Omitted notification to the trusted defense counsel: nullity of the appeal judgment – Cassation 21672/2023

With the judgment in question, the Court of Cassation returns to address a central theme in the context of defense guarantees and due process: that relating to the nullity deriving from the omitted notification of the summons to judgment at the appeal level, both towards the defendant domiciled with the defense counsel, and towards the duly appointed co-defense counsel.

On the inviolability of the right of defense and absolute nullity ex art. 179 c.p.p.

The Supreme Court considered the first ground of appeal, articulated by me in the interest of the defendant, to be well-founded, noting the violation of art. 179 c.p.p., which configures as absolute and irremediable nullity that deriving from the missed vocatio in iudicium of the defendant.

In particular, it was ascertained that:

• the defense appointment and the election of domicile at my office had been regularly formalized with the appeal act of 29/04/2021;
• the summons had been notified exclusively to the other defense counsel, Avv. Rita D'Agostino, at an address different from the elected one.

The Court therefore reaffirmed that notification must take place in compliance with the domicile elected by the defendant and taking into account the plurality of appointed trusted defense counsels, under penalty of nullity of the second-instance proceedings.

On the duty of verification of the registry and on the centrality of the defensive act

The decision under comment highlights a not negligible dysfunction in judicial practice: the automatic cancellation or the erroneous interpretation of the defense appointments contained in the appeal act. It is imperative that judicial offices, primarily the registries, ensure full compliance with legal provisions, promptly verifying:

• the appointments contextual to the appeal;
• the domicile elected with reference to the specific act;
• the necessity of notification to all trusted defense counsels, under penalty of nullity.

Systematic profiles and operational implications

This ruling, although drafted in a simplified form, is part of a consolidated jurisprudential trend that focuses on:

• respect for the participatory guarantees of the defendant (articles 24 and 111 of the Constitution);
• the enhancement of the effectiveness of technical defense also in the appeal phase;
• the obligation to ensure equality of arms between prosecution and defense in the conduct of the trial.

Conclusions

It is with satisfaction, but also with regret for the repeated superficiality of some application practices, that the annulment without remand ordered by the Court is welcomed. As domiciliary defense counsel, I consider it essential to reaffirm the centrality of the role of the trusted defense counsel not only as a technical actor of the process, but as a concrete guardian of procedural legality.

The nomofilactic function of the Cassation has, in this case, re-established the procedural balance and respect for the guarantees of the defendant, in the face of a clear violation of the same, capable of altering the very outcome of the second-instance judgment.