Commentary on Judgment No. 22719/2023: Nullity in Enforcement Proceedings

Judgment No. 22719 of March 8, 2023, filed on May 25, 2023, offers significant insights into the dynamics of criminal enforcement proceedings and the centrality of the adversarial principle. Issued by the Court of Cassation, the decision annulled a decree by the Court of Genoa with referral, highlighting a crucial violation of Article 666, paragraph 2, of the Code of Criminal Procedure.

The Case and the Regulatory Violation

In this case, the Enforcement Judge had declared the request inadmissible without obtaining the opinion of the public prosecutor. The Court emphasized that the failure to obtain such an opinion, when proceeding "de plano," results in a nullity that can be raised by both the public prosecutor and the private party. This means that the convicted person also has the right to challenge a decree that does not respect procedural guarantees.

Decree of inadmissibility of the request - Violation of Article 666, paragraph 2, of the Code of Criminal Procedure for failure to obtain the opinion of the public prosecutor - Nullity - Existence - Raisable also at the initiative of the private party - Reasons. In matters of enforcement proceedings, the failure to obtain the opinion of the public prosecutor in the case of a declaration of inadmissibility of the request adopted "de plano," pursuant to Article 666, paragraph 2, of the Code of Criminal Procedure, gives rise to a nullity that can be raised at the initiative of both the public prosecutor and the private party. (In its reasoning, the Court clarified that the acquisition of the opinion of the prosecuting authority is also provided for in the interest of the convicted person, who is therefore entitled to complain about the adoption of the decree issued in the absence of the establishment of adversarial proceedings).

Implications for the Rights of the Convicted Person

The Court, in its reasoning, clarified that obtaining the public prosecutor's opinion is not merely a bureaucratic formality but an essential step to guarantee the convicted person's right to defense. This is fundamental, as the adversarial principle is a cornerstone of a fair trial, enshrined in Article 111 of the Italian Constitution and the European Convention on Human Rights (Article 6).

• The convicted person has the right to be heard.
• The omission of this step results in the nullity of the decree.
• Both the public prosecutor and the private party can challenge such an omission.

Conclusions

Judgment No. 22719/2023 represents an important precedent for jurisprudence on criminal enforcement. It reaffirms the necessity of respecting procedural guarantees in enforcement proceedings, emphasizing that the lack of adversarial proceedings can infringe upon the fundamental rights of the individual. This reiterates the importance of a justice system that not only punishes but also respects and guarantees the rights of all parties involved.