Judgment No. 18908 of 2023 and the Importance of Notice to Counsel in Recusal Proceedings

The recent judgment No. 18908 of March 2, 2023, published on May 5, 2023, issued by the Court of Cassation, addresses a matter of fundamental importance in criminal proceedings: the notification of notice to the defense counsel of the party seeking recusal. This decision, involving the defendant G. A., underscores the necessity of ensuring the right to defense even in incidental proceedings such as recusal.

The Case and the Court's Decision

In this specific case, the Court annulled the decision of the Court of Appeal of Palermo with referral, highlighting that, in matters of recusal, notice of the hearing in chambers must be served on the defense counsel of the party seeking recusal. This applies even when the recusal request has been filed personally by the defendant. The Court recalled the general principle that the appointment of chosen counsel is valid not only for the main proceedings but also for incidental proceedings arising therefrom, unless there is a contrary expression of will.

Meaning of the Ruling

Hearing in chambers - Notice to the defense counsel appointed in the main proceedings for the party seeking recusal - Necessity - Reasons. In matters of recusal, notice of the hearing in chambers, scheduled pursuant to art. 41, paragraph 3, of the Code of Criminal Procedure, must be served on the defense counsel of the party seeking recusal in the proceedings where the recusal request was filed, even if the latter was made personally by the defendant. This is because, as a general principle, the appointment of chosen counsel is valid not only for the main proceedings but also for incidental proceedings arising therefrom, even if they fall under the jurisdiction of a different judicial office, unless an express contrary intention is evident.

This ruling clarifies that the right to defense is not limited to the main proceedings but extends to all incidental matters, such as recusal. The Court reiterates that counsel must be enabled to participate actively, thereby ensuring a fair trial and the protection of the defendant's rights.

Practical Implications of the Judgment

The Court's decision has several practical implications, including:

• Strengthening the right to defense: Every defendant has the right to be assisted by their counsel in all stages of the proceedings, including recusal.
• Procedural clarity: The requirement to serve notice on the defense counsel of the party seeking recusal reduces the risk of procedural defects that could compromise the entire proceedings.
• Access to justice: This judgment contributes to ensuring that all defendants, even those who choose to file requests personally, can receive adequate legal assistance.

Conclusions

In conclusion, judgment No. 18908 of 2023 represents a significant step forward in protecting the rights of defendants in criminal proceedings. It reaffirms the importance of notifying counsel at every stage of the proceedings, ensuring that the right to defense is always guaranteed. Jurisprudence continues to evolve, but this principle remains fundamental for a fair and just legal system.