Judgment No. 25365 of 2023: Nullity and the Right to Defense in Times of Pandemic

The judgment no. 25365 of February 16, 2023, filed on June 13, 2023, offers an important reflection on the ways of exercising the right to defense in an emergency context, such as that created by the Covid-19 pandemic. In particular, the Court addressed the issue of the failure to evaluate the written conclusions submitted by the defense via certified email, establishing precise conditions regarding the nullity of such acts.

The Context of the Judgment

The decision of the Court of Cassation falls within the emergency regulations adopted to address the health emergency. This period has seen the implementation of digital tools to ensure the right to defense and the continuity of proceedings. However, the use of certified email has raised questions about the form and content of communications between the parties.

Emergency regulations for containing the Covid-19 pandemic - Transmission via certified email of written conclusions by the defense - Failure to evaluate in the judgment - General intermediate nullity - Exclusion - Conditions. In the context of emergency regulations for containing the Covid-19 pandemic, the failure to evaluate, in the judgment, the conclusions sent by the defense via certified email is a cause of general intermediate nullity, pursuant to Article 178, paragraph 1, lett. c), of the Code of Criminal Procedure, provided that the act, regardless of the qualification given by the party, has an actual argumentative content and constitutes a concrete exercise of the right to defense, as only in this case does a violation of the defendant's right to intervene occur.

The Implications of the Judgment

The Court clarified that intermediate nullity occurs only if the conclusions sent by the defense have significant argumentative content. This aspect highlights the importance of not limiting oneself to a mere formality, but ensuring that every defensive act represents a true exercise of the right to defense. This is particularly relevant in a context where the digitalization of communications could lead to an excessive simplification of procedures.

Conclusions

Judgment No. 25365 of 2023 represents a milestone in Italian jurisprudence regarding criminal law. It reaffirms the centrality of the right to defense, even in emergency situations, and establishes that every defensive communication must be evaluated with care. It is essential that legal professionals are aware of these regulatory and jurisprudential developments to ensure the correct protection of their clients' rights.

Bianucci Law Firm