Judgment No. 27880 of 2023: Nullity for Failure to Communicate to the Defender in the Paper Proceedings

The judgment no. 27880 of May 16, 2023, filed on June 27 of the same year, provides an important reflection on the emergency regulations adopted during the Covid-19 pandemic and their implications for the right of defense. In particular, the Court of Cassation established that the failure to communicate, electronically, the conclusions of the Attorney General to the defendant's defender results in a general nullity, with significant consequences for the criminal process.

The Context of the Judgment

The judgment is set in a period when criminal proceedings have been adapted to new methods to ensure health safety. Article 23-bis of Decree-Law No. 137 of 2020 establishes that in paper proceedings, such as those held during the pandemic, communication between the parties must occur electronically. The failure to observe this rule, as highlighted in the judgment, can severely undermine the assistance of the defendant.

The General Nullity and Its Consequences

The Court clarified that the violation of the communication norm results in a general nullity of an intermediate regime, which can be raised by the legal representative in the first subsequent act of participation in the proceedings. This means that if the defender does not receive the conclusions of the Attorney General, they cannot properly exercise the right of defense, thereby compromising the fairness of the trial.

  • The nullity is generalized and not limited to specific acts.
  • The defender has the right to raise the nullity even at the conclusion phase.
  • It is essential to ensure communication to preserve the rights of the defendant.
Emergency regulation for the containment of the Covid-19 pandemic - Paper proceedings on appeal - Written conclusions of the Attorney General - Failure to communicate to the defender - General nullity of an intermediate regime - Deductibility - Art. 182, paragraph 2, code of criminal procedure - Applicability - Consequences. In the paper appeal proceedings conducted according to the emergency regulation for the containment of the Covid-19 pandemic, the failure to communicate, electronically, to the defendant's defender the conclusions of the Attorney General, in violation of Article 23-bis of Decree-Law of October 28, 2020, No. 137, converted, with amendments, by Law of December 18, 2020, No. 176, affecting the assistance of the defendant, results in a general nullity of an intermediate regime, which can be raised by the legal representative at the formulation of their conclusions as the first subsequent act of participation in the 'paper' proceedings, pursuant to Article 182, paragraph 2, first clause, code of criminal procedure, so that the exception proposed only with the appeal to the Court of Cassation must be considered late.

Conclusions

In conclusion, judgment no. 27880 of 2023 represents an important reminder of the need to guarantee the right of defense even in emergency contexts. The Court of Cassation, with this ruling, emphasizes that communication between the parties is fundamental for the proper conduct of the criminal trial, and its absence can lead to serious consequences, such as the nullity of acts. It is crucial that legal practitioners pay attention to these provisions so that the principle of due process is always respected.

Bianucci Law Firm