Commentary on Judgment No. 34523 of 2023: Right to Defense and Absence of the Defendant

The recent judgment No. 34523 of 2023, issued by the Court of Cassation, addresses a crucial issue in criminal proceedings: the protection of the defendant's right to defense in cases of absence from trial. This decision, which annuls without referral the judgment of the Court of Appeal of Trieste, clarifies some fundamental aspects concerning the defendant's duty of diligence in staying informed and the conditions for proceeding in absence.

Context of the Judgment

The case concerns the defendant S. R., who, at the time of his arrest, had declared a domicile with a court-appointed lawyer. The Court established that the defendant's mere lack of diligence in keeping himself informed about the trial proceedings does not, in itself, constitute a voluntary evasion of knowledge of the trial. This principle is of fundamental importance to ensure respect for the right to defense, as provided for by Article 6 of the European Convention on Human Rights.

Declaration of domicile with the court-appointed lawyer at the time of arrest - Defendant's duty of diligence in staying informed - Non-existence - Consequences - Actual knowledge of the trial - Positive ascertainment - Necessity. In matters of trial in absentia, the defendant's lack of diligence in keeping informed about the trial proceedings against him, after electing domicile with the court-appointed lawyer at the time of arrest, does not automatically constitute "voluntary evasion of knowledge of the trial" and does not establish any - impermissible - presumption of knowledge of the "vocatio in iudicium," which must be ascertained by the judge in a positive manner in order to proceed in absentia, as actual knowledge, without inversion of the relevant burden of proof.

The Importance of the Right to Defense

The right to defense is a fundamental principle of a fair trial, guaranteed by Article 24 of the Italian Constitution and Article 6 of the European Convention. The judgment in question emphasizes that the judge must positively ascertain the defendant's knowledge regarding the trial proceedings. This ascertainment must occur without an automatic presumption of knowledge, thus avoiding a violation of the right to defense.

• The declaration of domicile with the court-appointed lawyer is an act that implies a responsibility of the judicial system to ensure that the defendant is informed.
• The judge cannot presume that the defendant is aware of the trial simply because they have not shown diligence in staying informed.
• It is essential that knowledge of the trial is ascertained positively, to avoid injustices and violations of the defendant's rights.

Conclusions

Judgment No. 34523 of 2023 represents an important step forward in protecting the right to defense of defendants. It clarifies that the responsibility for keeping the defendant informed cannot fall solely on them but must be a shared burden with the judicial system. This principle not only strengthens the protection of individual rights but also contributes to ensuring a fair and just trial, in line with national and international norms.