Cass. Pen. Judgment no. 13097/2025: domicile for appeal and individuals interned in REMS

The Sixth Section of the Court of Cassation, with judgment no. 13097 filed on April 3, 2025, quashed without referral the decision of the Court of Appeal of Milan of July 24, 2024. The central issue concerns the applicability of the inadmissibility ground provided for by art. 581, paragraph 1-ter, of the Code of Criminal Procedure to individuals interned in a Residence for the Execution of Security Measures (REMS). The judgment offers valuable insights for lawyers and criminal law practitioners, who are called upon to navigate between formal requirements and defence guarantees.

The Regulatory Framework

Article 581, paragraph 1-ter, introduced by Legislative Decree 150/2022 (Cartabia reform), provides for the inadmissibility of an appeal if, simultaneously with the filing of the document, the defendant does not file a declaration or election of domicile. The question is whether this obligation also applies to those who are in REMS, a facility intended for the execution of custodial security measures pursuant to art. 222 of the Criminal Code.

• Art. 581, para. 1-ter of the Code of Criminal Procedure: obligation to elect domicile for appeal.
• Art. 156 of the Code of Criminal Procedure: methods of notification to the detained defendant.
• Legislative Decree 150/2022, art. 33 and Law 114/2024: corrective and interpretative interventions.

The Court's Reasoning

The judges of legitimacy equate the stay in REMS with that in a penal institution. Consequently, notifications must be carried out by personal delivery, according to the mechanism already provided for detainees. The obligation to elect domicile would, in this case, be superfluous and disproportionate, conflicting with the principle of effectiveness of the right to defence enshrined in art. 24 of the Constitution and art. 6 of the ECHR.

The filing of the declaration or election of domicile together with the appeal document, provided for under penalty of inadmissibility by art. 581, paragraph 1-ter, of the Code of Criminal Procedure – in force "ratione temporis" – is not required in the case where the defendant is interned in REMS, given that this custodial condition is comparable to that of an individual interned in a penal institution and, consequently, notifications to them must be carried out by personal delivery. Comment: the maxim makes it explicit that the equation between REMS and prison does not concern medical treatment, but procedural guarantees: if the Authority has full control over the person, it cannot demand further formalities to locate them. The effect is twofold: it protects the right to appeal and reduces the risk of inadmissibility rulings based on mere documentary deficiencies.

Systemic Aspects and Practical Implications

The decision follows previous rulings (Cass. 36036/2024; S.U. 12778/2020) that favour access to justice over excessive formalism. For the defence counsel, this means:

• If the client is in REMS, the failure to elect domicile does not lead to the inadmissibility of the appeal or petition.
• It remains advisable, as a precaution, to verify any transfers or discharges to avoid future disputes.
• The notification office must deliver the documents directly to the interned person at the facility.

Conclusions

With judgment no. 13097/2025, the Supreme Court confirms the guarantor vocation of the Cartabia reform, preventing a choice aimed at simplifying notifications from becoming an obstacle to the exercise of the right to defence. Criminal lawyers are thus reassured: for individuals interned in REMS, the same rules as for detainees apply, and appeals do not risk rejection for a purely formal requirement.