Judgment No. 38442 of 2023: Appeals and Rights of Detained Defendants

The recent judgment No. 38442 of September 13, 2023, filed on September 20, 2023, issued by the Court of Cassation, has raised important issues regarding the appeal procedure for detained defendants. In particular, the Court addressed the issue of notification of the summons decree, establishing that new regulatory provisions do not apply to defendants in a state of detention.

Regulatory Context

The central issue concerns Article 581, paragraph 1-ter, of the Code of Criminal Procedure, introduced by Legislative Decree No. 150 of 2022. This rule establishes the obligation for the defendant to file, together with the appeal document, a declaration or election of domicile for the notification of the summons decree. However, the Court has excluded the applicability of this provision for detained defendants, highlighting that notification must be made in person.

Detained defendant at the time of filing the appeal - Formal requirement provided by the amended art. 581, paragraph 1-ter, Code of Criminal Procedure for the notification of the summons decree - Applicability – Exclusion - Reasons. In matters of appeals, if the defendant is detained at the time of filing the appeal, the provision of art. 581, paragraph 1-ter, Code of Criminal Procedure, amended by art. 33, paragraph 1, letter d), of Legislative Decree of October 10, 2022, n. 150, which requires, under penalty of inadmissibility, the filing, together with the appeal document, of the declaration or election of domicile of the private party, for the purpose of notifying the summons decree to trial, does not apply to them, given that such fulfillment would be ineffective due to the validity of the obligation to proceed with personal notification to the detained defendant and would entail a violation of the right to effective access to justice enshrined in art. 6 ECHR.

Rights of the Defendant and Access to Justice

The Court emphasized the importance of guaranteeing effective access to justice, referring to Article 6 of the European Convention on Human Rights (ECHR). This principle is fundamental, as it protects the rights of defendants, particularly those in detention, who may face further difficulties in actively participating in the proceedings. The judgment, therefore, represents a significant step in protecting the rights of detainees, preventing formal requirements from compromising their ability to defend themselves.

Conclusions

In conclusion, judgment No. 38442 of 2023 by the Court of Cassation highlights an important evolution in jurisprudence concerning appeals by detained defendants. The decision to exclude the applicability of art. 581, paragraph 1-ter, for these individuals is a clear signal of the will to protect the right to access justice and to ensure that legal procedures do not become an obstacle for those in a vulnerable situation. It is essential that these principles are increasingly respected, so that the legal system is fair and just for all.