Nullity in criminal proceedings concerns an act performed without complying with a rule that the law protects with a precise consequence: the act may lose its effectiveness and, in some cases, subsequent steps must also be repeated. I explain this topic because a notice received late, an irregular summons, the absence of defense counsel, or a measure lacking an essential requirement can raise very concrete doubts: can the proceeding continue? Must the flaw be raised immediately? Is it enough to indicate it in the appeal?
Not every error makes an act null and void. The distinction is decisive: some nullities can be raised even by the judge, others must be objected to by the party within a precise procedural moment, and still others remain mere irregularities. We will see together how to recognize the categories provided for by the code, which facts change the answer, and why the time in which the issue is raised matters as much as the flaw itself.
When a Defect Becomes a Nullity
Nullity exists only in the cases provided for by law. Article 177 of the code of criminal procedure expresses the principle of taxativity: it is not enough for an act to appear imprecise, unwelcome, or contrary to practice. It is necessary to identify a rule that imposes that form, that notice, that participation, or that content, and that links nullity to its violation. The text of the code, in Articles 177-186, can be consulted in the code of criminal procedure published on Normattiva.
An irregularity may not have invalidating effects. A material error that does not affect the guarantees provided by law, or an imprecision that can be corrected without compromising the understanding of the act, does not automatically produce nullity. The useful question is therefore not only "is there an error?", but "what procedural guarantee has been violated and what penalty does the law establish?"
The function of the rule guides the reading of the flaw. Nullities protect, for example, the correct composition of the judge, the initiative of the public prosecutor, the defendant's right to know about the proceeding and to defend themselves, as well as the prerogatives of the other parties when the law expressly protects them. This is not an abstract distinction: who can object to the defect, until when, and which acts can be involved depend on this.
The Three Categories of Nullity Provided for by the Code
Absolute nullities are the most serious. Article 179 of the code includes, among other things, certain violations concerning the conditions of the judge's capacity and the number of judges in panels, the public prosecutor's initiative in the exercise of criminal action, the omitted summons of the defendant, and the absence of defense counsel when their presence is mandatory. They are incurable and the judge raises them ex officio at every stage and degree of the proceeding.
"At every stage and degree" does not mean beyond the final judgment. The Constitutional Court has clarified that the system of nullities distinguishes between absolute, intermediate regime, and relative nullities, but that the formation of res judicata prevents reopening the issue as a mere procedural nullity. This reference is useful above all to avoid the mistake of postponing a serious challenge trusting that it can be proposed without time limits: decision of the Constitutional Court published in the Official Gazette.
Intermediate regime nullities protect general guarantees, but have an expiration date. Further general nullities provided for by Article 178 and not classified as absolute by Article 179 fall here. Article 180 establishes that they cannot be objected to or declared after the deliberation of the first-instance judgment; if the flaw occurs during the trial, the limit is the deliberation of the judgment of the subsequent degree.
Relative nullities are the residual category. Article 181 concerns defects other than those regulated by Articles 178 and 179. They cannot be freely raised by the judge: they must be objected to by the party who has an interest in asserting them and within the deadlines established for the phase in which the defect occurred. A relative nullity neglected at the scheduled time generally becomes time-barred.
Who Can Object to the Defect and Why the Deadline Is Decisive
The party protected by the violated rule can raise the nullity. Article 182 links the possibility of objecting to the defect to the party's interest. It is not sufficient for a defect to be abstractly present: it is necessary to understand which subject the norm intends to protect. Furthermore, barring absolute nullities, anyone who caused the defect or contributed to determining it cannot avail themselves of it.
Presence at the act requires an immediate reaction, when possible. If the party is present, the nullity of the act must be objected to before the act is performed or, if the defect emerges only during or after performance, immediately afterwards. Waiting for a subsequent hearing or a more favorable moment may mean losing the right to challenge that defect.
Nullities of investigations follow rules different from those of the trial. For acts of preliminary investigations and evidentiary hearings, Article 181 identifies a limit linked to the decision of the preliminary hearing or, if the preliminary hearing is absent, to the phase of preliminary questions before the opening of the trial. Nullities of the decree issuing the trial and of acts preliminary to the trial must also be proposed in that initial passage of the proceeding.
A flaw arising in the trial can accompany the appeal of the judgment. For nullities occurring during the trial, the code allows them to be objected to with the appeal of the relative judgment. This does not transform every defect of an act into an autonomous appeal: first it is necessary to classify the flaw, understand whether it was raised at the correct time, and verify whether the judgment accepted or rejected the issue.
Cure: When the Defect Can No Longer Produce Effects
A nullity can be cured even without an express decision by the judge. Article 183 provides, barring different provisions, that the nullity is cured if the party expressly waives objecting to it, accepts the effects of the act, or uses the prerogative for which the null and void act was prepared. Cure therefore depends on procedural behaviors that show how the guarantee could nonetheless be exercised.
Appearance can cure certain defects of summons or notice. Article 184 regulates in particular the nullity of summonses, notices, and related notifications. If the recipient appears or waives appearance, the defect can be cured within the limits provided for by the rule. However, it is not correct to automatically deduce cure from mere informal knowledge of the hearing: the type of act, the recipient subject, the conduct held, and the concrete applicable discipline matter.
Not every participation equates to acceptance of the flaw. A party may appear precisely to promptly contest the nullity and ask that the missing guarantee be restored. For this reason, the recording of the contestation and the moment in which it is formulated assume practical relevance. The point is not to use solemn formulas, but to make clear which act is contested, which rule is considered violated, and what consequence the judge is asked to consider.
What Happens After the Declaration of Nullity
The declaration does not automatically cancel the entire proceeding. Article 185 establishes that the nullity of an act invalidates subsequent acts that depend on the null and void one. The link of dependence is essential: autonomous acts, i.e., those that can stand even without the flawed act, remain effective. Therefore, the consequence varies greatly between a defective notification and a flaw affecting the initiation or conduct of a decisive phase.
The judge identifies the concrete effects of the flaw. When declaring nullity, the judge indicates which acts retain effectiveness and, if necessary, orders the renewal of the null and void act. Renewal serves to correctly recreate the procedural passage, not to obtain an advantage extraneous to the violated guarantee. If the defect concerns only a separable part of the act, the nullity does not extend to the independent parts.
Nullity does not coincide with the inadmissibility of evidence. These are different institutions. Inadmissibility concerns the evidentiary use of elements acquired in violation of prohibitions established by law, whereas nullity concerns the failure to comply with forms or procedural guarantees sanctioned in that way. Confusing the two categories can lead to formulating a contestation unsuited to the real problem.
How to Orient Yourself Before an Act That Appears Invalid
Keep the act and immediately reconstruct the essential sequence. The date of receipt, the method of notification, the indicated hearing, the presence or absence of defense counsel, and what appears in the record help distinguish a formal error from a relevant flaw. If the issue arises at the hearing, it is important that the contestation is proposed at the scheduled procedural moment and that it remains recorded in the minutes.
The choice is not always between "doing nothing" and asking for the annulment of everything. Depending on the case, it may be necessary to immediately object to a nullity, ask for the renewal of a single act, contest a cure supported by the opposing party, or include the flaw in the grounds for appealing the judgment. The first useful step is to understand whether the defect has harmed a guarantee provided by law and whether the deadline to react is still open.
Frequently Asked Questions
Can I ask for the nullity of an act because it contains an error?
No, not for every error. You must be able to link the defect to a provision that provides for nullity or to one of the general nullities disciplined by the code. A typo, a non-decisive imprecision, or a flaw that does not affect a legally protected guarantee may remain a simple irregularity, without invalidating the act.
Can the judge raise a nullity without anyone asking for it?
Yes, but not for all nullities. Absolute nullities are raised ex officio at every stage and degree of the proceeding until its final definition. Intermediate regime and relative nullities instead follow stricter deductibility limits: the judge cannot substitute a party who has let a deadline provided for by the code expire.
If I attend the hearing, can I still contest the summons?
Yes, but appearing may cure the defect even when your sole purpose is to object. In cases governed by Article 184, a party who states that they have appeared only to report the irregularity is entitled to at least five days to prepare the defence. For a summons to trial, the minimum period is that specified in Article 429. The category of defect and applicable rules must first be identified.
Can I raise the nullity for the first time on appeal?
It depends on when the flaw occurred and its category. Nullities arising in the trial can be objected to with the appeal of the judgment, but many flaws in investigations, the preliminary hearing, or the initial acts of the trial must be proposed earlier. A broader regime applies to absolute nullities, though without exceeding res judicata.
Does the nullity of an act annul all evidence and all subsequent acts?
No, the effect is neither automatic nor total. Nullity extends to subsequent acts that depend on the flawed one; autonomous acts can remain valid. Furthermore, the judge can order the renewal of the null and void act. It is therefore necessary to identify the concrete link between the initial defect and what happened afterwards.
Useful References
The main regulatory reference is Title VII of Book II of the code of criminal procedure, from Articles 177 to 186: taxativity, general nullities, regimes, deadlines, cures, and effects of the declaration of nullity are collected in the text of the code of criminal procedure on Normattiva.
If you have received an act or must face an upcoming hearing, you can contact me bringing the act, proof of notification, and any minutes already formed: the correct temporal placement of the flaw is often an essential part of the answer.