Remote Interrogation and the Right to Defense: Nullity for Failure to Notify the Defense Counsel according to the Court of Cassation (Judgment No. 26373/2025)

The right to defense is a fundamental pillar of our legal system. With the introduction of remote interrogations, it is crucial to understand how these innovations align with defensive guarantees. The Court of Cassation, in Judgment No. 26373 of 2025, clarified the consequences of failing to notify the defense counsel regarding the suspect's remote participation in the guarantee interrogation.

Remote Interrogation and Defensive Guarantees

The guarantee interrogation is an essential moment for a suspect subject to a precautionary measure. The participation of the defense counsel is indispensable. The remote modality (Art. 133-ter of the Code of Criminal Procedure) raises delicate issues. In the case examined (defendant M. F.), the Supreme Court addressed the failure to notify the defense counsel about the decree ordering remote participation. This omission affects the defense counsel's ability to fully exercise their rights, including the choice to be present at the proceeding at the client's location, an aspect that is not merely logistical but strategic for the defense.

Intermediate Nullity: The Court of Cassation's Interpretation

The central issue, addressed by the Court of Cassation with rapporteur D. G. P., concerns the legal qualification of such an omission. The Court ruled:

The failure to notify the defense counsel of the decree ordering the suspect's remote participation in the guarantee interrogation constitutes a general intermediate nullity, pursuant to Article 178, paragraph 1, letter c), of the Code of Criminal Procedure, as it affects the exercise of the defense counsel's right, provided for by Article 133-ter, paragraph 7, of the Code of Criminal Procedure, to choose to be present at the proceeding at the location where the client is. (Case in which the Supreme Court held the nullity to be cured, pursuant to Article 182, paragraph 2, of the Code of Criminal Procedure, as the invalidity had not been raised before the act was completed by the defense counsel, who appeared before the judge and was informed of the client's remote connection).

Article 178, paragraph 1, letter c) of the Code of Criminal Procedure includes nullities concerning the intervention of the defense counsel among general nullities. The failure to notify compromises their full participation, violating the right, under Article 133-ter, paragraph 7, of the Code of Criminal Procedure, to choose the physical location of their presence. This is an "intermediate nullity," which can be cured if not raised within specific procedural deadlines and cannot be raised after the first-instance judgment.

Curing the Nullity in the Specific Case

The Supreme Court rejected the appeal, considering the nullity to have been cured. The invalidity had not been raised by the defense counsel before the act was completed. Despite the omission, the defense counsel had appeared and had been informed of the remote connection. Pursuant to Article 182, paragraph 2, of the Code of Criminal Procedure, intermediate nullities cannot be raised by the party that caused them or tacitly waived them. The failure to raise the objection in a timely manner resulted in the nullity being cured, highlighting the importance for legal professionals to be vigilant and ready to raise procedural irregularities within the prescribed timeframes.

Key legislative references:

• Art. 133-ter of the Code of Criminal Procedure (remote participation)
• Art. 178, paragraph 1, letter c) of the Code of Criminal Procedure (general nullities regarding defense counsel's intervention)
• Art. 182, paragraph 2, of the Code of Criminal Procedure (conditions for curing nullities)

Conclusions

Judgment No. 26373 of 2025 by the Court of Cassation provides guidance for legal practitioners dealing with remote interrogations. It reaffirms the centrality of the right to defense and the necessity of timely notification to the defense counsel. It emphasizes the importance of procedural timelines for raising nullities. For effective defense, it is essential that the defense counsel is informed and proactive in identifying and contesting any procedural defects, thereby preserving the integrity of the proceedings and constitutional guarantees.