The Defender's Obligation in Case of Health-Related Impediment: Analysis of Cassation Ruling No. 27516 of 2025

The right to defense is a fundamental pillar of our legal system, guaranteed by the Constitution. In this context, the role of the defense counsel is crucial, as they must ensure the full protection of their client's interests at every stage of the proceedings. But what happens when a lawyer faces an impediment, particularly for health reasons, that prevents them from appearing in court? This issue, far from being trivial, has been the subject of frequent debates and jurisprudential clarifications. A recent ruling by the Court of Cassation, Ruling No. 27516 of 2025, offers important food for thought and outlines the defender's obligations in such circumstances with greater precision, consolidating a trend already expressed in previous decisions.

The Right to Defense and the Professional's Obligations

The presence of the defense counsel in court is often indispensable for the validity and regularity of the proceedings, especially in criminal matters. Article 24 of the Italian Constitution enshrines the inviolable right to defense at every stage and level of the proceedings. This right requires the legislator and jurisprudence to ensure that the accused can always count on effective legal assistance. On the other hand, the legal profession entails significant responsibilities, including diligence and continuity in the exercise of the mandate. The balance between the professional's right to health and the duty to ensure the defense of their client is the core around which the Supreme Court's decision revolves.

Ruling 27516/2025: Clarity on the Defender's Impediment

The ruling in question, issued by the First Criminal Section of the Cassation Court with President V. Siani and Rapporteur B. Calaselice, concerns the case of the accused R. B. and the request for an adjournment of a hearing made by his defense counsel for health reasons. The Court of Appeal of Catanzaro had partially rejected this request, and the Cassation Court was called upon to rule on the legitimacy of this decision. The Supreme Court seized the opportunity to reaffirm and clarify a fundamental principle, already expressed in previous summaries (such as No. 38475 of 2019 and Joint Sections No. 41432 of 2016), regarding the defender's burdens in case of impediment. The heart of the decision is contained in the following summary:

A defense counsel prevented from appearing due to health reasons is required, if the impediment is foreseeable, to appoint a procedural substitute, or to indicate the specific reasons that make substitution impossible. (Case concerning a request for adjournment rejected due to the foreseeability of the impediment, and for the deemed unfoundedness of the reasons provided by the defense counsel to justify the failure to appoint a procedural substitute).

This summary is of fundamental importance and deserves careful analysis. It establishes a clear principle: if the defender's impediment for health reasons is foreseeable, the lawyer has a dual obligation. Firstly, they must arrange for the appointment of a procedural substitute. The role of the substitute, provided for by Article 102 of the Code of Criminal Procedure, allows for the continuity of defense even in the absence of the chosen defense counsel. Alternatively, if appointing a substitute is objectively impossible, the defense counsel must specifically indicate the reasons that prevent such substitution. A general declaration of impossibility is not sufficient; detailed and specific reasoning is required.

Foreseeability of Impediment and Professional Diligence

The concept of "foreseeability" is the linchpin of the ruling. An impediment is foreseeable when the defense counsel can anticipate it with reasonable notice, allowing them to take the necessary measures to ensure the continuity of the defense. Typical examples include scheduled surgeries, long-term therapies with known effects, or health situations that, while not emergencies, are known to the professional. In these cases, professional diligence requires the lawyer to make arrangements in advance, either by appointing a substitute or by providing the Court with a stringent and documented justification for the impossibility of doing so.

The ruling in question rejected the request for adjournment precisely because the impediment was deemed foreseeable and the reasons provided for the failure to appoint a procedural substitute were considered unfounded. This reinforces the idea that the burden of proof regarding the unforeseeability of the impediment or the impossibility of substitution falls on the defense counsel. The relevant provisions, such as Article 420-ter, paragraph 5, of the Code of Criminal Procedure, which governs the defender's inability to appear, must be interpreted rigorously, balancing the professional's right to health with the need for swift and correct administration of justice. In summary, the defense counsel must:

• Assess the foreseeability of their own impediment for health reasons.
• In case of a foreseeable impediment, promptly appoint a procedural substitute.
• If appointment is objectively impossible, provide the Court with specific and detailed reasons justifying such impossibility.

Conclusions and Practical Implications

Ruling No. 27516 of 2025 by the Court of Cassation represents an important warning for all legal professionals. It underscores the importance of planning and diligence in the practice of the profession, especially when dealing with situations that may compromise court appearances. The jurisprudential trend is clear: the protection of the right to defense prevails and requires the defense counsel to take all reasonable measures to ensure the continuity of legal assistance, even in case of health problems. This does not mean denying the lawyer's right to health, but rather demanding proactive and responsible management of their absences, in full respect of professional commitments and the client's rights.