Absence of the Defendant in Criminal Proceedings: The Supreme Court with Ruling 17218/2025 Clarifies the Limits of Nullity

Criminal proceedings are a complex mechanism that balances the need to ascertain the truth with the guarantee of the defendant's fundamental rights. Among these, the right to participate in one's own trial is of paramount importance. But what happens when the defendant is absent and the order formally declaring their absence is omitted? On this delicate issue, the Court of Cassation, with Ruling No. 17218 of 2025, has provided essential clarification, outlining the boundaries of procedural nullity and reaffirming the principles governing participation in the hearing.

The Context of Absence in Criminal Proceedings

Our criminal procedural system provides specific regulations for cases where the defendant does not appear in court. Article 420-bis of the Code of Criminal Procedure, for example, establishes the conditions for proceeding in absentia, ensuring that the defendant's choice not to participate is informed and voluntary, or that their unreachability has been ascertained with due diligence. The declaration of absence, formalized by an order, is not a mere bureaucratic formality but an act that crystallizes a procedural situation with precise consequences on the rights and faculties of the parties. It serves to define the framework within which the proceedings can continue, even in the physical absence of the defendant, ensuring that defence guarantees are preserved, also through the role of the defence counsel.

Ruling 17218/2025: The Maxim and Its Meaning

The ruling of the Court of Cassation, Criminal Section V, presided over by President P. R. and drafted by L. C., addressed the case of proceedings that took place despite the omission of the formal declaration of absence of the defendant S. P.M. The Court of Appeal of Trieste had rejected the defence's request, and the Court of Cassation upheld this orientation. The core of the decision is contained in the following maxim:

The omission of the declaration of absence is not a cause for nullity of the judgment, as it is not provided for as a reason for invalidity by procedural rules, nor does it determine a nullity of a general nature, as it does not cause any prejudice to the defendant's intervention and assistance, to whom the procedural rights connected to the situation of absence belong.

This statement is of fundamental importance. The Court of Cassation clarifies that the mere lack of a formal act, such as the order declaring absence, does not automatically result in the nullity of the judgment. For an act to be null, in fact, nullity must be expressly provided for by law (principle of the exhaustiveness of nullities, art. 177 c.p.p.) or fall within the categories of general nullities (art. 178 c.p.p.), which include defects that prejudice the defendant's intervention, assistance, or representation. In this specific case, the Court held that the omission of the declaration did not cause actual prejudice to the defendant's rights, as the procedural rights connected to their situation of absence remained guaranteed. This means that, although the formal act was missing, the substance of the defence guarantees was not violated.

The Importance of Substance over Formality

The decision of the Supreme Court reiterates a key principle of procedural law: nullity is never an end in itself. The mere violation of a procedural rule is not sufficient to determine the invalidity of an act if such violation has not caused actual prejudice to the rights of the parties. This principle also links to the established orientation of the Constitutional Court, often called upon to balance the need for procedural efficiency with the protection of fundamental rights. In particular, the Court has emphasized that the absent defendant still retains their rights, including:

• The right to be represented by their defence counsel.
• The right to be informed about the progress of the proceedings.
• The possibility to request reinstatement of the deadline to appear, if they demonstrate a legitimate impossibility to participate.
• The right to appeal the judgment.

Article 420-bis c.p.p. was introduced precisely to strengthen the guarantees for the absent defendant. The ruling under comment, while rejecting the request for nullity solely for the omitted declaration, does not diminish the importance of these guarantees but calibrates their application in light of the principle of no prejudice.

Conclusions

Ruling No. 17218 of 2025 by the Court of Cassation offers a valuable compass for navigating the complex issue of the defendant's absence in criminal proceedings. It teaches us that, while the procedural forms must be respected, the substance of rights and guarantees prevails over mere formality. The omitted declaration of absence, if not accompanied by concrete prejudice to the defendant's rights of intervention and assistance, cannot lead to the nullity of the judgment. This orientation aims to prevent procedural abuses and ensure the swift administration of justice, without ever sacrificing the effective protection of the defendant. For legal professionals and citizens alike, understanding these dynamics is crucial for consciously navigating the challenges of criminal proceedings.