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Ignorance of basic rules by defense attorney cannot prejudice rights of defendant (Cass. 35149/09)

10 September 2009, Italian Supreme Court

Marked ignorance of basic rules regarding the running of time limits for appeals, which any legal practitioner, practicing in the criminal field, must be familiar with, is unforeseeable and thus legitimate a restitution in appelate rights by the convicted defendant.

(unofficial machine translation)

Judgment, (date of hearing 06/26/2009) 10/09/2009, No. 35149

Composed of the Honorable Magistrates:

Dr. DE ROBERTO Giovanni - President

Dr. SERPICO Francesco - Councilor

Dott. IPPOLITO Francesco - Councilor

Dott. CONTI Giovanni - Councilor

Dott. CITTERIO Carlo - Councilor

pronounced the following:


On the appeal brought by:

A.A., born in (OMISSIS);

against the judgment dated November 27, 2006, of the Court of Appeal of Genoa;

Having seen the acts, the judgment complained of and the appeal;

Hearing in public hearing the report made by Counselor Dr. Giovanni Conti;

Hearing of the Public Prosecutor, in the person of Deputy Attorney General Dr. SELVAGGI Eugenio, who concluded for annulment with referral.

Unfolding of the trial.

With the judgment in the present case, the Genoa Court of Appeal declared inadmissible, inasmuch as it was not accompanied by grounds, the appeal lodged personally by A.A. against the judgment dated February 1, 2000, of the Court of Genoa, by which he had been sentenced to three years' imprisonment because he was responsible for the continued crime under Article 572 of the Criminal Code (Chapter A: mistreatment to the detriment of his minor daughter An. and his wife E. F.; in (OMISSIS)), Articles 582 and 585 of the Criminal Code and Article 577 of the Criminal Code, paragraph 2 (Chapter B: willfully causing bodily harm to his wife; in (OMISSIS)), Articles 582 and 585 of the Criminal Code, Article 577 of the Criminal Code, paragraph 1, no. 1 (Chapter C:

Willful bodily injury to minor daughter; in (OMISSIS)).

The Court of Appeals observed that the defense's suggestion of a fortuitous or force majeure situation that had prevented the filing of the grounds of appeal was not supported by any evidence.

The defendant personally appeals for cassation, complaining that there was an erroneous failure to recognize a situation of fortuitous event or force majeure in relation to the request for remittal of the grounds for appeal under Article 175 of the Code of Criminal Procedure, inferring that this omission was due to the negligent behavior of the previous defense counsel, who, contrary to all his expectations, had not acted; a situation of failure to defend, this, which had been punctually documented in the request for remittance in terms and which should have led to the acceptance of the request itself, in light of the newly amended art. 111 Const. and art. 175 c.p.p. and the jurisprudence of the European Court of Human Rights.

Reasons for the decision

In the Court's opinion, the appeal is well-founded.

It is documented in the record that A., a detainee, submitted to the Matriculation Office of the Prison House where he was confined, on two occasions, a statement of appeal reserving his grounds for appeal to his lawyer, VP, who had assisted him in the first instance.

More precisely, a first statement of appeal, reserving the grounds to the aforementioned defense counsel, was proposed by the defendant on November 4, 1999, believing he, who did not appear, that the trial at first instance had been in his absence defined at that hearing;

and, subsequently, on Feb. 7, 2000, after the final hearing on Feb. 1, another statement of appeal, with similar reservation of grounds, was proposed by the same, who also on this occasion had waived his right to appear.

The appellant claims that the grounds were not presented due to the failure to activate the aforementioned defense counsel, who was also present in the appeal, and who, when questioned by him, had informed him that he believed that the time limit for appeal had not expired, since he had not been served with the notice of filing of the judgment;

fulfillment which, however, clearly did not have to be carried out, pursuant to Article 585 c.p.p., paragraph 2, lett. c), given that the judgment was filed within the terms provided by law: in fact, the judgment, pronounced on February 1, 2000, was filed on the following February 10, so that from the fifteenth day from the date of the pronouncement (see Article 544 c.p.p., paragraph 2) the time limit for appeal began, without the need for any formality of notice of filing.

In the judgment under appeal, the Court of Appeals, without taking a position as to whether a situation of fortuitous event or force majeure could be established, notes that "in the face of the prospect of a situation of fortuitous event or force majeure, the defendant's defense was unable to point to any evidence."

It should be noted, however, that in the request for return within the time limit pursuant to Article 175 of the Code of Criminal Procedure, the defendant had specified the factual circumstances indicated above, in particular pointing out that his willingness to file an appeal was well known to lawyer P, who, having then been asked for explanations about the failure to file the notice of appeal, had informed him that the time limit for appeal had not expired, as he had not been notified of the filing of the first instance judgment.

These circumstances could have been verified by the Court of Appeals, as part of the powers of cognition associated with the procedure of restitution within the time limit.

They, if they existed, constituted a case of failure to assist defense counsel, since, according to the party's allegations, the defense counsel's inaction stemmed not from his reasoned procedural choice, but from an ignorance of the elementary rules on the subject of the commencement of the time limit for appeals.

In the case at hand, therefore, the failure to file the notice of appeal would not have been the effect of carelessness or professional negligence, which could normally be foreseeable, falls procedurally on the assisted party (see, among others, precisely on the subject of restitution within the time limit, Cass., Sec. un., April 11, 2006, De Pascalis; Cass., Sec. 3, March 27, 1969, Jagata; Cass., Sec. 1, June 10, 1968, Iaia; Cass, Sec. 5, Jan. 29, 1968, Malabotta); but, again on the thesis, of a marked ignorance of basic rules on the subject of the commencement of time limits for appeals, which any person qualified in the legal profession, practicing in the criminal field, must know; so that it can be said that, if the facts set forth were true, the defendant could have had no way of foreseeing such radical ignorance of the law of criminal procedure on the part of the professional who had accepted his patronage and to whom he had (repeatedly) entrusted the submission of the notice of appeal.

Therefore, one cannot agree with that part of the jurisprudence according to which the failure or inexact fulfillment by the trusted defense counsel of the assignment to propose an appeal, "for whatever cause attributable," is not capable of realizing the hypothesis of fortuitous event or force majeure that legitimizes restitution within the time limit; because if it is true that it is up to the defendant to choose a professionally valid defense counsel and to supervise the exact observance of the assignment conferred (Cass, Sect. 2, Nov. 11, 2003, Sulli; Cass., Sect. 1, Apr. 24, 2001, Bekhit; Cass., Sect. 5, Feb. 1, 2000, Bettili), it cannot be expected that he, in making the choice of a defense counsel, check in advance (without, moreover, possessing the relevant cultural knowledge) his mastery of ordinary rules of law that should constitute the technical background of any person legitimized to the legal profession through passing the state examination.

The situation represented could thus correspond to the hypothesis of a fortuitous event, which, according to case law, is supplemented precisely by an unforeseeable fact of reality that overwhelms any possibility of resistance and contrast (see for all Cass., Sez. un., ric. De Pascalis, cit.; as well as Corte Cost., sent. no. 101 of 1993).

It should then be noted, that according to ECHR jurisprudence, the national court has a duty to restore the defendant's fundamental procedural rights when defensive deficiencies are manifest and are brought to its attention (see judgments April 9, 1984, Goddi v. Italy; Nov. 24, 1993, Imbrioscia v. Switzerland; April 27, 2006, Sannino v. Italy; Jan. 18, 2007, Hany v. Italy); and the national court is obliged to apply and interpret the domestic rule in a manner consistent with the ECHR, in light of the case law of the European Court.

In conclusion, the Court of Appeals has shirked its duty to ascertain whether the facts attached corresponded to the truth and whether they constituted a fortuitous situation, such as to justify the request for restitution within the time limit for lodging an appeal.

The appealed judgment should therefore be annulled, with referral to another section of the Genoa Court of Appeals, which will proceed to a new judgment regarding the prerequisites for restitution within the time limit to appeal advanced by the defendant, according to the principles set forth above.


Annuls the appealed judgment and remands to another section of the Genoa Court of Appeal for new judgment.

Thus decided in Rome, June 26, 2009.

Filed at the Clerk's Office on September 10, 2009.