Amendment of Indictment and Absent Defendant: The Court of Cassation Establishes Uncurable Nullity (Judgment no. 30187/2025)

In the complex landscape of criminal proceedings, the protection of the defendant's rights is paramount, especially in their absence. The Court of Cassation, with its recent judgment no. 30187 of 2025, has provided crucial clarification on the consequences of an amendment to the indictment that was not properly communicated to an absent defendant. This ruling, which annulled without referral the judgment of the Court of Appeal of Cagliari of 04/04/2024 (case F. J. B.), reaffirms the centrality of procedural guarantees and the gravity of nullities in criminal matters.

The Right to Knowledge of the Charge: A Pillar of Due Process

The judgment in question focuses on the amendment of the indictment that occurred during the hearing. Article 520 of the Code of Criminal Procedure (in its wording prior to the Cartabia Reform, Legislative Decree 150/2022) requires that an absent defendant be informed of significant changes to the charge, a crucial right for preparing an effective defense. In this case, the amendment occurred in the absence of F. J. B., and the notification of the extract of the trial record was omitted due to the waiver of the chosen defense counsel. The Court of Cassation assessed whether such waiver could cure the omission of notification to the defendant.

In the context of new charges, an amendment to the indictment made during the hearing, not accompanied by the notification of the extract of the trial record to the absent defendant pursuant to Article 520 of the Code of Criminal Procedure, in the wording prior to Legislative Decree of October 10, 2022, no. 150, based on the express waiver in the same hearing by the domiciled chosen defense counsel, gives rise to an uncurable nullity of the subsequent judgment due to violation of the defendant's personal defense prerogatives.

This maxim clarifies that the defense counsel's waiver does not override the defendant's "personal defense prerogatives." Notification of the record is essential to ensure actual knowledge of the charge and to allow the defendant to adapt their defense. These rights, being strictly personal, are not delegable or waivable by the defense counsel without explicit mandate. The omission constitutes an "uncurable nullity," leading to the annulment of the judgment.

Personal Rights vs. Technical Defense: The Consequences of Violation

The decision of the Supreme Court (President G. De Amicis, Rapporteur B. Paternò Raddusa) highlights the distinction between technical defense and personal defense rights. Certain rights are intrinsically linked to the defendant and require their direct knowledge or ability to react, such as amendments to the indictment. The Court of Cassation referred to established precedents (judgments no. 46342/2016 and United Sections no. 36551/2010) on the necessity of actual knowledge of the charge.

• Knowledge of the charge: A fundamental right.
• Personal prerogatives: Rights not delegable without specific consent.
• Absolute nullity: Omission of essential acts results in nullity under Article 179 of the Code of Criminal Procedure, uncurable and leading to the annulment of the judgment.

Conclusions

Judgment no. 30187 of 2025 is a firm stance in the protection of defense rights in criminal proceedings. It reiterates that knowledge of the charge and its amendments is a personal right of the absent defendant, not subject to derogation by the defense counsel's waiver alone. This ruling mandates legal professionals to rigorously observe procedural formalities, which are indispensable guarantees for a fair trial. For a Law Firm, this means scrupulous attention to procedures, especially when dealing with absent defendants, to ensure the integrity of the judgment.