Judgment No. 27880 of 2023: Nullity for Failure to Communicate to the Defense Counsel in Paper Proceedings

Judgment No. 27880 of May 16, 2023, filed on June 27 of the same year, offers an important reflection on the emergency measures adopted during the Covid-19 pandemic and their implications for the right to defense. In particular, the Court of Cassation has established that the failure to communicate, via electronic means, the conclusions of the Attorney General to the defendant's counsel results in a general nullity, with significant consequences for criminal proceedings.

Context of the Judgment

The judgment falls within a period when criminal proceedings were adapted to new procedures to ensure health safety. Article 23-bis of Decree-Law No. 137 of 2020 stipulates that in paper proceedings, such as those held during the pandemic, communication between parties must occur electronically. Failure to comply with this rule, as highlighted in the judgment, can severely prejudice the defendant's assistance.

General Nullity and its Consequences

The Court clarified that the violation of the communication rule determines a general nullity of intermediate regime, which can be raised by the defense counsel in the first subsequent act of participation in the proceedings. This means that if the defense counsel does not receive the Attorney General's conclusions, they cannot properly exercise the right to defense, thereby compromising the fairness of the trial.

• The nullity is generalized and not limited to specific acts.
• The defense counsel has the right to object to the nullity even at the conclusion stage.
• Ensuring communication is fundamental to preserving the defendant's rights.

Emergency regulations for the containment of the Covid-19 pandemic - Paper proceedings on appeal - Written conclusions of the Attorney General - Failure to communicate to defense counsel - General nullity of intermediate regime - Raisability - Art. 182, paragraph 2, Code of Criminal Procedure - Applicability - Consequences. In appellate paper proceedings conducted according to the emergency regulations for the containment of the Covid-19 pandemic, the failure to communicate, via electronic means, to the defendant's counsel the conclusions of the Attorney General, in violation of art. 23-bis of d.l. October 28, 2020, n. 137, converted, with amendments, by law December 18, 2020, n. 176, affecting the defendant's assistance, determines a general nullity of intermediate regime, which can be raised by the defense counsel when formulating their own conclusions as the first subsequent act of participation in the 'paper' proceedings, pursuant to art. 182, paragraph 2, first clause, of the Code of Criminal Procedure, and therefore the objection raised only in the cassation appeal must be considered untimely.

Conclusions

In conclusion, Judgment No. 27880 of 2023 represents an important reminder of the need to guarantee the right to defense even in emergency contexts. The Court of Cassation, with this ruling, emphasizes that communication between parties is fundamental for the proper conduct of criminal proceedings, and its absence can lead to serious consequences, such as the nullity of acts. It is crucial for legal professionals to pay attention to these provisions to ensure that the principle of a fair trial is always respected.