Production of documents by the defence counsel of the unconstituted victim: analysis of the Criminal Cassation judgment no. 14469/2025

With judgment no. 14469, filed on April 14, 2025, the Criminal Cassation Court, Second Section (Pres. G. V., Rapporteur and Author M. D. B.), once again addresses the issue of the production of documents during the trial by the defence counsel of the victim who has not constituted themselves as a civil party. The case originated from proceedings before the Justice of the Peace of Rome and involved the defendant E. C.; the Public Prosecutor, F. B., had contested the regularity of the documentary acquisition. However, the Supreme Court declared the appeal inadmissible, reaffirming an already established principle.

The principle of law recalled by the Cassation Court

The production of documents during the trial, by the defence counsel of the victim who has not constituted themselves as a civil party, does not give rise to any nullity, neither general nor relative, representing a mere irregularity, devoid of consequences on the validity of the trial proceedings.

The maxim, taken from similar previous judgments (Cass. 44436/2012, 6357/2017, 27388/2018), clarifies that the defence activity of the victim's lawyer – even if not accompanied by the constitution as a civil party pursuant to art. 90 c.p.p. – does not affect the correct conduct of the criminal proceedings. Consequently, any disputes regarding the admission of such documents cannot translate into claims of nullity under articles 177, 178 letter c), and 181 c.p.p.

Why is there no nullity?

The Court starts from a systematic point: procedural nullity is an exceptional remedy, subject to the principle of exhaustiveness. Article 178 c.p.p. lists the hypotheses of absolute or relative nullities, without contemplating the case in question. It follows that any violation constitutes, at most, a procedural irregularity, cured by law and incapable of invalidating the decision.

• Art. 90 c.p.p.: recognizes the victim's right to information and participation, but does not make the production of documents conditional on the constitution as a civil party.
• Art. 177 c.p.p.: governs general, exhaustive nullities.
• Art. 181 c.p.p.: non-absolute nullities must be raised promptly, otherwise they are cured.

In the absence of an explicit legal provision, the Cassation Court applies the principle of procedural legality: ubi lex non distinguit, nec nos distinguere debemus.

Practical implications for the defence and the judge

For the defendant's defence counsel, the judgment confirms the need to focus the procedural strategy on the intrinsic relevance and admissibility of the document, not on alleged nullities. The judge, for their part, may admit the production, limiting themselves to assessing its relevance and evidentiary authenticity.

The decision is also consistent with the principles of a fair trial under art. 111 of the Constitution and art. 6 of the ECHR, which require a balance between the rights of the accused and the protection of the victim, without excessive formalism that slows down the proceedings.

Conclusions

Cass. pen. no. 14469/2025 reiterates an now established trend: the mere production of documents by the victim's lawyer does not constitute grounds for nullity. For legal professionals, this means greater certainty and fewer disputes over procedural exceptions. The focus shifts, as advocated by the Cartabia reform, to the substance of the evidentiary adversarial process rather than formal technicalities.