Failure to Notify Postponed Hearing and Intermediate Nullity: Commentary on Criminal Cassation No. 16096/2025

The Third Criminal Section of the Court of Cassation, with judgment No. 16096 filed on April 28, 2025, has provided a significant clarification regarding notifications in criminal proceedings. The case originated from a trial before the Court of Appeal of Naples, which was postponed due to the legitimate impediment of the defendant S. I.; however, the defendant was not notified of the new hearing date. This led to the appeal to the Court of Cassation, which allows us to reflect on a crucial issue: when and how notification nullity occurs and what are the time limits for asserting it.

The Core of the Decision

In case of postponement of the trial due to the legitimate impediment of the defendant, the failure to notify the latter of the new hearing date constitutes a general nullity of intermediate regime, as such it can be remedied if not raised within the terms of Articles 180 and 182, paragraph 2, of the Code of Criminal Procedure, provided that the defendant himself was duly summoned to trial.

The Court clarifies, in peremptory terms, that the failure to communicate the postponement date does not irrevocably vitiate the proceedings. This applies as long as the defendant was correctly summoned at the beginning of the trial: in such a case, the entire defense strategy can rely on the nullity only if it is raised "before the deliberation of the first-instance judgment" (Art. 180) or, in any case, no later than the first hearing following knowledge of the defect (Art. 182, para. 2). A missed opportunity therefore equates to tacit waiver.

Regulatory and Jurisprudential Framework

Article 178 letter c) of the Code of Criminal Procedure considers the failure to summon the defendant a cause for general nullity. However, jurisprudence has distinguished between:

• absolute nullities ex Art. 179 of the Code of Criminal Procedure, which cannot be remedied and can be raised ex officio at any stage and degree of judgment;
• "intermediate regime" nullities, which can be remedied if not raised promptly, to which the present case belongs.

The judgment under comment follows the path laid out by rulings No. 2324/2007, 17027/2013, and 25500/2017, reiterating the need to promptly raise the defect, under penalty of its waiver. A comparative look shows convergence with Article 6 of the ECHR on the defendant's right to be present at the trial, provided that the choice not to appear is truly conscious.

Practical Aspects for the Defense

For defense counsel, the ruling suggests some operational considerations:

• always verify that the notice of postponement has been served, especially when the postponement is due to a legitimate impediment;
• raise the objection of nullity no later than the first available hearing, documenting the lack of notification;
• evaluate the appeal strategy: if the nullity was not raised on appeal, it will be difficult to assert the defect in the Court of Cassation.

From the defendant's perspective, the decision recalls that procedural diligence is not solely the prosecution's burden: the defendant has the right to know the hearing date but must be proactive in promptly reporting any irregularity.

Conclusions

Cassation No. 16096/2025 confirms a now consolidated principle: the framework of intermediate nullities aims to reconcile the right to defense with the need for procedural efficiency. The failure to notify the postponement notice does not represent an automatic "safe passage" to absolute nullity, but a defect to be asserted promptly. For legal professionals, the message is clear: knowing the timing of objections is as important as knowing the facts of the case.