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Firm profile


Detention abroad and right to partecipate at an Italian criminal trial (Cass., 43200/22)

14 November 2022, Cassazione penale

The right of the person to participate personally at his/her trial and to be present, especially if he or she is subject to restrictions on personal freedom, constitutes a qualified expression of the fundamental right of defense.

The right of defense is a fundamental right of the individual, and in the perspective of the "tendentially" Italian accusatory process, the participation of the accused in the trial is an indefectible condition for the regal exercise of jurisdiction; it pertains to the right of defense and is not "conculcable," being able at most to be the subject of explicit waiver by the holder thereof. The defendant's right to participate in the trial is accorded constitutional status (Article 111 Const.): a trial without a defendant can in fact be held only as a result of a conscious and voluntary option of the defendant himself.

Detention abroad, even for a crime other than the one being tried, constitutes a legitimate impediment to appear even in a chamber hearing, provided it appears in the case file.

 (unofficial automatic translation)

Italian Supreme Court
sec. II Criminal, hearing. Sept. 28, 2022 (dep. Nov. 14, 2022), no. 43200
President Diotallevi - Rapporteur Perrotti

In fact

With a judgment given at the outcome of the chamber hearing on 11/2/2021, the Court of Appeal of Potenza on appeal filed by the defendants, confirmed the judgment of first instance, issued following a trial celebrated in the forms of the "fast track" (abbreviate)  procedure.

Against this pronouncement the defendants appealed through the common defense counsel, who with almost entirely overlapping grounds deduced:

1. Failure to comply with the procedural law provided for under penalty of nullity (art. 178 c.p.p., lett. c, art. 599 c.p.p., D.L. 149 of 2020 art. 23), given that the Court of Merit had considered to proceed in the absence of the defendants, even though they had been timely informed (annotation c.c. Scalea Station dated April 27, 2019 and defense note dated February 6, 2021) of the detention status abroad (Romania and Austria) of the same for other cause, since it did not appear in any case manifested -according to art. 23, paragraph 1 (D.L. cit.)- the defendants' willingness to appear in the chamber hearing conveyed through the defense counsel's request for oral handling of the trial. With the consequent nullity of the trial held in absence and of the appealed judgment, given that the legitimate impediment to appear had also been represented by the defense counsel in the written conclusions filed for the hearing on February 11, 2021;

2. violation of substantive criminal law (art. 606 c.p.p., paragraph 1., lett. b), the Court of Merit having confirmed the legal qualification of the crime of complicity in robbery, recognized in the first instance, where the description of the incident led to the belief that the fact could be qualified as anomalous complicity in the crime of robbery committed by the minor separately judged;

3. defects in the statement of reasons and violation of the law (art. 606, paragraph 1, lett. b, c, e), since the Court of Merit failed to give reasons regarding the requested prevalence of the general extenuating circumstances, already recognized in the equivalence judgment at first instance, and having also erred in identifying the minimum sentence provided for the crime of robbery not aggravated at the time of the act (6/11/2015, three years' imprisonment, plus fine).

Considered in law

1. The first ground of appeal is well-founded; the next two substantive arguments remain absorbed by the procedural decision.

1.1. In the procedural case brought to the Court's attention, it appears that the defendants upon their respective release had declared domicile [to receive information about the proceeding, note added] in (omissis) ; at that domicile the Court attempted to serve the summons for trial; however, both defendants were found to be unavailable at the indicated domicile (see notification report dated March 15, 2019); the summons for the appeal trial was then served (for both) at the defendant's lawyer's office, pursuant to Article 161, paragraph 4, of the Code of Procedure. Already by annotation of April 27, 2019, the court was, however, made aware of the defendants' (then existing) detention abroad for another cause.

It therefore ran the obligation to proceed with the service of the decree of summons for the trial of appeal on the defendants detained for another cause (see lastly, also for the overall reconstruction of the institution and the indication of the stratified jurisprudence Sez. U., no. 12778, of 27/2/2020, Rv. 278869, which affirmed the following principle of law: the notifications made, with respect to the detained defendant, at the declared or elected domicile and not at the place of detention, give rise to nullity with an intermediate regime, subject to the amnesty provided by Art. 184 Code of Criminal Procedure. Even if one wanted to disregard the defendants' place of detention for another cause, it was incumbent on the proceeding court (which had been informed of the defendants' condition of detention for another reason) to serve the summons at the place of detention. The legitimate impediment to appear and the very nullity of the summons had, moreover, been represented by defense counsel in written submissions.

But there is more, since in a note dated February 6, 2021, the defense counsel for both defendants had also informed the court of the defendants' detention abroad for other reasons.

The Court's decision -which held that it could proceed in the absence of the defendants, given that there was no request in the record for oral proceedings or manifestation by the defendants to appear in court, so that the impediment that had arisen did not appear relevant- thus appears eccentric with respect to the procedural issue raised by the defense and in any case known to the Court of Merits, which had been informed on the point by the CC's previous note. What is relevant in the present case is not so much the emergent rite elected by the defense counsel (who did not promptly request the participatory handling of the in camera hearing), but rather the nullity of the summons of the defendants for the appeal trial, since they were (at the time of the summons) already detained abroad for another reason.

1.2. Now and a fortiori, even if the state of detention had occurred prior to the regular trial summons, according to living law, detention abroad, even for a crime other than the one being tried, constitutes a legitimate impediment to appearance even at the hearing in chambers, provided that it is apparent from the documents (Sez. 6, no. 14778, of 23/1/2020, Rv. 278760; Sec. 4, no. 47497 of 03/11/2011, Gasi, Rv. 251740; Sec. 2, no. 24535 of 29/05/2009, Volpe, Rv. 244252; more generally on the impediment constituted by the detention status of the defendant see: Sez. U, No. 7635 of 09/30/2021, dep. 2022, Rv. 282806, in motiv. sub 9.1. and 10. pp. 14, 15 and 16; Sez. U., No. 35399 of 6/24/2010, Rv. 24783701; Sec. U. Arena of 2006; in the same senses: Sec. 6, No. 15139 of 11/11/2021, dep. 2022, in motiv, Rv. 283143; Sect. 3, No. 3958 of 12/11/2021, dep. 2022, Rv. 282888; Sect. 6, No. 36813 of 31/5/2018, n. m.; Sect. 6, No. 47594 of 14/11/2014, Rv. 261722).

The judge, therefore, in assessing the impeding cause deduced in the defendant's interest also by the defense counsel, must adhere to the nature of the same and, pursuant to the provisions of Article 420 ter, paragraph 1, of the Code of Procedure, informed of the impediment has the burden of postponing the hearing and proceed to verify the existence of the impediment itself, which in this case would also have inhibited the request for participation (even in forms other than physical presence) in the trial.

This is indeed an issue involving a fundamental right of the individual. From the perspective of the "tendentially" accusatory process, the defendant's participation in the trial is an indefectible condition for the regal exercise of jurisdiction; it pertains to the right of defense and is not "conculpable," being at most subject to explicit waiver by the holder thereof. The defendant's right to participate in the trial is accorded constitutional status (Art. 111 Const.): a trial without a defendant can in fact be held only as a result of a conscious and voluntary option of the defendant himself.

The principle under consideration is also affirmed in conventional legislation (Art. 6, para. 3, lett. c), d), e), of the European Convention on Human Rights; Art. 14, para. 3, of the International Covenant on Civil and Political Rights -adopted in New York on December 16, 1966, made executive by Law No. 881 of October 25, 1977, and entered into force for Italy on December 15, 1978-).

The right to attend the hearing is a fundamental requirement of a fair trial, that is, a guarantee of the principle of "equality of arms"; it is, however, a right that is not absolute, since limitations dictated both by the need to safeguard the proper administration of justice-when it is threatened by the abuse of the rights of the defense-as well as limitations dependent on a legitimate and voluntary waiver of the right to appear before the trial court are admitted.

The Unified Sections of this Court (No. 35399 of June 24, 2010, RV. 247836), precisely in relation to the appellate trial of a trial held in the forms of the abbreviated procedure, affirmed the fundamental right of the defendant to be present in the chamber trial in which his responsibility is decided. It was clarified there that failure to be translated at the appellate chambers hearing results in the absolute and irremediable nullity of the chambers trial and its judgment.

To the problem of the timing of the request for participation in the chamber hearing, Judgment No. 35399 of 2010 devotes special attention. Unlike in the ordinary trial, in the chamber judgment of appeal, a fortiori in the one governed by the emergency legislation still in force today, "the detained defendant has the burden of notifying the appellate court of his willingness to appear," and the right to participation is related to the regularity and timeliness of compliance, i.e., to the circumstance that "the communication is made in such a manner as to allow the defendant to be translated for the hearing, not being able to disregard a "balance between the defendant's fundamental right to be present and the need to respect the characteristics of streamlining and celerity of the rite chosen by the same defendant and to ensure that the duration of the trial is not unreasonably and unnecessarily prolonged as a result of the defendant's mischievous or unjustified conduct" (most recently, on the subject, Sec. U., No. 11803 of 02/27/2020, Ramundo, Rv. 278491).

This is an interpretation that finds support in the ruling of the Constitutional Court No. 45 of 1991, which, with reference to the review proceedings, clarified the absolute importance of the establishment of the adversarial process before the judge who will have to make the decision and recognized that the detained defendant certainly has an interest in being present at the hearing to oppose, if he so wishes, the evidentiary findings and possibly indicate other circumstances favorable to him. On the other hand, the judge's right-duty to hear the defendant personally, and the defendant's right to be heard by the judge who is to try him, are part of the general principles of immediacy and orality that the current procedural system is informed by (in the same sense, Constitutional Court No. 31 of 2017). Therefore, the right of the person concerned to participate personally in the judgment and to be present, especially if he or she is subject to restrictions on personal freedom, constitutes a qualified expression of the fundamental right of defense.

1.3. As for the emergency discipline, explicitly founding the trial decision of the territorial court, it is necessary to refer to Decree Law No. 137 of 2020 Articles 23 et seq. converted with amendments into Law No. 176 of December 18, 2020. The conversion law implemented the merger, by incorporation into the text of Decree-Law No. 137 of 2020, of the subsequent so-called "Ristori" decrees-laws -bis-ter and -quater, contextually repealed, the provisions of which were fully transfused into the former, which became the reference text for emergency regulations. Specifically, the provisions previously contained in Decree Law No. 149 of Nov. 9, 2020, Articles 23-24 (the so-called Ristori-bis decree)-relating to the celebration and decision of criminal appellate judgments and the suspension of the course of the statute of limitations and the terms of custody in criminal proceedings and the terms of disciplinary proceedings against magistrates-now become, respectively, Articles 23-bis and 23-ter of the articles. Article 23-bis of the indicated law, expressly dedicated to the criminal appeals process, stipulates that as of November 9, 2020, and until April 31, 2021, with the exception of cases of renewal of the trial instruction pursuant to Article 603 of the Code of Criminal Procedure, appeals hearings shall be held in chambers, without the participation of the prosecutor and defense counsel, unless the private parties or the prosecutor expressly request oral discussion or "the defendant manifests the will to appear" (Paragraph 1). Paragraph 2 prescribes, consequently and consistent with the limiting set-up of procedural guarantees, the rules for the final discussion, according to which the conclusions must be formulated in writing and transmitted to the clerk's office of the Court of Appeals electronically. It follows from the rule under consideration that the appeal hearing shall not be held in chambers without the participation of the parties if: a) the private parties or the prosecutor request oral discussion; b) if the defendant manifests a willingness to appear. The hearing, therefore, is not held in chambers without the participation of the prosecutor and defense attorneys, even if, despite the fact that none of the parties requests oral discussion, the defendant manifests a willingness to appear. In addition to L. No. 176 of 2020 Article 23-bis, Article 23, titled "Provisions for the exercise of judicial activity in the vigor of the epidemiological emergency from COVID-19," is of relevance. Within paragraphs 3, 4 and 5 of Article 23, which are specifically intended for criminal judgments, reference is repeatedly made to "criminal hearings," without any specification as to the stage or procedural level at which such a hearing is to take place. Paragraph 4 of Article 23 guarantees the remote participation in "any hearing" of persons "detained, interned, in pre-trial detention, detained or arrested," through explicit reference to paragraphs 3, 4 and 5 of Article 146-bis disp. att. c.p.p., i.e., the general procedural rule governing remote participation in criminal hearings. The system provides a general incompressible right of the defendant to participate in the hearing and provides, as in the present case, for detained defendants that participation in "any hearing" is guaranteed at a distance. The emergent normative framework of reference thus corroborates the principle of law repeatedly reaffirmed by this Court in the decisions (including in U.S. Sec.) cited above.

1.4. What comes to the fore in the present case is: the absolute impediment to appear heterodetermined; the practical difficulty for defendants detained abroad to communicate to the prosecuting judge their willingness to appear in court; the communication to the prosecuting judge of the impeding cause and the consequent knowledge of the impediment. Which should have induced, precisely pursuant to Article 420b(1) of the Code of Criminal Procedure, the court at least to postpone the hearing in order to inform the defendants of the trial and acquire the explicit waiver to attend the trial.

2. Therefore, it is necessary to annul without referral the judgment appealed and the consequent transmission of the acts to the Court of Appeal of Salerno, for further course (subpoena, verifying its effectiveness, new trial, with notice to the defendants of the right to request, if unable to attend the hearing, remote participation).


Annuls the appealed judgment without referral and orders the records to be sent to the Salerno Court of Appeals for further course.