Judgment No. 37438 of 2023: Withdrawal from Defense Mandate and its Legal Consequences
The recent judgment No. 37438 of May 25, 2023, published on September 13, 2023, offers an important reflection on the dynamics of withdrawal from a defense mandate in criminal proceedings. The Court of Cassation has established that, in the event of withdrawal by the chosen defense counsel, the judge is obliged to appoint a court-appointed defense counsel to the defendant, under penalty of nullity of the proceedings. This principle is based on the protection of the right to defense, which must be guaranteed at every stage of the proceedings.
Obligation to Appoint a Court-Appointed Defense Counsel
According to the ruling's maxim, "Withdrawal from the defense mandate - Appointment of a court-appointed defense counsel - Omission - Consequences - Nullity - Equivalence of designating an immediately available defense counsel in court pursuant to art. 97, paragraph 4, Code of Criminal Procedure - Exclusion - Reasons," the defense counsel's withdrawal cannot be considered a mere formality. In fact, it entails the obligation for the judge to promptly appoint a court-appointed defense counsel so that the defendant is not left without legal assistance. The absence of a chosen defense counsel, without adequate intervention by the judge, could drastically compromise the defendant's right to defense.
Distinction Between Court-Appointed Defense Counsel and Temporary Defense Counsel
A crucial point of the judgment concerns the distinction between the appointment of a court-appointed defense counsel and that of a temporary defense counsel, made available in court. The Court has clarified that the designation of a temporary defense counsel, pursuant to art. 97, paragraph 4, of the Code of Criminal Procedure, cannot be considered equivalent to a permanent appointment. This distinction is fundamental to ensuring the effectiveness of the right to defense, which cannot be limited to an episodic and temporary solution.
- The withdrawal of the chosen defense counsel must lead to the immediate appointment of a court-appointed defense counsel.
- The appointment of a temporary defense counsel does not satisfy the requirement of continuity in defense.
- The right to defense must be protected effectively and not episodically.
Conclusions
Judgment No. 37438 of 2023 represents a significant step in guaranteeing the right to defense in criminal proceedings. It emphasizes that withdrawal from a defense mandate cannot be treated lightly but requires an immediate reaction from the judge. The appointment of a court-appointed defense counsel is essential to ensure that the defendant can exercise their rights adequately and continuously. Therefore, the Court of Cassation has confirmed the centrality of the right to defense as a fundamental pillar of the Italian legal system.
