Cassation No. 10459/2025: Right to Adversarial Proceedings and Request for Oral Hearing in Criminal Appeals during the Pandemic

The management of justice during the health emergency introduced special regulations that modified procedural practices. In this context, the Court of Cassation, with ruling no. 10459 of January 21, 2025 (filed on March 17, 2025), provided a fundamental clarification regarding the deadlines for requesting an oral hearing in criminal appeal proceedings, emphasizing the protection of the right to adversarial proceedings. A ruling of great importance for lawyers, defendants, and the principles of a fair trial.

Emergency Regulations and Adjournment by the Court

Article 23-bis of Law Decree no. 137 of October 28, 2020, regulated the conduct of criminal hearings, often providing for a non-participatory chamber proceeding, unless requested by the parties. The case in question concerned the defendant A. B., whose appeal hearing, initially scheduled in chambers, had been adjourned by the Court of Appeal of Florence for "organizational needs." The defense had subsequently submitted a request for an oral hearing in relation to the new date. The question was whether this request was late, as the deadlines should be calculated from the original date or the adjourned date.

The Cassation's Ruling: Protection of Adversarial Proceedings

The Supreme Court, Fourth Criminal Section (President F. M. C., Rapporteur V. P.), annulled without referral the judgment of the Court of Appeal of Florence of June 20, 2024, affirming a crucial principle:

In appeal proceedings conducted in accordance with the pandemic emergency regulations, an adjournment by the court to a fixed date for organizational reasons, without any procedural activity taking place at the first hearing, which was scheduled in chambers due to the lack of a request for oral discussion, does not render the request for an oral hearing, submitted by the party within the deadlines set by art. 23-bis, paragraph 4, of law decree of October 28, 2020, no. 137, converted, with amendments, by law of December 18, 2020, no. 176, to be late. Such deadlines are to be calculated with regard to the adjourned date and not the date originally set for the hearing, thus the conduct of the proceedings with a non-participatory chamber proceeding constitutes a general nullity of intermediate regime for violation of adversarial proceedings, which can be raised in a cassation appeal.

In practice, the Cassation has established that if an appeal hearing, initially in chambers, is adjourned by the court without procedural activity, the request for oral discussion is not late if submitted within 15 days of the new adjourned date. This strengthens the right to adversarial proceedings (Art. 111 of the Constitution, Art. 6 of the ECHR), the violation of which, in the case of a non-participatory chamber proceeding despite a timely request, results in a general nullity of intermediate regime, which can be raised in a cassation appeal.

Implications and Conclusions

This ruling clarifies an interpretative uncertainty regarding deadlines, reinforcing the centrality of the right to adversarial proceedings even in emergency contexts. The Cassation reaffirms that an adjournment by the court cannot preclude the exercise of the right to an oral hearing, if the request is timely with respect to the new date. It serves as a warning to ensure the correct application of the rules and the full observance of adversarial proceedings, the foundation of any democratic judicial system.