a crime would have emerged, such as: the friendly and joking tone in which the requests for money were formulated; the amount of the sum requested (30 euros on only two occasions); the absence of reiteration of the requests for money; the fact that none of the patients had chosen to change their GP; the circumstance that many witnesses questioned in the trial had declared that they had not perceived the negative value of the conduct;

- he had unlawfully denied the acquittal due to the particular triviality of the act provided for by Article 131-bis of the Criminal Code (“In crimes for which a minimum prison sentence of no more than two years is provided […] punishability is excluded when […] the offence is particularly trivial and the behaviour is not habitual”) given the small number of patients to whom he had addressed the request for money and the negligible amount of money awarded to the civil party.

Thesis that missed the mark. The Court of Cassation confirmed the orientation according to which, for the purposes of configuring the crime of incitement to corruption for an act contrary to the duties of office, the suitability of the offer must be assessed with an ex ante judgment, so that the conduct can be considered harmless only if the potential suitability of the offer itself to achieve the purpose pursued by the author is lacking, irrespective of its insignificance, provided that it is not completely negligible (Cassation, Section VI, 23 October 2019, no. 46494). This is not without highlighting the "widespread tendency of the accused to violate the duties of correctness and loyalty in carrying out his duties" and, therefore, the impossibility of applying Article 131-bis of the Criminal Code for the repetition of conduct of the same nature.