The Defendant's Procedural Capacity between Written Procedure and Oral Hearing: Commentary on Cass. pen. no. 13788/2025
With its decision of April 8, 2025 (filed), the Second Criminal Section of the Court of Cassation has provided a firm point of reference on the matter of the defendant's capacity to stand trial, clarifying that the judge's evaluative parameters remain the same in both oral and so-called "written" proceedings. Below, we analyze the ruling, the Court's reasoning, and the possible practical implications for technical defense.
The Heart of the Ruling
In matters of the defendant's capacity to stand trial, the judge's assessment does not differ according to the procedure initiated, whether it involves oral or written proceedings, since participating consciously in the trial means being able to respond adequately and with awareness to accusations and prepare a self-defense, understood as the possibility of exercising a series of recognized defensive activities. (In its reasoning, the Court added that in written proceedings, the defendant can submit defense briefs, which are evidently capable of influencing the judge's conviction).
The Court, referring to Article 70 of the Code of Criminal Procedure and constitutional case law on the right to defense, clearly states that the defendant's ability to "participate consciously" in the proceedings must be verified with the same criteria, regardless of whether the hearing takes place in court or is based on documents. The objective is to ensure that the defendant can understand the charges, interact with their lawyer, and influence the judge's conviction.
Written Procedure and Defense Guarantees
The "document-based" procedure has seen significant development with recent reforms aimed at reducing the judicial workload. However, as the Court of Cassation recalls, the written nature does not exempt the judge from assessing the defendant's procedural capacity. This assessment:
- is independent of the means of participation (physical or electronic);
- requires, if necessary, expert reports or consultations pursuant to Article 70 of the Code of Criminal Procedure;
- involves the suspension of proceedings if temporary or permanent incapacity emerges.
The Panel also emphasized that in written proceedings, the defendant is still authorized to file briefs, requests for evidence, and hearing notes, tools that ex lege must be examined by the judge in chambers. It follows that the effectiveness of the adversarial principle can be safeguarded, provided that the defendant is placed in a position to understand and decide.
Practical Impact for Practitioners
For defense counsel, the ruling requires them not to lower their guard in written proceedings, as procedural capacity remains a prerequisite. In case of doubt, it is advisable to:
- urge the judge to order expert assessments;
- request the suspension of proceedings pursuant to Article 72 of the Code of Criminal Procedure;
- document the cognitive or psychological difficulties of the client, also through medical certifications.
As for the judge, the obligation to motivate their decision on capacity cannot be limited to standard formulas, but must account for the reasons supporting the defendant's ability to defend themselves.
Conclusions
The Court of Cassation, with ruling no. 13788/2025, reiterates that the right to defense "does not change its attire" depending on the procedure. The capacity to stand trial is an indispensable prerequisite that permeates every stage of the proceedings, whether oral or written. For lawyers and magistrates, the lesson is twofold: rigorously safeguard the guarantees of the defendant's effective participation and value defense tools even in written proceedings. Only in this way can the criminal trial be considered truly fair and compliant with constitutional and European standards.
