Self-defence and witness lists: the importance of the defence lawyer in Cass. pen. no. 9815/2024

Self-defence in Italian criminal proceedings remains an exception, not the rule. The recent judgment of the Court of Cassation, Section V, no. 9815 of December 10, 2024 (filed March 11, 2025), provides an opportunity to reflect on this delicate issue: the Court annulled without referral the decision of the Court of Appeal of Lecce which had deemed admissible a witness list presented in person by the defendant M. L. T. Let's examine how the Supreme Court justifies its position and what concrete consequences arise for legal practice.

The core of the decision

According to the Court of Cassation, the defendant can only submit a witness list through their defence lawyer. The reason lies in the absence of a legal provision authorising self-defence, within a procedural system that, especially after the 1988 reform, values the technical role of the lawyer. Article 468 of the Code of Criminal Procedure entrusts the defence lawyer with the management of preparatory acts for the trial, while Articles 96 and 97 of the Code of Criminal Procedure reaffirm the centrality of the defence figure.

A witness list presented personally by the defendant is inadmissible because, in the absence of an express legal provision legitimising it, self-defence is not permitted in criminal proceedings. (In its reasoning, the Court highlighted that the defendant is among the parties entitled to submit a witness list only if assisted by a defence lawyer).

In simple terms, the Court removes from the defendant the possibility of carrying out technical procedural acts without the mediation of a lawyer, in order to protect effective defence in compliance with the standards of Article 6 of the ECHR. The defendant does not lose their voice, but must express it through the professional who guarantees its correct translation into legal terms.

Relevant legislation and case law

• Article 24 of the Constitution: inviolable right to defence, exercisable "in every state and degree of the proceedings".
• Article 6 of the ECHR: right to a fair trial and, consequently, to adequate technical defence.
• Article 468, paragraph 1, of the Code of Criminal Procedure: filing of the list of evidence by the defence lawyer.
• Articles 96-97 of the Code of Criminal Procedure: mandatory technical defence with the option to appoint a lawyer and, in default, a court-appointed lawyer.

Today's decision follows a consolidated line: Cass. 49551/2016 and 31560/2019, cited in the reasoning, had already established the inadmissibility of self-defence acts lacking legal assistance. In the same vein is ruling 7786/2008 concerning the request for reopening the investigation presented by the defendant.

Practical implications for lawyers and defendants

For the legal professional, the judgment is a further warning about the need to:

• Promptly monitor deadlines for filing evidence.
• Inform the defendant about the limits of self-defence, avoiding potentially void personal initiatives.
• Prepare a complete investigative strategy, integrating testimonies, documents, and technical consultations.

For the defendant, however, the message is clear: the presence of a defence lawyer is not a mere formality but a guarantee. Certifying witnesses without assistance can lead to the loss of crucial evidence, with irreversible effects on the outcome of the trial.

Conclusions

With judgment no. 9815/2024, the Court of Cassation reaffirms the pillar of technical defence in criminal proceedings. Self-defence remains confined to rare borderline cases (e.g., in proceedings before the Justice of the Peace pursuant to Article 28 of Legislative Decree 274/2000), but does not extend to the trial phase before the court. Lawyers and defendants must therefore cooperate more than ever: the former by ensuring competence and timeliness, the latter by relying on professional guidance to avoid compromising their procedural position.