Commentary on Judgment No. 37875 of 2023: Obligation to Appoint a Public Defender

The judgment no. 37875 of 2023 by the Court of Cassation addresses a crucial issue in criminal procedural law: the obligation of the judge to appoint a public defender in case of resignation of the trusted defender. This aspect is fundamental to guarantee the right to defense, a cornerstone of a fair trial.

Context of the Judgment

In the specific case, the appellant, B. P.M., had experienced a resignation by his trusted defender. The central issue was whether the judge had fulfilled the obligation to promptly appoint a public defender, as provided by Article 97, paragraph 1, of the Code of Criminal Procedure. The Court highlighted that the failure to appoint led to a violation of the defendant's rights, creating a situation of substantially diminished defense.

Resignation of the defense mandate - Failure to appoint a new trusted defender - Obligation of the judge to promptly appoint a public defender pursuant to Article 97, paragraph 1, of the Code of Criminal Procedure - Existence - Violation - Nullity pursuant to Article 178, letter c), of the Code of Criminal Procedure - Reasons - Case. In the event of resignation of the mandate by the trusted defender, the judge, in the absence of a new trusted appointment, is obliged, under penalty of nullity pursuant to Article 178, letter c), of the Code of Criminal Procedure, to promptly designate a public defender, in order to prevent the defendant, in a situation of substantially diminished defense, from being factually deprived of process choices subject to peremptory deadlines and to allow the appointed defender to inform the assisted party primarily of the right to indicate a new trusted defender. (Case where the appellant, detained for another cause, could only appoint a new trusted defender two days before the hearing before the Court of Appeals, a circumstance also attributable to the delay with which the judge, after acknowledging the resignation of the original trusted defender, had appointed, pursuant to Article 97, paragraph 1, of the Code of Criminal Procedure, a public defender).

Implications of the Judgment

This judgment reaffirms the importance of the right to defense, clearly expressing that the judge cannot remain inactive in the face of the resignation of the defender. The delay in appointing a public defender can seriously undermine the defendant's ability to exercise their rights and to mount an adequate defense. Below are some practical implications of the judgment:

  • Obligation of appointment: The judge must always proceed with the appointment of a public defender in case of resignation.
  • Timeliness: It is essential that this appointment occurs without delays to ensure the rights of the defendant.
  • Prevention of situations of diminished defense: The judgment emphasizes how the protection of the defendant's rights is a priority in criminal proceedings.

Conclusions

In conclusion, judgment no. 37875 of 2023 represents an important step forward in the protection of the rights of defendants in criminal proceedings. The Court of Cassation has clarified that adherence to the procedures for appointing a defender is essential to ensure a fair and equitable trial. Legal practitioners must pay particular attention to these aspects to avoid violations that could compromise the legitimacy of the trial and the right to defense.

Bianucci Law Firm