The Defender's Incompatibility in Criminal Proceedings: A Crucial Clarification from the Court of Cassation (Judgment No. 27827/2025)

In the complex landscape of criminal procedural law, the role of the defense counsel is of paramount importance, ensuring the protection of the fundamental rights of the accused. However, when a single lawyer undertakes the defense of multiple parties involved in the same proceeding, delicate issues regarding potential conflicts of interest may arise. The Court of Cassation, with its recent Judgment No. 27827 of 2025, has provided a fundamental clarification on the prerequisites and conditions that determine the defender's incompatibility, delineating a precise boundary between admissible multiple defenses and those that compromise the effectiveness of the right to defense.

The Court of Cassation's Judgment: A Clear Boundary for Multiple Defenses

The ruling of the Supreme Court, issued by the First Criminal Section on June 13, 2025, and filed on July 29, 2025, with Dr. A. V. Lanna as rapporteur and author, is part of a procedural context involving defendants Z. P.M. and O. M. The Court of Assizes of Appeal of Catania, in a decision dated October 28, 2024, had rejected a request, and the Court of Cassation has now upheld this orientation. The core of the issue concerns the interpretation of Article 106, paragraph 1, of the Code of Criminal Procedure, which governs the defender's incompatibility. This article is crucial to ensure that the defense is always oriented towards the best interests of the individual client, without the needs of one prejudicing those of the other.

In matters of technical defense, the incompatibility provided for by Article 106, paragraph 1, of the Code of Criminal Procedure exists only where the conflict of interests between co-defendants is actual, concrete, and current, meaning such as to make it impossible to propose defense arguments that are logically reconcilable with each other, to imply a procedural position that renders common defense concretely inefficient and unproductive, and to be ascertainable in relation to specific procedural acts.

This maxim from Judgment No. 27827/2025 is of considerable significance and unequivocally clarifies the requirements for incompatibility. A potential or abstract conflict is not sufficient; rather, it is necessary for the conflict of interests to be