Judgment No. 24657 of 2023: Nullity of the Hearing for Violation of the Right to Defense

The judgment no. 24657 of April 21, 2023, filed on June 8, 2023, by the Court of Cassation, falls within a particularly delicate legal context, that of the emergency regulations adopted to address the Covid-19 pandemic. In this specific case, the Court declared the absolute nullity of a criminal hearing following the absence of the trusted defense attorney, who could not attend due to the lack of an authorized remote connection.

The Context of the Judgment

The decision is based on Article 23, paragraph 5, of Decree-Law No. 137 of 2020, which provides for the possibility of remote participation by lawyers, ensuring the right to defense during a period when health measures limited gatherings. The Court emphasized that the failure to provide the remote connection violated the defendant's right to defense, recognizing its fundamental importance in the criminal process.

Emergency regulations for containing the Covid-19 pandemic - Failure to provide the authorized remote connection to allow the trusted defense attorney who requested it pursuant to Article 23, paragraph 5, of Decree-Law No. 137 of 2020 to participate "remotely" - Violation of the right to defense - Existence - Absolute nullity - Configurability - Reasons. Regarding the emergency regulations for containing the Covid-19 pandemic, the failure to participate in the first hearing by the defendant's trusted defense attorney, due to the lack of provision of the authorized remote connection, results in absolute and incurable nullity of the hearing pursuant to Article 179, paragraph 1, of the Code of Criminal Procedure, as well as the derived nullity of the judgment pronounced at its outcome, since the procedures for holding the hearings suitable for safeguarding the contradictions prescribed by Article 23, paragraph 5, of Decree-Law No. 137 of October 28, 2020, were not observed.

The Implications of the Judgment

This judgment has significant repercussions on the Italian legal system, highlighting the following issues:

  • Protection of the Right to Defense: The Court reiterates that the right to defense cannot be compromised, even in emergency situations.
  • Obligation of Adequate Technological Measures: Institutions must ensure the necessary infrastructure for lawyers to assist their clients.
  • Absolute Nullity of the Hearing: The failure to comply with the rules governing the holding of hearings results in the absolute and incurable nullity of the hearing itself.

Conclusions

In conclusion, judgment no. 24657 of 2023 represents an important step in the protection of the rights of defendants and their defenders. It highlights the importance of ensuring that, even in emergency contexts, the right to defense remains a fundamental pillar of the criminal process. The Court of Cassation, with this decision, not only protected the figure of the defender but also drew attention to the necessity of adequate technological support for hearings, so as to avoid situations of injustice and violation of fundamental rights.

Bianucci Law Firm