The Court of Cassation on the Failure to Grant a Defence Period: Analysis of Judgment No. 16487 of 2025

The right to defence is a fundamental pillar of any guarantor legal system, elevated to an inviolable principle by the Italian Constitution. Its concrete implementation, however, may encounter obstacles or interpretations that deserve careful analysis. It is in this context that Judgment No. 16487, filed on May 2, 2025, by the Court of Cassation, is placed. This ruling offers important clarifications on the nature and consequences of the failure to grant a "defence period" in criminal proceedings. The decision, presided over by Dr. M. B. and with Dr. P. V. as rapporteur, rejecting the appeal concerning the defendant E. O., proves crucial for understanding how and when a procedural defect of such magnitude can be asserted.

The Right to Defence and the Period under Art. 108 c.p.p.

Article 108 of the Code of Criminal Procedure (c.p.p.) provides for the "defence period," an institution that guarantees the defence counsel adequate time to prepare their strategy, study the case files, and best carry out their mandate. Its function is to ensure a defence that is not merely formal but substantial and effective, in line with Article 24 of the Constitution and Article 6 of the European Convention on Human Rights (ECHR). The denial of this period directly affects the fairness of the trial. The issue addressed by the Court of Cassation concerned precisely the legal qualification and the methods of raising the nullity arising from this omission.

The Ruling of the Court of Cassation: Intermediate Nullity

The Court of Cassation, with Judgment No. 16487 of 2025, reiterated a fundamental principle on the nature of nullity arising from the failure to grant a defence period. Here is the summary of the principle:

The failure to grant the defence period provided for by art. 108 of the Code of Criminal Procedure, relating to the defendant's assistance and not the absence of the defence counsel, results in a general intermediate nullity that cannot be raised for the first time in an appeal to the Court of Cassation, but must be objected to by the defence counsel present, immediately after the act that denies the period has been performed.

This ruling is crucial because it distinguishes the situation: the nullity is not linked to the absence of the defence counsel, but to the lack of adequate technical assistance. Article 108 c.p.p. aims at the quality and effectiveness of the defence intervention. The Court of Cassation qualifies such nullity as "general intermediate," pursuant to Article 178, paragraph 1, letter c) c.p.p. This entails a strict procedural consequence:

• It cannot be raised for the first time in the Court of Cassation.
• It must be objected to by the defence counsel present at the hearing.
• The objection must be made immediately after the act that denied the period has been performed, as provided for by Article 182, paragraph 2, c.p.p.

This requirement of timeliness is essential for the speed of the proceedings and to prevent procedural defects from being raised late, nullifying the work done and prolonging the administration of justice. The Court emphasizes the defence counsel's obligation to act promptly to protect the rights of their client.

Practical Implications for Criminal Lawyers

The implications of this ruling are significant. For the defence counsel, the judgment serves as a warning for extreme vigilance and promptness. If the defence period is denied at a hearing, it is imperative to immediately object to the nullity. Failure to object will preclude the possibility of asserting the defect at a later stage, including an appeal to the Court of Cassation. This principle reinforces the idea that the protection of the right to defence requires proactive and conscious action by the lawyer, right from the initial stages of the proceedings where the defect manifests itself.

Conclusions

Judgment No. 16487 of 2025 by the Court of Cassation reaffirms a consolidated case law trend, also recalled by numerous previous summaries. It serves as a reminder of the importance of timeliness in objecting to intermediate nullities, particularly those relating to the right to the defendant's assistance. For criminal lawyers, this means maintaining constant attention to procedural dynamics and acting promptly to protect the fundamental rights of their clients. Only in this way can a fair trial that respects constitutional and conventional guarantees be ensured.