Absolute Nullity on Appeal: The Court of Cassation with Judgment No. 30069/2025 Reaffirms the Right to Oral Hearing

The landscape of criminal procedural law is constantly evolving, especially regarding the conduct of appeal proceedings. In a context of increasing reliance on simplified procedures, the Court of Cassation, with judgment No. 30069, filed on September 1, 2025, has provided an essential clarification with significant practical impact. The ruling, which saw B. A. as the defendant and Judge P. S. as President and Judge S. R. as Rapporteur, annuls a judgment of the Court of Appeal of Messina with referral, reaffirming a core principle: the timely request for an oral hearing by the defense counsel cannot be disregarded, under penalty of absolute nullity of the proceedings.

The Regulatory Framework: Written Procedure and the Right to Oral Hearing

The judgment is part of the debate on the application of Article 598-bis of the Code of Criminal Procedure, which introduced the ordinary written procedure for appeal judgments. This provision aims to streamline proceedings, allowing judgments to be conducted without the physical presence of the parties, through the exchange of written briefs. The objective is efficiency, but the legislator has provided a safeguard: the right of the defense counsel to request an oral hearing. Such a request, if regular and timely, should lead to the abandonment of the written procedure in favor of a public or participatory chamber hearing. The case of B. A. is emblematic: despite the defense having formally requested an oral discussion, the Court of Appeal proceeded with a non-participatory chamber procedure, constituting a serious procedural violation.

The Maxim of the Court of Cassation and its Implications

The Court of Cassation, with the judgment in question, has established an unequivocal principle, the maxim of which deserves to be quoted in full:

In matters of appeal proceedings, under the ordinary written procedure regime introduced by Article 598-bis of the Code of Criminal Procedure, where the defendant's defense counsel has submitted a regular and timely request for an oral hearing, the conduct of the proceedings with a non-participatory chamber procedure takes place according to a procedural model entirely different from the one chosen, with the absence of the defense counsel in a case where their presence is mandatory, thus resulting in an absolute and incurable nullity for the purposes of Article 179, paragraph 1, of the Code of Criminal Procedure.

This statement is of fundamental importance. In simple terms, it means that if the defendant's lawyer expressly requests to discuss the case in court, the judge cannot decide "on paper," i.e., without their presence. Doing so denies the defense counsel the opportunity to fully exercise their role, which is mandatory by law. The absence of the defense counsel in a context where their presence is due and requested transforms a procedural error into an "absolute and incurable nullity," the most serious type of nullity (Article 179, paragraph 1, c.p.p.). This entails the annulment of the judgment and the necessity of retrying the case.

The ruling explicitly refers to Article 111 of the Italian Constitution, which enshrines the principle of a fair trial, and Article 6 of the European Convention on Human Rights (ECHR), which protects the right to a fair trial. These references underscore how the right to defense and adversarial proceedings are not mere formalities but indispensable pillars of any democratic judicial system. The possibility for the defense counsel to argue orally before the judge is an essential guarantee for the effectiveness of the defense.

Reasons for an Incurable Nullity and its Protections

The Court of Cassation clarifies that the nullity is absolute because the failure to hold an oral hearing, despite the request, profoundly alters the procedural model chosen and imposed by law. The absence of the defense counsel occurs in a case where their presence is mandatory and requested, directly impacting the regularity of adversarial proceedings and the right to defense, violating fundamental principles of a fair trial. This entails:

• **Protection of the right to defense**: Oral discussion allows the defense counsel to respond in real-time and clarify complex points.
• **Respect for the principle of adversarial proceedings**: Direct confrontation between the parties is the essence of adversarial proceedings, fundamental for the formation of evidence.
• **Guarantee of a fair trial**: Article 111 of the Constitution requires that every trial be conducted in compliance with adversarial proceedings, under conditions of equality.
• **Prevention of procedural abuses**: The judgment serves as a warning to prevent efficiency needs from compromising fundamental guarantees.

This interpretation by the Court of Cassation aligns with previous consistent rulings (such as No. 44361 of 2024 and No. 15098 of 2025), consolidating a jurisprudential trend that puts a brake on excessively broad interpretations of the written procedure.

Conclusions: A Bulwark for the Right to Defense

Judgment No. 30069/2025 of the Court of Cassation represents an important firm point in balancing procedural efficiency and fundamental guarantees. It strongly emphasizes that procedural innovation can never sacrifice the core of the right to defense and the principle of adversarial proceedings. For legal professionals, this ruling is a reminder of the rigorous observance of procedural forms and respect for the parties' requests. For citizens, it is confirmation that, even in the face of procedures aimed at speed, the right to be heard and fully defended remains an indispensable value of our legal system. A fair trial is not just a fast trial, but a trial that respects all guarantees, as reiterated by the highest Italian Court.