Absence of the Defendant in Criminal Proceedings: The Supreme Court with Judgment 17218/2025 Clarifies the Limits of Nullity

Criminal proceedings are a complex mechanism that balances the need to ascertain the truth with the guarantee of the defendant's fundamental rights. Among these, the right to participate in one's own trial is of paramount importance. But what happens when the defendant is absent and the order formally declaring their absence is omitted? On this delicate issue, the Court of Cassation, with Judgment No. 17218 of 2025, has provided essential clarification, outlining the boundaries of procedural nullity and reaffirming the principles governing participation in the hearing.

The Context of Absence in Criminal Proceedings

Our criminal procedure system provides specific regulations for cases where the defendant does not appear in court. Article 420-bis of the Code of Criminal Procedure, for example, establishes the conditions for proceeding in absentia, ensuring that the defendant's choice not to participate is informed and voluntary, or that their unavailability has been ascertained with due diligence. The declaration of absence, formalized by order, is not a mere bureaucratic formality but an act that crystallizes a procedural situation with precise consequences on the rights and faculties of the parties. It serves to define the framework within which the trial can proceed, even in the physical absence of the defendant, ensuring that defense guarantees are preserved in any case, also through the role of the defense counsel.

Judgment 17218/2025: The Maxim and Its Meaning

The ruling of the Court of Cassation, Fifth Criminal Section, in the person of President P. R. and rapporteur L. C., addressed the case of a trial that proceeded despite the omission of the formal declaration of absence of the defendant S. P.M. The Court of Appeal of Trieste had rejected the defense's request, and the Court of Cassation confirmed this orientation. The core of the decision is encapsulated in the following maxim:

The omission of the declaration of absence is not a cause for nullity of the judgment, as it is not provided as a reason for invalidity by procedural rules, nor does it determine a nullity of a general nature, as it does not cause any prejudice to the defendant's intervention and assistance, to whom the procedural rights connected to the situation of absence belong.

This statement is of fundamental importance. The Court of Cassation clarifies that the mere lack of a formal act, such as the order declaring absence, does not automatically translate into a nullity of the judgment. For an act to be null, in fact, the nullity must be expressly provided for by law (principle of the exhaustiveness of nullities, art. 177 c.p.p.) or fall within the categories of general nullities (art. 178 c.p.p.), which include defects that prejudice the defendant's intervention, assistance, or representation. In this specific case, the Court held that the omission of the declaration did not cause actual prejudice to the defendant's rights, as the procedural rights connected to their situation of absence remained guaranteed in any case. This means that, although the formal act was missing, the substance of the defense guarantees was not violated.

The Importance of Substance Over Formalities

The Supreme Court's decision reiterates a key principle of procedural law: nullity is never an end in itself. The mere violation of a procedural rule is not sufficient to determine the invalidity of an act if such violation has not caused actual prejudice to the rights of the parties. This principle also links to the consolidated orientation of the Constitutional Court, often called upon to balance the need for procedural efficiency with the protection of fundamental rights. In particular, the Court has emphasized that the absent defendant still retains their rights, including:

• The right to be represented by their defense counsel.
• The right to be informed about the progress of the proceedings.
• The possibility to request reinstatement in the term to appear, if they demonstrate a legitimate impossibility to participate.
• The right to appeal the judgment.

Article 420-bis of the c.p.p. was introduced precisely to strengthen the guarantees for the absent defendant. The judgment under review, while rejecting the request for nullity solely due to the omitted declaration, does not diminish the importance of these guarantees but calibrates their application in light of the principle of no prejudice.

Conclusions

Judgment No. 17218 of 2025 by the Court of Cassation offers a valuable compass for navigating the complex issue of the defendant's absence in criminal proceedings. It teaches us that, while respecting procedural forms is unavoidable, the substance of rights and guarantees prevails over mere formality. The omitted declaration of absence, if not accompanied by concrete prejudice to the defendant's rights of intervention and assistance, cannot lead to the nullity of the judgment. This orientation aims to prevent procedural abuses and ensure the swiftness of justice, without ever sacrificing the effective protection of the defendant. For legal professionals and citizens alike, understanding these dynamics is crucial for confidently navigating the challenges of criminal proceedings.