Judgment No. 49964/2023: Nullity of General Order and the Right to Defense

Judgment No. 49964 of November 14, 2023, issued by the Court of Cassation, offers significant insights into the issue of nullity in criminal proceedings, particularly regarding the failure to communicate the conclusions of the Attorney General to the defendant's counsel. The case at hand falls within the context of emergency measures adopted during the Covid-19 pandemic, which modified appeal procedures, leading to a series of questions about their validity.

Regulatory Context

The emergency regulations, contained in Article 23-bis of Law Decree October 28, 2020, No. 137, introduced methods for conducting criminal proceedings in a paper-based format, limiting direct contact between the parties involved. In this context, the Court had to assess whether the failure to electronically transmit the Attorney General's conclusions could constitute a violation of the right to defense.

Analysis of the Judgment

Paper-based appeal proceedings - Emergency regulations for the containment of the Covid-19 pandemic - Written conclusions of the Attorney General - Failure to communicate to counsel - Nullity of general order with intermediate effect - Existence - Deductibility pursuant to Article 182, paragraph 2, Code of Criminal Procedure - Existence - Specific and concrete prejudice - Allegation - Necessity - Case facts. In an appeal proceeding conducted under the forms provided for by Article 23-bis of Law Decree October 28, 2020, No. 137, converted, with modifications, into Law December 18, 2020, No. 176, the failure to transmit, electronically, the Attorney General's conclusions to the defendant's counsel does not constitute a nullity for violation of the right to defense, as, due to the exhaustive nature of nullities and the absence of a specific procedural sanction, it is necessary to indicate the concrete prejudice arising to the defense's arguments. (Case facts where the Attorney General's conclusions merely requested confirmation of the first-instance judgment, thus, in the absence of an alleged prejudice to defense prerogatives, the Court excluded that the omitted communication had caused concrete harm to the appellant).

The Court affirmed that nullity does not automatically arise in case of violation of defense rights, but the demonstration of concrete prejudice is necessary. This principle is based on the exhaustive nature of nullities provided for by the Italian Code of Criminal Procedure, particularly by Article 182, paragraph 2. The judgment therefore clarifies that the mere omission of communication is not sufficient to trigger nullity, unless real harm to the defense arguments is proven.

Conclusions

Judgment No. 49964/2023 represents an important reflection on the balance between emergency needs and the fundamental rights of defendants. It emphasizes that, within a framework of streamlined proceedings adapted to extraordinary circumstances, it is crucial to maintain focus on the protection of defense rights. In conclusion, it is evident how the Court of Cassation intends to ensure that every procedural violation is examined with attention, always in light of a concrete analysis of the consequences for the parties involved.