Commentary on Judgment No. 27546 of 2023: Nullity of Service on Appeal

Judgment No. 27546 of April 3, 2023, filed on June 26, 2023, offers important insights into the validity of service in criminal proceedings. In particular, the Court of Cassation ruled on the issue of the nullity of service effected at a place other than the domicile elected or declared by the defendant, clarifying the legal consequences arising therefrom.

Context of the Judgment

The case examined by the Court concerned a summons for appeal served on the defendant at a place other than the one validly elected. The Court held that such an irregularity leads to a general nullity, defined as an intermediate-regime nullity, which must be raised within the time limits provided for by Article 182 of the Code of Criminal Procedure. However, if the service is inadequate to ensure the recipient's actual knowledge of the act, an absolute nullity is constituted, pursuant to Article 179 of the same code.

Headnote of the Judgment

Summons for appeal - Service at a place other than the elected or declared domicile - Intermediate-regime nullity - Existence - Absolute nullity - Conditions - Case law. In matters of service, where the summons for the appeal judgment is served on the defendant at a place other than the validly elected or declared domicile, a general intermediate-regime nullity is determined, which must be raised within the forfeiture periods provided for by Article 182 of the Code of Criminal Procedure, unless the irregular service is, in practice, inadequate to allow the recipient's actual knowledge of the act, in which case an absolute nullity for omitted service within the meaning of Article 179 of the Code of Criminal Procedure is constituted. (Case in which the Court deemed valid the service effected at the domicile previously elected by the defendant - the office of the subsequently revoked defense counsel - rather than at the domicile subsequently declared - the place of residence -, noting that the new defense counsel for the defendant had raised no objections before the appellate judges and that the appeal had not provided specific indication of such an absolute inadequacy of the service).

Legal Implications

This judgment thus clarifies two fundamental aspects. Firstly, the importance of the defendant's choice of domicile, which must always be communicated clearly and in accordance with current regulations. Secondly, it emphasizes the importance of controlling the validity of service to ensure the right to defense and the proper information of the defendant regarding the stages of the proceedings. It is crucial for defense lawyers to be vigilant and attentive in monitoring the correctness of service to avoid encountering legal problems that could compromise the successful outcome of the defense.

Conclusions

In conclusion, judgment No. 27546 of 2023 serves as an important confirmation of the protections provided in Italian criminal proceedings regarding the validity of service. It reiterates that any irregularity in service can have significant consequences on the defendant's right to defense. Legal professionals must pay particular attention to these issues to ensure fair justice that respects the fundamental rights of every citizen.