The Court of Cassation and Force Majeure: Notification to the Appointed Counsel during the Pandemic (Judgment No. 21817 of 2025)

The judicial system, especially in times of crisis such as the pandemic, often finds itself balancing the need for speed and simplification with the guarantee of citizens' fundamental rights. It is within this delicate balance that the recent ruling of the Court of Cassation, judgment No. 21817, filed on June 9, 2025, intervenes. This ruling addressed a matter of crucial importance for criminal procedural law: the reinstatement of the deadline for appeal in cases of 'simplified' notification solely to the appointed counsel during the Covid-19 emergency. The decision, which quashes with referral a previous ruling by the Court of Appeal of Naples, offers fundamental insights into the concept of force majeure and the protection of the defendant's right to defense.

Context of the Ruling: Pandemic Emergency and Notifications

The procedural case originates from an adjournment of a first-instance trial, ordered during the full Covid-19 health emergency, pursuant to Article 83, paragraphs 1, 13, and 14 of Decree-Law No. 18 of 2020 (converted, with amendments, by Law No. 27 of 2020). This legislation, aimed at streamlining procedures during an exceptional period, provided for the possibility of making communications and notifications via certified email (PEC) solely to the defense counsel. In the specific case, the notification of the adjournment order was sent only to the defendant's appointed counsel, Ms. G. L., without her being personally informed. This method of communication prevented Ms. G. L. from participating in the trial and subsequently filing an appeal within the prescribed deadlines, raising the issue of reinstatement of the deadline pursuant to Article 175 of the Code of Criminal Procedure.

The Ruling's Headnote: A Fundamental Principle

The Court of Cassation, with judgment No. 21817 of 2025, enunciated a legal principle of considerable impact. Here is the full headnote:

In matters of reinstatement of the deadline for filing an appeal, the notification via certified email, solely to the appointed counsel, of the order adjourning the first-instance trial, issued outside of a hearing during the Covid-19 pandemic emergency, pursuant to Article 83, paragraphs 1, 13, and 14 of Decree-Law of March 17, 2020, No. 18, converted, with amendments, by Law of April 24, 2020, No. 27, constitutes a cause of force majeure that prevented the defendant, for external reasons not attributable to them, from participating in the trial and subsequently filing the appeal, given that the legislative choice to simplify procedures during that period, by providing for the sending of communications or notifications via certified email solely to the defense counsel, applies only in cases where the latter has received a retainer.

This headnote clarifies a fundamental point: notification solely to the appointed counsel, within a context of regulatory simplification dictated by the emergency, cannot be automatically equated with full knowledge of the order by the defendant. The Court of Cassation emphasizes that the rationale behind the emergency legislation was to facilitate communications with the retained counsel, who has a direct and continuous relationship with their client. The position of the appointed counsel is different; their appointment is mandated by law to ensure technical defense, but they do not always have immediate and established contact with the defendant, especially in the absence of specific communication from the judicial authority to the defendant themselves. Preventing the defendant, for reasons not attributable to them, from participating in the trial or filing an appeal constitutes a case of force majeure, justifying reinstatement of the deadline pursuant to Article 175 of the Code of Criminal Procedure, which allows for the reopening of expired procedural deadlines due to an unforeseeable and insurmountable event.

Practical Implications for Defense

The Supreme Court's decision has significant practical implications for the protection of the defendant's rights and for the work of lawyers. In particular, the following aspects are highlighted:

• Strengthening the Right to Defense: The judgment reaffirms the centrality of the defendant's right to be informed and to actively participate in their own trial, as well as to fully exercise the right to appeal.
• Limits of Electronic Notifications: It is clarified that procedural simplifications, while necessary in certain circumstances, can never compromise the core principles of a fair trial. Notification solely to the appointed counsel, without further measures to inform the defendant, proves insufficient to ensure full knowledge of the order.
• Distinction Between Appointed and Retained Counsel: The ruling underscores the importance of this distinction for procedural guarantees. While retained counsel acts on the client's mandate, appointed counsel intervenes to ensure technical defense even in the absence of an explicit choice by the defendant, and therefore, communication methods must take this difference into account.
• Protection of the Possibility to Appeal: The judgment ensures that a defect in notification or a lack of information cannot preclude the defendant from exercising a fundamental right such as filing an appeal, thereby restoring the possibility of an effective defense.

Conclusions

Judgment No. 21817 of 2025 by the Court of Cassation represents a bulwark in defense of the principles of a fair trial and the defendant's right to defense, even and especially in exceptional contexts such as the pandemic emergency. It reminds us that, even with the aim of necessary modernization and simplification of procedures, the guarantee that the defendant is effectively placed in a position to know the developments of their proceedings and to fully exercise their rights cannot be disregarded. For legal professionals, this ruling serves as a warning to pay the utmost attention to notification and communication methods, especially when they involve appointed counsel, in order to prevent procedural formalities from translating into a violation of fundamental individual rights.