Commentary on Judgment No. 16140 of 2022: The Appointment of Counsel for Fugitive Defendants

Judgment No. 16140 of December 22, 2022, filed on April 17, 2023, offers important clarifications on the faculty to appoint counsel on behalf of a fugitive defendant. In particular, the Court held that, pursuant to Article 96, paragraph 3, of the Code of Criminal Procedure, this faculty is exclusively limited to cases where the defendant is in a state of detention, thus excluding fugitives. This decision has raised questions and prompted reflection on the effective balance between the right to defense and public order requirements.

The Regulatory Context and the Court's Decision

The provision in question, Article 96, paragraph 3, of the Code of Criminal Procedure, stipulates that close relatives may appoint counsel for the defendant, but only in situations of personal liberty restriction. The Court emphasized the exceptional nature of this provision, which is intended to guarantee the right to defense in difficult circumstances, such as detention. The Court therefore deemed that an extensive interpretation of the provision, applicable also to fugitives, is not justifiable.

Faculty of appointment by a close relative on behalf of a fugitive defendant - Exclusion - Reasons - Factual situation. The faculty of close relatives to appoint, pursuant to Article 96, paragraph 3, of the Code of Criminal Procedure, counsel in the interest of the defendant exclusively concerns persons "in vinculis" and not fugitives, as this provision has an exceptional nature, being strictly linked to the difficulty of personally arranging for the designation of counsel by the person subjected to the condition of personal liberty restriction and being, therefore, insusceptible to analogical interpretation. (In application of this principle, the Court deemed the decision by which the inadmissibility of the request for revocation of the declaration of fugitive status, submitted by counsel appointed by the defendant's close relatives, was deemed to be free from censure).

Implications of the Judgment

This judgment has several significant implications:

• It reinforces the importance of adhering to procedural rules in guaranteeing the right to defense.
• It excludes the possibility of appointing counsel for fugitive defendants, increasing the pressure on such individuals to face proceedings.
• It establishes a jurisprudential precedent that limits the analogical application of provisions in favor of defendants who are fugitives.

In this manner, the Court reiterated the principle that the protection of defendants' rights must occur within the framework of current legislation, avoiding interpretations that could undermine legal certainty.

Conclusions

Judgment No. 16140 of 2022 represents an important step in defining the limits of the faculty to appoint counsel, highlighting the distinction between situations of detention and fugitive status. This decision not only clarifies current provisions but also invites reflection on access to justice and the protection of defendants' rights. It is essential for legal practitioners to take note of these indications to ensure adequate defense in compliance with legislative mandates.