Judgment No. 24657 of 2023: Nullity of Hearing for Violation of the Right to Defense

Judgment No. 24657 of April 21, 2023, filed on June 8, 2023, by the Court of Cassation, falls within a particularly delicate legal context, that of the emergency measures adopted to address the Covid-19 pandemic. In this specific case, the Court declared the absolute nullity of a criminal hearing following the non-participation of the retained defense counsel, who was unable to attend due to the absence of an authorized remote connection.

Context of the Judgment

The decision is based on Article 23, paragraph 5, of Law Decree No. 137 of 2020, which provides for the possibility of remote participation by lawyers, guaranteeing the right to defense during a period when health measures restricted gatherings. The Court emphasized that the failure to provide the remote connection violated the defendant's right to defense, recognizing its fundamental importance in criminal proceedings.

Emergency measures for the containment of the Covid-19 pandemic - Failure to provide authorized remote connection to allow "remote" participation by the retained defense counsel who had requested it pursuant to art. 23, paragraph 5, Law Decree No. 137 of 2020 - Violation of the right to defense - Existence - Absolute nullity - Configurability - Reasons. Regarding the emergency measures for the containment of the Covid-19 pandemic, the non-participation in the hearing of the defendant's retained defense counsel, due to the omission of the authorized remote connection, constitutes a cause of absolute and incurable nullity of the hearing pursuant to art. 179, paragraph 1, Code of Criminal Procedure, as well as derived nullity of the judgment issued thereafter. This is because the prescribed methods for conducting hearings to safeguard the adversarial principle, as set forth in art. 23, paragraph 5, of Law Decree of October 28, 2020, No. 137, were not observed.

Implications of the Judgment

This judgment has significant repercussions on the Italian legal system, highlighting the following issues:

• Protection of the Right to Defense: The Court reiterates that the right to defense cannot be compromised, even in emergency situations.
• Obligation for Adequate Technological Measures: Institutions must ensure the necessary infrastructure so that lawyers can assist their clients.
• Absolute Nullity of the Hearing: Failure to comply with the rules governing the conduct of hearings results in the absolute and incurable nullity of the hearing itself.

Conclusions

In conclusion, Judgment No. 24657 of 2023 represents an important step in protecting the rights of defendants and their counsel. It underscores the importance of ensuring that, even in emergency contexts, the right to defense remains a fundamental pillar of criminal proceedings. The Court of Cassation, with this decision, has not only protected the role of the defense counsel but has also drawn attention to the need for adequate technological support for hearings, in order to avoid situations of injustice and violation of fundamental rights.