Commentary on Judgment No. 28912 of 2024: Inadmissibility and Domicile in Cassation Appeals

The recent judgment No. 28912, issued by the Court of Cassation on May 7, 2024, offers food for thought on a crucial issue in criminal law: the admissibility of a cassation appeal concerning inadmissibility orders issued by the appellate judge. In particular, the Court reiterated the importance of the defendant's declaration or election of domicile, highlighting how its absence can prejudice the possibility of appealing the order.

Context of the Judgment

The case in question concerns M. A., whose appeal was declared inadmissible due to the lack of a domicile declaration. The Court of Appeal of Bologna, by order of September 18, 2023, declared it inadmissible "de plano," a decision that subsequently led to a cassation appeal request by the defendant's court-appointed counsel. This is where Article 581, paragraph 1-quater, of the Code of Criminal Procedure comes into play, which also applies to inadmissibility orders, not just judgments.

Analysis of the Headnote

ADMISSIBILITY AND INADMISSIBILITY - Art. 581, paragraph 1-quater, Code of Criminal Procedure - Applicability to cassation appeals against an inadmissibility order issued "de plano" by the appellate judge due to the absence of a declaration or election of domicile - Existence. In terms of appeals, Art. 581, paragraph 1-quater, Code of Criminal Procedure also applies when the court-appointed counsel of a defendant tried in absentia appeals to the Court of Cassation against an order declaring the appeal inadmissible "de plano" due to the failure to attach the defendant's declaration or election of domicile. (In the reasoning, the Court deemed it irrelevant that Art. 581, paragraph 1-quater, Code of Criminal Procedure exclusively refers to appeals against judgments, as the order in question, issued pursuant to Art. 591, paragraph 2, Code of Criminal Procedure, like judgments, has a definitive character in the cognitive judgment).

This headnote emphasizes the importance of correct procedure in filing an appeal, highlighting that the absence of a domicile declaration is not merely a formality but an essential requirement for the legitimacy of the appeal itself. The Court thus clarified that the lack of such a document cannot be considered irrelevant, stressing the need to comply with procedural rules.

Implications of the Judgment

The decision of the Court of Cassation has several practical implications:

• It reinforces the importance of the domicile declaration in the appeal process, making it an indispensable requirement.
• It clarifies the role of the court-appointed counsel, who must ensure compliance with procedures even in the absence of the defendant.
• It reiterates that an inadmissibility order carries the same legal weight as a judgment and therefore deserves adequate consideration in appeals.

These considerations are fundamental for lawyers and industry professionals, as they highlight the need for careful preparation and verification of documentation before proceeding with an appeal.

Conclusions

In conclusion, judgment No. 28912 of 2024 represents an important reference point for jurisprudence on appeals in criminal law. The Court of Cassation has clarified that the lack of a domicile declaration can compromise the defendant's right to appeal the decisions of the appellate judge. This strengthens the importance of a well-structured defense and adequate preparation by legal counsel, thus underscoring the value of procedural rules in ensuring a fair trial.