Commentary on Judgment No. 39576 of 2024: Defendant's Absence and Right to Defense

Judgment No. 39576 of October 1, 2024, filed on October 28, 2024, offers important clarifications regarding the rights of the defendant in criminal proceedings, particularly concerning the appointment of legal counsel and their absence. The Court of Cassation, presided over by L. I., quashed without remand the decision of the Court of Appeal of Venice, addressing crucial issues for the defense and the defendant's awareness of the proceedings.

Context of the Judgment

The case concerned A. H., who had declared himself absent during the proceedings, despite having appointed a trusted legal counsel with an elected domicile at their office. However, the counsel had waived the mandate without communicating this decision to the defendant. The Court ruled that this situation could not be interpreted as an indication of the defendant's actual awareness of the proceedings, as their absence was due to the counsel's conduct and not to an informational oversight.

Election of domicile with trusted counsel - Subsequent waiver of defense mandate not communicated - Declaration of absence prior to the entry into force of Legislative Decree No. 150 of 2022 - Actual knowledge of proceedings - Exclusion - Reasons. The appointment of a trusted counsel with an elected domicile at their office, followed by a waiver of the mandate not communicated by the professional prior to the commencement of the proceedings, does not constitute an indication of the defendant's actual knowledge of the proceedings, in cases where their absence has been declared pursuant to Article 420-bis of the Code of Criminal Procedure, as amended prior to the rewriting by Article 23, paragraph 1, letter c), of Legislative Decree of October 10, 2022, No. 150, given that the aforementioned's non-participation is attributable, not to their informational negligence, but to the counsel's conduct.

Legal Implications

This judgment has several significant implications for the right to defense. In particular, it underscores the duty of legal counsel to maintain clear and timely communication with their client. The Court establishes that the waiver of the mandate must be communicated, otherwise the defendant's right to be informed and to actively participate in the proceedings is compromised. The main legal considerations can be summarized in the following points:

• Counsel must ensure effective communication with the defendant.
• Waiver of the mandate must be formally communicated to avoid misunderstandings.
• The right to defense cannot be compromised by the negligence of legal counsel.

Conclusions

In conclusion, judgment No. 39576 of 2024 represents a significant step forward in protecting the rights of defendants in criminal proceedings. It reiterates the importance of communication between counsel and client and the necessity of ensuring that any waiver of mandate is adequately communicated. The Court thus demonstrates particular sensitivity towards the right to defense, affirming that responsibility for the defendant's absence cannot fall upon them if caused by the conduct of their counsel. This principle is fundamental to ensuring a fair trial, in line with Italian and European regulations.