Analysis of Judgment No. 26222 of 2023: Deductibility and Presence of the Defender in Criminal Proceedings

Judgment No. 26222 of 2023, issued by the Court of Cassation, provides important clarifications regarding the deductibility of nullity in criminal matters. In particular, the case in question highlighted the issue of the presence of the defender and the implications this has on the validity of procedural acts. The Court established that the nullity of an act can be raised even in the absence of the defendant, as long as a defender, even if appointed ex officio, is present, as they are the only one authorized to raise this defect. This principle fits into a well-defined regulatory context and deserves careful analysis.

The Principle of Deductibility of Nullity

According to Article 182, paragraph 2, of the Code of Criminal Procedure, it is essential that the nullity of an act be raised before its execution or, if this is not possible, immediately thereafter. The Court clarified that the presence of the defendant is not necessary at the time the defender raises the issue of nullity. This aspect is crucial, as it recognizes the predominant role of technical defense in criminal proceedings, in line with the principles of safeguarding the rights of the defendant.

DEDUCTIBILITY - Sanction under Article 182, paragraph 2, of the Code of Criminal Procedure – Presence of only the defender – Sufficiency – Reasons. The provision of Article 182, paragraph 2, of the Code of Criminal Procedure, which states that when the party is present, the nullity of an act must be raised before its completion or, if this is not possible, immediately thereafter, does not require that the nullity manifest in the presence of the defendant, as the presence of the defender, even if appointed ex officio, is sufficient, being the only subject authorized to raise the defect. (In the reasoning, the Court clarified that the procedural system favors technical defense over self-defense, which is never allowed exclusively, but only in forms that complement the indispensable contribution of a legally qualified expert.)

Implications of the Judgment in Procedural Law

The decision of the Court of Cassation is not only a confirmation of already established principles but also a call for broader reflection on the role of defense in criminal proceedings. The Italian legal system indeed places the defender in a central position, recognizing that technical defense is fundamental to ensuring a fair and just trial. The judgment also connects to higher-ranking norms, such as Article 24 of the Constitution, which safeguards the right to defense, and the New Code of Criminal Procedure, which establishes clear rules to protect the rights of defendants.

  • The nullity of procedural acts must be raised in a timely manner.
  • The presence of the defender is sufficient to raise issues of nullity.
  • Technical defense is privileged over the self-defense of the defendant.

Conclusions

In conclusion, Judgment No. 26222 of 2023 represents an important step forward in the protection of the rights of defendants in criminal proceedings. The Court of Cassation reiterated that the presence of the defender is sufficient to raise issues of nullity, thus emphasizing the importance of technical defense. This principle not only facilitates the work of lawyers but also ensures that the right to defense is fully respected, confirming the essential role of the defender in the Italian legal system.

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