Notification to the Absent Defendant: Absolute Nullity and Right to Defence in Cassation Ruling 19043/2025

In the complex landscape of criminal law, the principle of a fair trial and the right to defence are of paramount importance. One of the most delicate situations, susceptible to violations, is the so-called "trial in absentia", meaning a trial that proceeds without the defendant's presence. In this context, the Court of Cassation, with Ruling No. 19043 of 21/05/2025, has provided a fundamental clarification regarding the nullity of the notification of the summons to trial when the defendant is erroneously declared absent and assisted by a court-appointed lawyer. This ruling reiterates the centrality of the accused's actual knowledge of the proceedings as an indispensable safeguard for the protection of their rights.

Trial in Absentia and Declaration of Absence: A Delicate Balance

The Code of Criminal Procedure (CPP) provides that a trial can proceed even in the absence of the defendant, provided that their knowledge of the proceedings or their voluntary evasion of them has been ascertained. The institution of absence, governed by Article 296 of the CPP, occurs when the defendant voluntarily evades pre-trial detention, house arrest, or a security measure. The declaration of absence has significant consequences, including the possibility of notifying documents to the court-appointed lawyer. However, this procedure, if not applied rigorously, can easily infringe upon the right to defence. The crucial issue, as highlighted by consistent case law and now reiterated by Ruling 19043/2025, is the ascertainment of the defendant's actual intention to evade the trial and, above all, their knowledge of the existence of proceedings against them.

The Ruling of Cassation Ruling 19043/2025: A Beacon on Absolute Nullity

The Court of Cassation, with Ruling No. 19043/2025, has crystallised a principle of law of fundamental importance, which follows the path of established case law aimed at ensuring the full exercise of the right to defence. The ruling's core principle states:

In matters of trial in absentia, the notification of the summons to trial to a defendant erroneously declared absent and assisted by a court-appointed lawyer is affected by absolute nullity, which can be raised at any stage and level of the proceedings, if the actual establishment of a professional relationship between them has not been ascertained, nor are there other elements indicating that the former had actual knowledge of the proceedings.

This pronouncement is groundbreaking in its clarity. The Cassation Court, presided over by Dr. S. Dovere and with Dr. E. Serrao as rapporteur, quashed without referral the judgment of the Court of Appeal of Lecce of 16/02/2024, in the case involving defendant M. I. The decision is based on an unavoidable premise: notification to the court-appointed lawyer, in the presence of an erroneous declaration of absence, is valid only if there is proof that the defendant had actual knowledge of the proceedings. The absence of a professional relationship between the court-appointed lawyer and the defendant, coupled with the lack of other elements attesting to knowledge of the trial, renders the notification ineffective and vitiated by absolute nullity. This means that such a defect can be raised at any stage and level of the trial, with the consequence that the entire trial could be declared null.

Practical Implications and Legal References

Ruling 19043/2025 aligns with the orientation of the Constitutional Court and the Court of Cassation, which have long emphasised the importance of scientia criminis (knowledge of the charge) and vocatio in ius (summons to court) for the regularity of proceedings. Among the legislative references cited by the ruling, the most prominent are Article 420-bis of the CPP, which governs trial in absentia and its conditions, and Article 179 of the CPP, which lists cases of absolute nullity and their serious procedural consequences. Absolute nullity is the most severe defect that can invalidate a procedural act, as it is incurable and can be raised ex officio at any stage and level of the proceedings, even before the Court of Cassation. The Supreme Court's decision is based on a fundamental principle:

• **Protection of the Right to Defence:** Ensuring that the defendant is fully aware of the charges and has the opportunity to defend themselves is a cornerstone of our legal system, also recognised by Article 24 of the Constitution and Article 6 of the European Convention on Human Rights (ECHR).
• **Burden of Proof:** It is incumbent upon the prosecution to prove that the defendant, despite being declared absent, had actual knowledge of the proceedings. Mere notification to the court-appointed lawyer is insufficient if not supported by other evidence.
• **Conditions for Nullity:** Nullity arises when there is an erroneous declaration of absence, notification to the court-appointed lawyer, and the absence of an actual professional relationship or other elements attesting to the defendant's knowledge of the proceedings.

This ruling, which refers to important precedents such as No. 22752 of 2021 and No. 23948 of 2020 by the United Sections, underscores the need for careful verification of the conditions that legitimise trial in absentia, to prevent justice from becoming a mere formality devoid of substantive guarantees.

Conclusions: A Call for Caution and Guarantee

Ruling No. 19043/2025 of the Court of Cassation represents a significant warning to all legal professionals. It reinforces the need for scrupulous adherence to notification procedures and careful assessment of the defendant's status, particularly when proceedings are conducted in their absence. The guarantee of a fair trial, based on the accused's full knowledge of the facts, cannot be sacrificed on the altar of speed or presumptions unsupported by concrete evidence. For the defendant M. I., as for all those who may find themselves in similar situations, this ruling is a victory for the right to defence and substantive legality, reaffirming that a criminal trial, to be fair, must always ensure that individuals have the opportunity to assert their rights, even when they appear to be unreachable.