Nullity of the Appeal Summons Decree: Ruling 22593/2025 and the Right to Defence in the Pandemic Era

The Italian judicial system, like many other sectors, had to face unprecedented challenges during the COVID-19 health emergency. The extraordinary measures adopted to ensure the continuity of justice often raised questions about their compatibility with the fundamental principles of a fair trial and the right to defence. In this context, the Court of Cassation, with its recent ruling no. 22593 of 16/05/2025 (filed on 16/06/2025), provided an important clarification regarding the nullity of the summons decree for appeal proceedings, reaffirming the centrality of defence guarantees even in emergency situations.

The Regulatory Context of the Emergency and New Procedures

During the pandemic period, the legislator intervened with a series of decree-laws to adapt judicial procedures to the new reality. Among these, Decree-Law of 28 October 2020, no. 137 (converted with amendments by Law of 8 December 2020, no. 176), introduced specific measures for the handling of proceedings, including the provision for remote hearings or hearings conducted in writing. In particular, Article 23-bis of Decree-Law no. 137/2020 stipulated that, in appeal proceedings, the participation of parties and defence counsel would generally take place via remote connection or written proceedings, unless parties exercised the option to request oral discussion within a peremptory deadline of fifteen clear days before the hearing.

This regulation, although dictated by pressing public health needs, created considerable uncertainty in its application, especially concerning the correct information and full guarantee of the defendant's right to defence. The ruling in question, which involved F. T. as the defendant, concerned precisely a case where the summons decree for the appeal proceedings, issued by the Court of Appeal of Palermo, contained an invitation for personal appearance, despite the emergency legislation being in force.

The Cassation's Maxim: A Bulwark for the Right to Defence

The core of the Supreme Court's decision is encapsulated in the following maxim, which expresses a fundamental principle for the protection of procedural guarantees:

A summons decree for appeal proceedings is affected by general nullity for violation of Article 178, paragraph 1, letter c), of the Code of Criminal Procedure, if, even if issued during the emergency regulations for the containment of the COVID-19 pandemic, it contains an invitation for the defendant's personal appearance to be present for the case presentation, when this concretely results in a curtailment of the right to defence due to the impossibility of requesting an oral discussion within the peremptory deadline of fifteen clear days before the hearing, as provided by Article 23-bis of Decree-Law of 28 October 2020, converted with amendments by Law of 8 December 2020, no. 176.

This statement is of paramount importance. The Cassation, presided over by D. N. V. and with A. S. as rapporteur, annulled without referral the judgment of the Court of Appeal of Palermo of 01/07/2024, recognizing a general nullity. But what does this mean exactly? Article 178, paragraph 1, letter c) of the Code of Criminal Procedure establishes that the non-observance of the provisions concerning the intervention, assistance, and representation of the defendant and other private parties is always a cause for general nullity. In this specific case, the invitation for personal appearance, instead of indicating the remote participation methods or the option to request oral discussion, led the defendant to a false expectation or, worse, an omission of information that concretely curtailed his right to defence.

The Court emphasizes that nullity occurs only if such an erroneous invitation "concretely results in a curtailment of the right to defence." Therefore, it is not a merely formal nullity, but a general nullity that affects a substantial aspect of the proceedings: the defendant's ability to fully exercise their defence rights, including the right to request oral discussion within the peremptory deadline of fifteen clear days before the hearing, as provided by Article 23-bis.

The implications of this decision are clear:

• **Protection of the Right to Defence:** Even in exceptional periods, the defendant's right to defence must be fully guaranteed.
• **Clarity of Procedural Acts:** Summons acts must be precise and not misleading, providing all necessary information for the exercise of procedural rights.
• **Relevance of Concrete Conduct:** Nullity does not arise from a mere formal error, but when this error causes a real infringement of defence possibilities.

Jurisprudential and Regulatory References

The ruling is part of a line of case law that, even before the pandemic, had highlighted the importance of correct information to the defendant. Previous maxims, such as no. 16356 of 2015 and no. 14728 of 2022, are indeed cited, which, although in different contexts, have always valued the defendant's right to conscious participation in the proceedings.

The relevant norms are numerous, starting from Article 178, paragraph 1, letter c) of the Code of Criminal Procedure, which establishes general nullity, up to Articles 601, paragraphs 3 and 5, and 598-bis, paragraph 3, of the Code of Criminal Procedure, which govern appeal proceedings and the related methods of summons and handling. The Cassation's decision, therefore, merely reiterates established principles, adapting them to the specific context of the COVID-19 emergency and its procedural peculiarities.

Conclusions: The Cassation's Lesson for a Fair Trial

Ruling no. 22593 of 2025 by the Court of Cassation represents an important warning for the administration of justice. It reminds us that the need for speed or adaptation to extraordinary situations can never compromise the essential core of procedural guarantees, primarily the right to defence. A summons decree that, during a period of emergency regulations, erroneously invites personal appearance instead of clarifying the participation methods and the option to request oral discussion, can concretely prejudice the defendant's ability to defend themselves fully, rendering the act null.

For legal professionals, this pronouncement underscores the need for meticulous attention to the drafting of documents and the correct interpretation of regulations, especially when these are subject to rapid or temporary changes. For citizens, it is confirmation that the judicial system, despite its complexities, remains a guarantor of fundamental rights, ready to intervene to correct procedural defects that may affect the regularity and fairness of the trial.