Appeal to the Court of Cassation and Absent Defendant: Clarifications from Judgment No. 22378/2025

Criminal justice is a constantly evolving field, and the rulings of the Supreme Court of Cassation serve as essential beacons for the interpretation and application of laws. A recent and significant intervention, Judgment No. 22378 of 2025, has provided important clarifications regarding the application of the burden to file the specific power of attorney to appeal, as provided for by Article 581, paragraph 1-quater, of the Code of Criminal Procedure, introduced by the Cartabia Reform. This decision is fundamental for understanding the procedural guarantees of the defendant, particularly when their absence is contested.

The Cartabia Reform and the Specific Power of Attorney to Appeal

Legislative Decree of October 10, 2022, No. 150, commonly known as the Cartabia Reform, introduced significant amendments to the Code of Criminal Procedure, aiming to streamline proceedings and strengthen guarantees. Among these innovations, Article 581, paragraph 1-quater, stands out, requiring the defendant declared absent to file, under penalty of inadmissibility, a "specific power of attorney to appeal" drawn up by a lawyer registered in the special list for court-appointed defense, with an authenticated signature. This provision aims to ensure that appeals filed in the name of an absent defendant are genuinely desired by the defendant, preventing frivolous or unauthorized appeals that could slow down proceedings.

The Context of Judgment No. 22378/2025: A Turning Point

The central issue addressed by the Supreme Court in Judgment No. 22378/2025, rapporteur E. A. G., concerned the applicability of this specific power of attorney requirement in cases where the appeal to the Court of Cassation does not contest the merits of the conviction, but rather the legality of the order by which the defendant was declared absent. This is a crucial distinction: the defendant is not appealing a judgment by accepting their status as absent, but is questioning the very regularity of the procedure that led to them being considered as such. The Court of Appeal of Turin had previously dealt with the case of defendant P. P.M. D. M., whose appeal was subject to annulment with referral.

In matters of appeals, the provision of Article 581, paragraph 1-quater, of the Code of Criminal Procedure, introduced by Article 33 of Legislative Decree of October 10, 2022, No. 150, is not applicable to cassation proceedings when the appeal concerns the order declaring the defendant's absence.

This maxim crystallizes a principle of enormous importance. The Supreme Court has clarified that the obligation for a specific power of attorney does not extend to appeals to the Court of Cassation that aim to review the defects of the order by which the defendant's absence was declared. In other words, if the defendant contests that they were lawfully declared absent (for example, due to a lack of notification or a legitimate impediment not recognized), they cannot be required to produce a specific power of attorney to appeal that declaration. Requiring such compliance would, in fact, be a contradiction in terms and an unreasonable obstacle to the exercise of the right to defense, as the defendant themselves is denying being "absent" in the procedural sense that would justify the power of attorney.

The Supreme Court's Reasoning and Practical Implications

The reasoning behind this interpretation is profound and rooted in the fundamental principles of criminal procedural law and the right to defense. The imposition of a specific power of attorney presupposes that the defendant is aware of the proceedings and their absence, and that they have consciously chosen not to participate but to appeal the judgment. However, when the appeal concerns precisely the validity of the declaration of absence, the defendant is asserting that they were not properly placed in a position to know about the proceedings or to participate in them. In this scenario, requesting a specific power of attorney would mean precluding the possibility of asserting a fundamental procedural defect. Judgment No. 22378/2025 aligns with jurisprudence that is most attentive to guarantees, overcoming interpretations that could have generated disparities or excessive limitations on the right to defense. It is interesting to note that the same Court has had differing orientations in the past (such as No. 1937 of 2025 Rv. 287389-01), indicating a heated debate and the need for a definitive clarification. This ruling reaffirms the centrality of the right to defense, enshrined in Article 24 of the Italian Constitution and Article 6 of the European Convention on Human Rights, ensuring that no unreasonable procedural obstacle can prevent the defendant from contesting the regularity of their procedural position.

The practical implications are clear:

• Greater protection for the defendant: The defendant's ability to contest procedural defects related to their absence is strengthened.
• Interpretive clarification: The ruling offers legal certainty on a controversial point, reducing the risk of inadmissibility for formal reasons.
• Focus on substance: The Court of Cassation prioritizes the substance of the right to defense over a purely formal application of the rule.

Conclusions

Judgment No. 22378 of 2025 by the Court of Cassation represents a fundamental piece in the mosaic of Italian criminal justice post-Cartabia Reform. By confirming that the obligation for a specific power of attorney to appeal does not apply to appeals contesting the order declaring the defendant's absence, the Supreme Court has drawn a clear line, ensuring that defense guarantees are not compromised by excessively formalistic interpretations. This decision not only offers greater certainty to legal practitioners but, above all, strengthens the protection of the defendant's fundamental rights, ensuring that their "absence" is always and in any case in compliance with the principles of legality and due process.