Investigations for Unauthorized Practice of a Profession
It is important to remember that the issue of unauthorized practice of a profession must be framed within the broader category of codified criminal law; as it is a criminal offense provided for and punished by Article 348 of the Penal Code.
For a correct examination of the institution, it is therefore necessary to start from the article that governs it: this presupposes that a profession requiring a specific State authorization is practiced abusively.
It follows a fortiori that not all humanly exercisable professions can constitute the crime in question, but only those for which the State itself provides and regulates access.
It is immediately clear that this is a so-called “blank” criminal law provision, since its full scope is not defined, but rather the legislator refers to other regulations to complete it.
It is therefore appropriate to examine the offense de quo in conjunction with Article 2229 of the Civil Code, which defines intellectual professions for which registration in specific registers or lists is required.
In these cases, registration constitutes a constitutive certification of a particular professional status, and the State monitors compliance with access requirements.
Given this, the legislator’s intent is to protect, as a legal interest, the public interest (or simply the proper functioning of the Public Administration) so that certain delicate and socially relevant public functions are carried out only by those possessing certified academic qualifications, adequate and proven technical skills, and consequently specific moral, cultural, and substantial requirements suitable for practicing certain professions.
As noted by the Supreme Court, the crime of unauthorized practice of a profession under Article 348 of the Penal Code is committed by performing, without authorization, acts that are unequivocally identified as specific to that profession (Cass. S.U 11545/2012).
In other words, the violation of the incriminating norm consists in performing acts reserved to certain professional categories that strictly require a qualification for their exercise, and not acts which, lacking such specificity, may be performed by anyone (Cass. 38752/16).
The same principle, that “unauthorized practice of a profession consists in the commission by a person lacking the professional requirements of an activity reserved exclusively to experts whom the law recognizes the possibility to perform due to their particular professional skills,” was recently reaffirmed by the Supreme Court in a ruling confirming a four-month prison sentence against a person who had practiced psychotherapy without ever obtaining a degree or specialization in psychotherapy and without being registered with either the Medical Association or the Psychologists’ Order (Cass. Pen. sentence no. 13556/2020).
However, as noted by the judges of Piazza Cavour, to consider the crime established, it is sufficient that the person performed at least one reserved act (i.e., exclusively attributed to a certain professional category) in which the unauthorized practice was effectively manifested, regardless of any preparatory or connected acts (Cass. 12177/2012).
Regarding the subjective element of the crime, the Supreme Court almost unanimously holds that general intent is sufficient, meaning simply the awareness and will to act contra legem, regardless of profit motive and even if done occasionally and free of charge (Cass. S.U 11545/2012).
Furthermore, and in conclusion, it should be noted that the penalties provided for those who commit the offense are quite severe: also considering that from the initial maximum punishment of six months imprisonment or a purely monetary penalty (fine up to €516), sanctions were recently toughened by Law 3/2018, which significantly raised the penalty framework.
Today, in fact, in light of recent amendments, anyone who violates the criminal provision of Article 348 is subject to imprisonment from 6 months to 3 years and, concurrently, a financial penalty ranging from a base of €10,000 to a maximum of €50,000.
The investigative agency Argo, through its private investigators, knows how to conduct an investigation suitable to protect the profession by proving, if existing, the illegal conduct.
Considering that the above phenomenon is not rare, it becomes essential to protect oneself from unauthorized practice of a profession by contacting certified investigative agencies.
At the end of the investigation, the agency will prepare a dossier, accompanied by video-photographic evidence, showing the outcome of the service usable in court, at which point the private investigator(s) will be available to confirm the work done and to be heard as witnesses.