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Absent doesn't mean contumacious: new rescission not allowed (Supreme Court, 18624/19)

19 May 2019, Italian Supreme Court

The request for "rescission of the judgment" (rescissione del giudicato)  applies only to proceedings in which the absence of the defendant has been declared pursuant to Article 420-bis of the Code of Criminal Procedure, as amended by Law No. 67 of April 28, 2014, while the discipline of restitution within the time limit for bringing an appeal dictated by Article 175 of the Code of Criminal Procedure continues to apply to contumacious proceedings handled according to the regulations prior to the entry into force of Law No. 67 of April 28, 2014, paragraph 2, in the text previously in force: for the latter, in the absence of express regulatory provisions, no question of intertemporal law can loom, since it is clear that they, held according to the regime in absentia or according to the regime of absence, as previously regulated ("contumacia"), could not be affected by the jus superveniens, which explicitly refers to an "assente" - and not "contumace" - defendant in the terms defined by the new discipline.

(machine non official translation)

Italian Supreme Court
sec. III Criminal, Judgment No. 18624
April 8 - May 3, 2019
President Rosi - Rapporteur Galterio

Held in fact

1.By petition pursuant to art. 629 bis c.p.p. dated 4.6.2018 D.I. requested the Court of Appeal of Rome to rescind judgment no. 2332/2017 pronounced against him by the same Court of Appeal and res judicata on 5.11. 2017, by which he had been sentenced, with proceedings celebrated in his absentia in both the first and second instance, to six years' imprisonment as he was found responsible for the crime under Article 609 bis of the Criminal Code committed against one of his compatriots between (omissis) , assuming the blameless lack of knowledge of the proceedings for never having received any communication or notification relating to it.
By order dated Nov. 20, 2018, the Court of Appeal of Rome rejected the application, noting that the petitioner had not only elected domicile in a context in which the nature and purpose of the declaration made were clear since his position was indicated in the relevant report as "person under investigation or defendant," but that he had subsequently appointed a trusted defense counsel, an appointment that contemplated the intention to provide himself with technical defense by means of a chosen professional, presupposing full awareness of an ongoing criminal investigation.
2. D. appealed against the aforementioned order through his defense counsel, articulating three grounds reproduced below within the limits of Article 173 disp. att. c.p.p.
2.1. With the first plea he contests, in relation to the violation of the law referred to Article 629 bis c.p.p., that the expression used by the norm, namely, "the absence of the convicted person from the trial," can be dilated to the point of considering in it also included the phase of preliminary investigations, such as the one to which the declaration of domicile made by the appellant dates, who held, at that time, the position of simple suspect, in which, since the prosecution has not yet been exercised, only investigations are carried out by the Public Prosecutor and the Judicial Police, which could in any case lead to the dismissal of the proceedings without ever reaching trial. The defendant was not, in this summing up the core of the defense objection, given a fair trial since he was never made aware either of his position as a defendant in the absence of the notifications of the orders issued pursuant to Articles 415 bis and 552 bis of the Code of Criminal Procedure or of the waiver of the mandate of the defense counsel appointed by the same fiduciarily at the time of the election of domicile.
2.2. With the second plea he complains, in connection with the violation of the law referring to Articles 157, 159, 161, 429 bis, 415-bis and 522 of the Code of Criminal Procedure and Articles 11 and 24 of the Constitution, that the searches provided for in Article 159 of the Code of Criminal Procedure in the hypothesis in which it is not possible to make notifications pursuant to Article 157 of the Code of Criminal Procedure, searches that would have easily made it possible to ascertain that he resided in (omissis) , nor had a decree of unavailability ever been issued against him. He also disputes that no notification had ever been made even in the hands of his own defense counsel, to whom the documents should in any case have been addressed despite the waiver of the mandate, and he invokes the applicability of the principle already affirmed by this Court in ruling No. 28619/2006, according to which in the absence of elements that depose actual knowledge, the fault of the situation that generated the lack of knowledge does not assume importance. It is not the convicted person who has to provide proof of lack of knowledge, but rather the judge, analogous to the mechanism provided for remission in terms under Article 175 of the Code of Criminal Procedure, to have to prove the contrary, devoid of foundation is, according to the defense, the thesis sustained by the Court of Appeals, which moves from the erroneous assumption that a duty of diligence was incumbent on the petitioner, a duty in any case duly discharged in the preliminary investigation phase with the election of domicile and the appointment of a trusted defender, avoiding taking into consideration the failure of the judicial institutions to ensure him, instead, a fair trial through the notifying mechanism provided for ex lege.
2.3. With the third plea, he objects to the unconstitutionality of Article 429-bis of the Code of Criminal Procedure in relation to Articles 111 and 24 of the Constitution insofar as it does not provide that the state of blameless knowledge must be limited to the trial phase so as to extend in the notion of trial also to the procedural phase of the preliminary investigation stage.

Considered in law

1.The first and second pleas must be examined jointly as they both pertain to the alleged unculpable knowledge of the criminal proceedings held in absentia of the defendant and finalized with the defendant's conviction that has become irrevocable, and thus are intrinsically connected.

1.1. The first serious complaint of a methodological nature in which the request under Article 629 bis of the Code of Criminal Procedure made by the appellant incurs is an obvious confusion between the legal institution of absence and that of absentia.

The former system of absentia, recurring when the defendant, although ritually summoned, and not legitimately prevented from appearing in the trial, was based on a positive legal fact, i.e., the existence of a regular vocatio in judicium, on a negative legal act, i.e., the failure to appear, and contextually on the lack of proof of knowledge, being provided by Art. 420 bis c.p.p. the duty for the judge to order the renewal of service only when it was proven, or there was in any case the probability, that the defendant did not have actual knowledge of the acts, despite the regularity of service.

This approach, which had already been modified by an initial legislative intervention dating back to 2005 with regard to the institution of restitution in terms referred to in Article 175 of the Code of Criminal Procedure, with the elimination of the defendant's burden of proving, in the negative, that he did not have actual knowledge of the existence of the proceedings and the absence of guilt, was fully subverted by Law April 28, 2014, no. 67, which, in eliminating the figure of contumacy, established the discipline of the trial "in the absence" of the defendant, redesigning the prerequisites in the presence of which the trial can be held despite the defendant's non-participation by introducing, although without changing the discipline of notifications to the defendant the institution of the suspension of the trial for those for whom there is no proof either of knowledge of the date of the hearing or of the existence of the proceedings, and providing restitutory instruments aimed at guaranteeing, in the case of illegitimate celebration of the trial in absence, the regression and, therefore, the celebration of a new "trial" in which to exercise the right of defense limited in that "unjustly" celebrated in absence.

It is in this context that the institution of rescission of the judgment, first regulated by Article 625-ter, also introduced by Law No. 67 of 2014, and then amended by Law No. 103 of June 23, 2017 with the introduction of Article 629-bis of the Code of Criminal Procedure and simultaneous repeal of the previous rule, is inserted. The prerequisite on which the request for rescission is based is that the trial that is the subject of it took place in the absence of the defendant, as can be inferred from the same littera legis by providing in paragraph 1 that the petition can be filed by the convicted person "against whom proceedings were carried out in absence for the entire duration of the trial."

Therefore, the provision cannot concern a "contumacious" such as the applicant was declared in the trial against him, to whom the discipline of the trial in absence does not apply since the first instance ruling was issued on 3.11.2011 (providing the transitional discipline of Law no. 67 of 2014 contained in art. 15 bis of the same law that the relevant provisions apply to proceedings in progress provided that in them the operative part of the first instance ruling has not been pronounced).

In fact, as clarified by this Court in its supreme court, the request aimed at rescission of the judgment, although referring to the former art. 625 ter c.p.p. (but the provision of art. 629 bis is as to the prerequisites of the action remained unchanged), "applies only to proceedings in which the absence of the accused has been declared pursuant to art. 420-bis c.p.p, as amended by L. April 28, 2014, No. 67, while the discipline of restitution within the time limit for lodging an appeal dictated by Art. 175 c.p.p. continues to apply to contumacious proceedings dealt with under the regulations prior to the entry into force of L. April 28, 2014, No. 67, paragraph 2, in the text previously in force: for the latter, in the absence of express regulatory provisions, no question of intertemporal law can loom, since it is clear that they, carried out according to the regime in absentia or according to the regime of absence, as previously regulated, could not be affected by the jus superveniens, which explicitly refers to an "absent" defendant in the terms defined by the new discipline (see Sez. U, no. 36848 of 17/07/2014 - dep. 03/09/2014, Burba, Rv. 259990).

Since, therefore, today's appellant does not have access, as a contumacious person, to the extraordinary appeal pursuant to Article 629 bis of the Code of Criminal Procedure, it follows that already in this preliminary aspect the appeal must be declared inadmissible.

1.2. In any case, even following the contested measure and the grievances addressed to it, one reaches similar conclusions.

Entirely fallacious is the premise on which the complaints articulated with the present appeal are based, according to which the notifications of the acts of the trial under consideration had to be made to the defendant in accordance with the provisions of Article 157 of the Code of Criminal Procedure, et seq, with the consequent need to carry out the necessary searches contemplated by the subsequent Article 159, except possibly resulting in a decree of unavailability (which would have been avoided in any case, according to the defense, by the completion of the registry inquiries that would have made it possible to ascertain that the defendant resided in (omissis) at the address of via (omissis) where the notifications of other criminal proceedings held before the Court of Tivoli and concluded with acquittal sentence No. 234/2012).

The mechanism provided for in articles 157 ss c.p.p., which stipulates that notifications subsequent to the first one, made against defendants not detained in the places indicated therein, must be made, in the case of appointment of a trusted defender, at the latter or, in the absence of such appointment, following the scans of the same rule, does not operate in the case where the defendant has declared or elected domicile, finding instead the application of the provisions of Article 161 c.p.p.. This is what happened in the present case in which today's appellant appears, having been summoned by the Public Prosecutor's Office during the preliminary investigation phase of the proceedings that are the subject of the present application for rescission, to have on June 12, 2007 declared domicile at his residence in (omissis) . It matters little that the aforementioned declaration was made in the capacity, then, of a suspect since the mechanism set forth in Article 161, provided for since the preliminary investigation phase, extends to the subsequent phase of the trial as well by providing that notifications, in the event that the declaration or election of domicile has become unsuitable, must be made to the defense counsel, in accordance with the provisions of the closing rule contained in paragraph 4. The impossibility of making notifications at the place referred to in the declaration of domicile, which in any case transpires from the defense allegations that point out that from 2007 onward D. has resided not only in () but also in (omissis) and in (), appears in the present case to have been verified by the contested order itself where it states that at the domicile of () had been attempted on 28.2. 2008 the service of the preliminary hearing summons with the indictment attached without, as attested by the notification report, the addressee having been found at the address, nor had his name appeared on the intercoms or mailboxes, and that this had also been repeated on 20.12.2010, on the occasion of the service of the contumacious extract (the new regulations of the trial in absence not applying to the proceedings in question, as already noted,) following the pronouncement of the judgment of first instance.

That this impossibility had depended on a transfer of him to another residence or the events relating to the change of his surname (responding at that time as a result of a family reunification practice with his wife already residing in Italy to the name of D.I. , but having subsequently reacquired his original call sign of H.I. ) is a circumstance that does not emerge since with respect to this finding the appellant does not take a position, merely reiterating that his residence was in (), even though contradicted by his own allegations.
What is certain is that no illegitimacy can be deemed affected by the notifications made to the defense counsel in accordance with the provisions of Article 161, paragraph 4, in this case consisting of the one appointed ex officio given that the trusted one had renounced the mandate, a circumstance admitted by the appellant himself, on April 1, 2008. If in fact in the hypothesis referred to in paragraph 2, and therefore in the presence of a domicile validly elected or declared and therefore abstractly suitable according to the initial declaration of the defendant, the impossibility of performing the service there arises, the latter must be made to the defendant in accordance with what is expressly established by paragraph 4, which equates this hypothesis with that of the defendant's failure to declare or elect domicile ab initio, to which is naturally assimilated that in which the data of the domicile, although rendered, are insufficient or unsuitable for the concrete identification of the address indicated. As already repeatedly affirmed by this Court, the impossibility of service at the declared or elected domicile, which legitimizes its execution at the defendant's home in accordance with Article 161 of the Code of Criminal Procedure, paragraph 4, may also be supplemented by the temporary absence of the defendant at the time of the notifying officer's access, without it being necessary to proceed to a verification of actual unavailability, so as to qualify as definitive the impossibility of receiving the documents in the place elected by the defendant, considering the burden incumbent on the latter, once notified of the pendency of proceedings against him, to communicate any change in the initial election of domicile (thus Sect. 3, no. 21626 of 15/04/2015, Cetta, Rv. 263502; conf. Sez. 3, no. 10227 of 24/01/2013, Imbastari, Rv. 254422; Sez. 3, no. 12909 of 20/01/2016 - dep. 31/03/2016, Pinto, Rv. 26815801 which specified that there is no need for the judicial officer's prior double access to the elected domicile, prescribed only by Art. 157 c.p.p, paragraph 7, for the first service on the non-detained defendant when the addressee can be found at the place of service but the persons specified in paragraph 1 of said article are missing or unfit or refuse to receive the document).
In light of the above findings, it must therefore be ruled out that the appellant was in blameless ignorance of the process: for while the law attaches to the voluntariness of acts such as the election or declaration of domicile or the appointment of a trusted defense counsel an absolute presumption of knowledge, rendering the distinction between trial and proceeding on which the defense indulges unfounded, the aforementioned discipline on the subject of notifications identifies, on the other hand on the accused who is aware of the proceedings against him a specific duty of diligence that is declined both in the exercise of the powers and faculties granted to him and in the duty to take action, in order not to hinder the regular course of the trial, by communicating any changes in the domicile indicated or elected by himself, to which must be assimilated the peculiar contingency recurring in the case in point of the change of surname, insofar as it also affects his concrete availability.

2. Manifestly unfounded is the third ground of appeal. In this regard, it is sufficient to note that the alleged unconstitutionality of Article 429 bis of the Code of Criminal Procedure is an entirely irrelevant issue since it is a rule that has no application in the present case.
It follows on the outcome of the appeal that the appellant be sentenced pursuant to Article 616 of the Code of Criminal Procedure to pay the costs of the proceedings and, since there are no elements, in light of Constitutional Court Ruling No. 186 of June 13, 2000, to consider that he brought the present appeal without being at fault in determining the cause of inadmissibility, to pay a sum equitably liquidated to the Fine Fund.


Declares the appeal inadmissible and orders the appellant to pay court costs and the sum of EUR 2,000 to the Fine Fund.
In case of dissemination of this order omit personal details and other identifying information in accordance with Legislative Decree No. 196 of 2003, Article 52 as required by law.