Nullity of Hearing due to Defender's Impediment: Analysis of Supreme Court Ruling No. 22099 of 2025

The Supreme Court of Cassation, with ruling No. 22099 of 2025, has clarified a crucial point for the protection of the right to defense in criminal proceedings. The ruling establishes that Article 420-ter, paragraph 5, of the Code of Criminal Procedure also applies to proceedings for rescission of judgment. The legitimate impediment of the defender, if documented and promptly communicated, cannot be ignored, under penalty of the nullity of the hearing. A decision that strengthens procedural guarantees and the right to a fair trial.

Regulatory Context: Rescission of Judgment and Impediment

Article 629-bis of the Code of Criminal Procedure governs the "rescission of judgment," an extraordinary remedy to reopen proceedings concluded with an irrevocable judgment in the presence of serious procedural violations. Article 420-ter, paragraph 5, of the Code of Criminal Procedure requires the judge to postpone the hearing if the defender demonstrates a legitimate impediment. This provision, an expression of the right to defense (Art. 24 of the Constitution, Art. 6 of the ECHR), is vital to ensure a fair trial.

The provision of Art. 420-ter, paragraph 5, of the Code of Criminal Procedure also applies to the proceeding concerning the request for rescission of judgment pursuant to Art. 629-bis of the Code of Criminal Procedure, so that the legitimate impediment of the chosen defender, documented and promptly communicated, constitutes a cause for postponement which, if disregarded, leads to the nullity of the chamber hearing.

This maxim from ruling No. 22099 of 2025 is fundamental. It asserts that even in the rescission of judgment proceeding, the right to technical defense is guaranteed. If the defender is legitimately prevented from appearing (e.g., due to illness or an unavoidable commitment), and this impediment is documented and promptly communicated, the judge must postpone the hearing. Ignoring this, as in the case of Z. T., violates a cornerstone principle of criminal proceedings, resulting in the nullity of the chamber hearing. The nullity reaffirms that the procedure must conform to constitutional and conventional principles of protection.

Practical Implications of the Decision

The decision of the Court of Cassation, annulling without referral the judgment of the Court of Appeal of Rome of 30/01/2025, has a significant impact on practice. It establishes a clear precedent, reminding us of the non-derogable nature of respecting the right to defense even in extraordinary phases of criminal proceedings. For defenders, the ruling reiterates the importance of:

• Precisely documenting the cause of the impediment.
• Promptly communicating the impediment to the judicial authority.
• Ensuring that the impediment is legitimate and justified.

For defendants, this ruling is an additional guarantee: their right to be assisted by a chosen and present defender cannot be curtailed, not even during the rescission of judgment phase. The nullity of the hearing, in case of failure to postpone, ensures that the proceeding is repeated in full compliance with guarantees.

Conclusions: Unwaivable Protection

Ruling No. 22099 of 2025 by the Court of Cassation strengthens the protection of the right to defense. By reiterating the applicability of Article 420-ter, paragraph 5, of the Code of Criminal Procedure to the rescission of judgment proceeding, the Supreme Court consolidates the foundations of a fair and just trial, in line with the Constitution (Articles 24 and 111) and the ECHR (Article 6). It serves as a warning: form, when it concerns fundamental guarantees, is substance and cannot be overlooked. Justice is the respect for procedures that ensure maximum protection for every individual.