Court of Cassation, Judgment No. 23670/2025: 'Informational Negligence' Is Not Enough for Declaration of Absence in Criminal Proceedings

The right to participate in one's own trial is one of the fundamental pillars of any judicial system inspired by the principles of the rule of law and due process. The recent judgment No. 23670 of 2025 by the Court of Cassation, presided over by Judge L. P. and with Judge R. G. as rapporteur, addresses a crucial aspect of this right: the prerequisites for declaring the defendant absent in criminal proceedings. This ruling provides significant clarifications, annulling with referral an order from the Court of Appeal of Naples and delineating the boundaries between mere "informational negligence" and the actual intent to evade the proceedings, with important practical implications for defendants and their lawyers.

The Right to Effective Participation and the Declaration of Absence

The Italian criminal procedure system, especially following the reforms that introduced Article 420-bis of the Code of Criminal Procedure (c.p.p.) and the institute of rescission of judgment (Art. 629-bis c.p.p.), has focused on the need to ensure that the defendant is actually aware of the pending proceedings against them and their phases. The objective is to avoid convictions in absentia when the defendant has not had a real opportunity to defend themselves, in accordance with the principles of the European Convention on Human Rights (ECHR) on due process. The declaration of absence, therefore, is not a formal act but presupposes a substantive assessment of the defendant's awareness.

The Case Examined by the Court of Cassation: Appointment of Counsel and "Informational Negligence"

The case that led to the Supreme Court's ruling concerned the defendant G. E. In this specific instance, the Court of Appeal of Naples had inferred the defendant's actual knowledge of the pending proceedings solely from the appointment of a chosen defense counsel. However, as highlighted by the Court of Cassation, the appointed counsel had never participated in the hearings. This element raised the central question: is the mere appointment of a lawyer, in the absence of any other activity or proof of direct knowledge of the proceedings by the defendant, sufficient to assert that they voluntarily chose not to participate or that they were actually aware of the proceedings?

In matters of rescission of judgment, the effective knowledge of the proceedings legitimizes the declaration of absence; the defendant's intent to evade it cannot be automatically inferred from their "informational negligence." (In application of this principle, the Court annulled the order of the appellate judge who, despite deeming the declaration of the defendant's absence erroneous, inferred actual knowledge of the pending proceedings from the appointment of a chosen defense counsel, even though the latter had never participated in the hearings).

The headnote of judgment No. 23670/2025 is concise and clear. The Court of Cassation strongly emphasizes that mere "informational negligence" on the part of the defendant – meaning their inaction in seeking information about the proceedings – is not sufficient to presume that they voluntarily decided to evade justice. The declaration of absence must be based on concrete and stringent proof of actual knowledge of the proceedings. The appointment of a chosen defense counsel, while an indication, cannot automatically translate into an absolute presumption of knowledge, especially if the counsel does not undertake any procedural activity. The underlying principle is that the right to defense and participation cannot be curtailed based on mere conjecture or weak indications.

Implications of the Judgment: Clarity on the Prerequisites for Absence

This ruling by the Court of Cassation is of fundamental importance for the correct application of the rules on absence and rescission of judgment. It strengthens the guarantees for the defendant and requires judges to conduct a careful and rigorous assessment of the prerequisites for declaring absence. Among the main implications, we can highlight:

• **The need to prove actual knowledge:** generic indications or presumptions are not enough; the judge must ascertain that the defendant was aware of the proceedings against them.
• **Insufficiency of mere inaction:** the defendant's "informational negligence," i.e., their passivity in obtaining information, cannot be interpreted as an intent to evade.
• **The role of chosen defense counsel:** their appointment, in itself, does not automatically rectify any lack of actual knowledge on the part of the defendant, especially if the counsel does not take significant procedural steps.
• **Protection of the right to defense:** the judgment reiterates the importance of the "due process" principle and the defendant's right to defend themselves, which includes the possibility of physically participating in hearings or being fully informed of them.

Conclusions: A Significant Step for Procedural Guarantees

Judgment No. 23670 of 2025 by the Court of Cassation represents a significant piece in the jurisprudence concerning trials in absentia. It consolidates the trend aimed at protecting the defendant's right to conscious and voluntary participation in the proceedings, preventing their absence from being declared based on insufficient evidence or mere conjecture. This ruling serves as a warning to legal professionals to carefully evaluate every element before considering a defendant absent, thereby ensuring the full implementation of the constitutional and conventional principles that inform our criminal justice system.