Criminal Cassation, judgment no. 11582/2025: nullity for failure to communicate the Public Prosecutor's conclusions in summary appeal proceedings

With ruling no. 11582 of January 29, 2025 (filed March 21, 2025), the Fifth Criminal Section of the Court of Cassation once again addressed the procedural effects of the "summary" appeal discipline introduced during the Covid-19 emergency. The case concerns the failure to transmit, electronically, the conclusions of the Public Prosecutor (PG) to the defendant's lawyer in the appeal heard pursuant to art. 23-bis of Decree-Law 137/2020, converted into Law 176/2020. The Court annulled the decision of the Court of Appeal of Bologna and remanded, finding that a general nullity of intermediate regime had been established.

The normative framework: from the pandemic emergency to the Cartabia reform

To reduce physical presence in hearings during the pandemic, the legislator provided that appeals could be held "in chambers without the participation of the parties," after the filing of written conclusions. However, art. 23-bis of Decree-Law 137/2020 requires the PG to send its requests to the defense lawyers: a crucial step to ensure the adversarial principle, protected by arts. 178, 180, and 182, paragraph 2, of the Code of Criminal Procedure.

• art. 178 Code of Criminal Procedure – general nullity for violation of the right to defense;
• art. 23-bis of Decree-Law 137/2020 – special discipline for summary appeals;
• art. 94, paragraph 2, Legislative Decree 150/2022 – post-Cartabia reorganization of the matter.

The Cassation's decision and its key points

In summary appeal proceedings held under the emergency regulations for the containment of the Covid-19 pandemic, the failure to communicate, electronically, the Public Prosecutor's conclusions to the defendant's lawyer results in a general nullity of intermediate regime, which can be raised in a cassation appeal even by the defense lawyer who has filed written conclusions in such proceedings without raising any objection.

The Court clarifies that:

• the omission constitutes an intermediate nullity (art. 178, letter c, Code of Criminal Procedure), not a mere irregularity;
• it can be raised in a cassation appeal, even if the defense lawyer participated by filing briefs: the violation is not cured by acquiescence;
• the burden of allegation remains, but proof of the omission is easy, as it concerns an electronic act.

The ruling follows the consistent decisions no. 47308/2023 and 21050/2024, distancing itself from dissenting opinions (e.g., no. 10864/2024) that had excluded nullity in the presence of defense conclusions.

Practical consequences for lawyers and defendants

The principle affirmed makes it essential to verify, in every summary appeal proceeding, the receipt of the PG's conclusions. Otherwise, the defense lawyer may:

• timely raise an objection in the appeal court;
• alternatively, file a cassation appeal asserting the nullity.

The discipline remains relevant even after the Cartabia reform: chambers with written proceedings survive for certain appeals, and the principle of "remote" adversarial proceedings continues to require the transmission of the Public Prosecutor's documents.

Conclusions

Judgment no. 11582/2025 strengthens the protection of the right to defense in the era of electronic criminal proceedings. The adversarial principle cannot be sacrificed on the altar of efficiency: if the PG does not send its conclusions, the appeal judgment is flawed and deserves to be redone. A ruling that reminds judges and lawyers of the importance of procedural diligence, even (and especially) when the hearing takes place only via screen.