Commentary on Judgment no. 37875 of 2023: Obligation to Appoint a Public Defender

Judgment no. 37875 of 2023 by the Court of Cassation addresses a crucial issue in criminal procedural law: the judge's obligation to appoint a public defender in case of the withdrawal of a privately retained counsel. This aspect is fundamental to guaranteeing the right to defense, a cornerstone of a fair trial.

Context of the Judgment

In the specific case, the appellant, B. P.M., had experienced a withdrawal from his privately retained counsel. The central question was whether the judge had fulfilled the obligation to promptly appoint a public defender, as stipulated by art. 97, paragraph 1, of the Code of Criminal Procedure. The Court highlighted that the failure to appoint resulted in a violation of the defendant's rights, constituting a situation of substantially impaired defense.

Withdrawal from defense mandate - Failure to appoint a new privately retained counsel - Judge's obligation to promptly appoint a public defender pursuant to art. 97, paragraph 1, of the Code of Criminal Procedure - Existence - Violation - Nullity pursuant to art. 178, letter c), of the Code of Criminal Procedure - Reasons - Case law. In the event of withdrawal from the mandate by the privately retained counsel, the judge, in the absence of a new private appointment, has the obligation, under penalty of nullity pursuant to art. 178, letter c), of the Code of Criminal Procedure, to promptly designate a public defender, in order to prevent the defendant, in a situation of substantially impaired defense, from being de facto precluded from procedural choices subject to peremptory deadlines and to allow the appointed defender to inform the client, first and foremost, of the option to designate a new privately retained counsel. (Case in which the appellant, detained for another reason, was only able to appoint a new privately retained counsel two days before the hearing before the Court of Appeal, a circumstance also attributable to the delay with which the judge, after acknowledging the withdrawal from the mandate by the original privately retained counsel, had appointed, pursuant to art. 97, paragraph 1, of the Code of Criminal Procedure, a public defender).

Implications of the Judgment

This judgment reiterates the importance of the right to defense, clearly stating that the judge cannot remain inactive in the face of a lawyer's withdrawal. Delays in appointing a public defender can seriously prejudice the defendant's ability to exercise their rights and conduct an adequate defense. Below are some practical implications of the judgment:

• Obligation to appoint: The judge must always proceed with the appointment of a public defender in case of withdrawal.
• Timeliness: It is essential that this appointment occurs without delay to guarantee the defendant's rights.
• Prevention of situations of impaired defense: The judgment emphasizes that the protection of the defendant's rights is a priority in criminal proceedings.

Conclusions

In conclusion, judgment no. 37875 of 2023 represents an important step forward in protecting the rights of defendants in criminal proceedings. The Court of Cassation has clarified that adherence to the procedures for appointing a defender is essential to ensure a fair and equitable trial. Legal professionals must pay particular attention to these aspects to avoid violations that could compromise the legitimacy of the proceedings and the right to defense.