Recusal of the Judge: Cassation 19416/2025 Clarifies the Terms of Submission

The impartiality of the judge is a cornerstone of any judicial system that defines itself as just and fair. The possibility for a party to recuse a judge who is deemed not impartial is a fundamental right, protected both nationally and at the European level. But when does the time limit for exercising this right begin? The Court of Cassation, with judgment no. 19416 of 29/04/2025 (filed on 23/05/2025), has provided a crucial interpretation that clarifies the exact moment from which the time limits for submitting a recusal declaration run, especially when the grounds for incompatibility emerge outside the courtroom.

The Impartiality of the Judge: Foundation of a Fair Trial

Our criminal procedural system, in line with Article 111 of the Constitution and Article 6 of the European Convention on Human Rights (ECHR), guarantees the right to a fair trial before an impartial judge. Articles 37 et seq. of the Code of Criminal Procedure (CPP) govern the institutions of abstention and recusal, essential tools for safeguarding this impartiality. In particular, Article 37, paragraph 1, letter b) of the CPP establishes that a judge may be recused if they have "unduly expressed their conviction on the facts subject to the charge".

Recusal is a complex act, subject to strict deadlines, the non-observance of which can preclude the exercise of this important right. Article 38, paragraph 2, of the CPP provides that the declaration of recusal must be submitted, under penalty of inadmissibility, "no later than three days from the knowledge of the fact that gives rise to the recusal". But what exactly is meant by "knowledge of the fact"?

Judgment 19416/2025: The Key Moment for Recusal

The case that led to the Supreme Court's ruling concerned the defendant D. N. S., in a trial where the Judge of the Court of Appeal of Naples had deemed the recusal request untimely. The request was submitted within three days of the filing, which occurred in court, of a judgment issued in another proceeding by the Public Prosecutor C. G., a judgment that contained prejudicial assessments. Despite the Tribunal having granted a period for verification of these assessments, the Court of Appeal had nevertheless declared the request inadmissible due to tardiness.

The Cassation, with an authoritative ruling presided over by Dr. D. S. P. and with Dr. C. A. as rapporteur, annulled the decision of the Court of Appeal of Naples without referral, affirming a legal principle of fundamental importance. Here is the full maxim:

For the purpose of the commencement of the time limit for submitting the declaration of recusal by the defendant, when the alleged ground relates to events or judicial acts that occurred outside the hearing and the trial, reference must be made to the moment when the interested party acquired actual and full knowledge of it. (In application of the principle, the Court annulled the decision of the Court of Appeal which had deemed untimely the recusal request submitted within three days of the filing, which occurred in court, by the public prosecutor, of the judgment issued in another proceeding, despite the Tribunal having granted a period for the concrete verification of the prejudicial assessments expressed in the judgment itself).

This ruling clarifies unequivocally that the three-day period does not run from the mere formal availability of the act, but from the actual and full knowledge of its content and, above all, of its potentially prejudicial nature. It is not enough to know that an act exists; it is necessary to understand its scope for the purpose of recusal. This principle has already been affirmed in similar previous rulings (Cass. no. 41110 of 2013, no. 19533 of 2014, no. 39415 of 2019), but this judgment strengthens its practical application.

"Actual Knowledge": A Principle to Protect the Defendant

The Supreme Court emphasizes that, for judicial events or acts that occur outside the hearing or the main trial, the starting point for calculating the time limit is the acquisition of "actual and full knowledge" of the ground for recusal. This means that the party must be put in a position to:

• Have full awareness of the existence of the act or event;
• Understand the specific content that generates the suspicion of partiality;
• Concretely assess the prejudicial nature of the statements or circumstances.

In the specific case, the fact that the Tribunal had granted a period for the verification of the prejudicial assessments highlighted precisely the need for an in-depth, not immediate, analysis of the content of the external judgment. To deem the request untimely in such a context would have meant depriving the defendant of the possibility to fully exercise their right to recusal, violating the principles of a fair trial.

Conclusions: A Beacon for Justice and Citizen Protection

Judgment no. 19416 of 2025 by the Court of Cassation represents an important safeguard for the impartiality of the judicial function and, consequently, for the rights of the defendant. It reiterates that procedural deadlines, while essential for the speed of justice, can never unreasonably restrict the right to defence and the guarantee of a third-party judge. For legal professionals, this ruling is a fundamental reminder: in analysing the timeliness of a recusal request, attention must always focus not only on the formal date of filing or knowledge, but on the actual ability of the party to understand and assess the scope of the ground for recusal. Only in this way can it be ensured that the criminal trial is truly "fair" at every stage.