Limits to the Deductibility of Nullity for Failure to Transmit Documents: The Cassation Court Ruling No. 25745 of 2025

In the complex and fascinating world of criminal procedural law, nullities represent a crucial aspect, capable of profoundly influencing the outcome of a trial. The timeliness with which these are raised is often decisive. On this subject, the Court of Cassation has intervened with a highly relevant ruling, Judgment No. 25745 of 30/04/2025 (filed on 14/07/2025), signed by President F. G. and Rapporteur T. D., rejecting the appeal filed by the defendant A. G. against the judgment of the Court of Appeal of Naples. This decision offers fundamental clarifications on the limits of deductibility of a particular category of nullities: that arising from the failure to transmit the complete records of the first-instance proceedings to the Court of Appeal.

The Legal Issue: Intermediate-Regime Nullities and Failure to Transmit Documents

The core of the issue addressed by the Supreme Court concerns so-called "intermediate-regime nullities," governed by Articles 178 and 180 of the Code of Criminal Procedure. These are procedural defects that, while not absolute (and therefore ascertainable at any stage and level of the proceedings), are also not relative (i.e., curable if not immediately objected to). In particular, the case at hand focuses on the nullity that occurs when the Court of Appeal does not receive the complete records of the first-instance proceedings, an essential requirement to ensure a fully informed and legitimate second-instance judgment, as provided for by Article 590 of the c.p.p.

The failure to transmit the records can compromise the right to defense and the correct formation of the appellate judgment. However, as with all nullities, there is also a time limit within which these can be asserted, under penalty of their irrelevance. And it is precisely on this limit that the Cassation Court has set a firm point.

The Supreme Court's Position: An Insurmountable Limit

The judgment under review, with its maxim, crystallizes a principle already established but which deserves constant attention from legal practitioners. The Court ruled that:

In matters of appeals, the intermediate-regime nullity arising from the failure to transmit the complete records of the first-instance proceedings to the court of appeal cannot be raised after the pronouncement of the final judgment of the stage in which it occurred, and is therefore not deductible for the first time with the appeal to the Court of Cassation.

This means, in simple terms, that if a nullity occurs during the appellate proceedings due to the incompleteness or failure to transmit the first-instance records, the defendant or their defense has the burden of raising this defect before the Court of Appeal pronounces its judgment. If they do not do so at that time, they lose the possibility of raising the issue for the first time with the appeal to the Court of Cassation. The Cassation Court, in fact, cannot be the first judge to ascertain and rule on a nullity that should have been contested in a previous stage. This principle aims to ensure procedural stability and to prevent easily ascertainable defects from being raised.