Commentary on Judgment No. 39576 of 2024: Absence of the Defendant and Right to Defense
Judgment No. 39576 of October 1, 2024, filed on October 28, 2024, provides important clarifications regarding the rights of the defendant in the context of criminal proceedings, particularly concerning the appointment of a defender and their absence. The Court of Cassation, presided over by L. I., annulled without referral the decision of the Court of Appeal of Venice, addressing crucial themes for the defense and the defendant's awareness of the proceedings.
Context of the Judgment
The case in question involved A. H., who had declared himself absent during the proceedings, despite having appointed a trusted defender with a domicile election at their office. However, the defender had resigned from the mandate without informing the defendant of this decision. The Court established that this situation could not be interpreted as an indication of the defendant's actual awareness of the proceedings, as their absence was due to the defender's behavior and not to informational negligence.
Election of domicile with the trusted defender - Subsequent resignation from the defense mandate not communicated - Declaration of absence made prior to the entry into force of Legislative Decree No. 150 of 2022 - Actual awareness of the proceedings - Exclusion - Reasons. The appointment of a trusted defender with domicile election at their office, followed by a resignation from the mandate not communicated by the professional prior to the start of the proceedings, does not constitute an indication of the defendant's actual knowledge, in the event that their absence has been declared pursuant to Article 420-bis of the Criminal Procedure Code, in the formulation prior to the rewriting made by Article 23, paragraph 1, letter c), Legislative Decree of October 10, 2022, No. 150, since the failure to participate is attributable not to their informational negligence, but to the behavior of the defender.
Legal Implications
This judgment has several significant implications for the right to defense. In particular, it emphasizes the defender's duty to maintain clear and timely communication with their client. The Court establishes that the resignation from the mandate must be communicated; otherwise, the defendant's right to be informed and to actively participate in the proceedings is compromised. The main legal considerations can be summarized in the following points:
- The defender must ensure effective communication with the defendant.
- The resignation from the mandate must be formally communicated to avoid misunderstandings.
- The right to defense cannot be compromised by the negligence of the defender.
Conclusions
In conclusion, Judgment No. 39576 of 2024 represents an important step forward for the protection of defendants' rights in criminal proceedings. It reaffirms the importance of communication between defender and client and the necessity to ensure that any resignation from the mandate is adequately communicated. The Court thus demonstrates a particular sensitivity to the right to defense, stating that the responsibility for the defendant's absence cannot fall on them if caused by the defender's behavior. This principle is fundamental to ensuring a fair trial, in line with Italian and European regulations.
