Criminal Cassation No. 16411/2025: Omitted Notice to Retained Counsel and Absolute Nullity in "Paper" Appeal Proceedings

The Fifth Criminal Section of the Court of Cassation, with ruling No. 16411 filed on April 30, 2025, revisits the issue – already the subject of conflicting precedents – of the validity of appeal proceedings conducted under the emergency rules introduced for the pandemic. Specifically, the Supreme Court annulled a decision by the Court of Appeal of Bologna with referral due to the omitted notice to the defendant's retained counsel regarding the oral hearing requested by the civil party. This ruling is destined to impact legal practice, drawing professionals' attention to the absolute nature of such nullity.

Reference Legal Framework

During the health emergency, the legislator provided for forms of "paper proceedings" (Article 23-bis of Decree-Law 137/2020, followed by subsequent regulations up to Decree-Law 215/2023) in which the discussion could take place without the physical presence of the parties, unless an oral hearing was requested. However, the Code of Criminal Procedure remained firm on certain indispensable safeguards:

• Article 178, paragraph 1, letter c) of the Code of Criminal Procedure: nullity for failure to summon, presence, or assistance of the defendant or counsel;
• Article 179, paragraph 1 of the Code of Criminal Procedure: absolute, non-curable nullity that can be raised ex officio at any stage and level of the proceedings;
• Article 97, paragraph 4 of the Code of Criminal Procedure: the right of counsel to be substituted by another lawyer through written delegation.

The Court of Cassation therefore had to balance the need for speed with the right to defense, also enshrined in Article 6 of the ECHR.

The Ruling of Sentence No. 16411/2025

In the context of paper appeal proceedings conducted under the emergency pandemic regulations, the omitted notice to the defendant's retained counsel of the oral hearing of the case, ordered at the request of another party, constitutes an absolute nullity, pursuant to Articles 178, paragraph 1, letter c), and 179, paragraph 1, of the Code of Criminal Procedure. This procedure requires the mandatory presence of the aforementioned counsel, and the participation in the hearing of a substitute appointed under Article 97, paragraph 4, of the Code of Criminal Procedure is irrelevant.

The Court reiterates that notice to retained counsel is an indispensable element for the proper establishment of the adversarial principle. Otherwise, the proceedings are vitiated by absolute nullity, which – according to Article 179 of the Code of Criminal Procedure – is incurable and must be declared even ex officio. Consequently, the presence of a substitute under Article 97, paragraph 4, is irrelevant if there has been no prior notification to the holder of the defense mandate. This principle is in line with the consistent rulings of Cass. 29349/2023 and 11170/2024, but departs from the differing rulings of 7750/2022 and 3673/2022, thus resolving the jurisprudential conflict.

Practical Implications for Defense

For defense lawyers and parties to proceedings, the ruling entails some operational adjustments:

• Always verify the correct notification of notices, especially if an oral hearing has been requested by other parties (public prosecutor or civil party);
• Promptly raise the nullity when the notice is missing or irregular, remembering that absolute nullity can be asserted at any stage and level of the proceedings;
• Assess the need to file a special power of attorney for substitution only after receiving formal communication, avoiding "blind" delegations that could be deemed ineffective;
• Monitor post-emergency regulatory developments: Legislative Decree 150/2022 (Cartabia reform) and subsequent interventions have redefined in-person hearings, but the principles of the ruling remain applicable to any situation where the law requires mandatory notice.

A Systemic Reading

The reasoning of the Court of Cassation is based on two pillars: the constitutional right to defense (Article 24 of the Constitution) and the European Convention (Article 6 ECHR). The Supreme Court also shows continuity with the decision of the United Sections 24630/2015, where it had already been established that the omitted notice to retained counsel constitutes an absolute nullity, distinguishing the role of the procedural substitute. It is interesting to note how the court of legitimacy uses the criterion of "mandatory presence" as a litmus test: where the procedure requires the necessary intervention of counsel, any omission sends the proceedings down the dead end of invalidity.

Conclusions

Ruling No. 16411/2025 represents a firm point for post-pandemic appellate jurisdiction: emergency derogations cannot infringe upon the fundamental guarantees of the defendant. Notice to retained counsel is not a mere formal requirement but a substantive prerequisite for a fair trial. Legal professionals must pay the utmost attention to notifications, aware that the Court of Cassation will not tolerate shortcuts: without timely information to the retained counsel, the entire proceeding will be overturned by absolute nullity, with inevitable repercussions in terms of procedural time and costs.