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Mistakes of defense attorney prejudice definitively defendants rights (Cass. 18716/16)

5 May 2016, Italian Supreme Court

Failure or inexact fulfillment of the defense counsel's instruction  to bring an appeal is not enough to constitute the cases of fortuitous event or force majeure. 

(unofficial machine translation)

Court of Cassation

Sec. VI Criminal, ruling March 31-May 5, 2016, no. 18716
President Paoloni - Rapporteur Corbo

Held in fact.

1. By order issued on December 1, 2015, the Bologna Court of Appeals rejected the request for restitution within the time limit submitted by S.A. to appeal against the sentence issued by the monocratic Court of Forlì on March 2, 2015, by which he was sentenced to one year and five months' imprisonment for the crimes referred to in articles 612, first and second paragraphs, 594 and 368 of the Italian Penal Code, committed in (OMISSIS) . The rejection of the request was ordered on the finding that in the case at hand, the hypotheses of fortuitous event or force majeure cannot be recognized, given that the failure to timely file the appeal, according to what is expressly stated in the petition, is attributable to the defense counsel due to ignorance of the law of criminal procedure, having procrastinated the filing of the appeal while waiting for the notification of the abstract in absentia to S. , which was actually not due, as the latter, after originally remaining in default, had appeared at the hearing to submit to examination.

2. He appealed for cassation against the specified order, attorney M.G. , as counsel for S. , developing a single ground of appeal, in which he complains of erroneous application of criminal law in relation to Articles 43 and 45 of the Criminal Code, as well as missing, contradictory and illogical grounds.
It is premised that the counsel for S. , even though the default was revoked, relied on the notification of the extract in absentia to his client, and reiterated this conviction to the latter even by e-mail, until he realized the error he had incurred only on October 19, 2015. It is then represented that, according to what has been pointed out by the United Sections (citing Sect. U, no. 14991 of 11/04/2006, De Pascalis, Rv. 233419), the fortuitous event is integrated by "any event not avoidable with normal diligence and not attributable to the subject by way of fault or malice." It is pointed out, therefore, that no fault can be discerned in the conduct of S. , given that he had been reassured by the lawyer and had no elements to be suspicious of the latter's inexperience, which concreted in incurring a blatant and unforeseeable error of law. It is recalled, in support of the thesis of the existence of fortuitous causation, Sect. 2, no. 31680 of 14/07/2011, Lan, Rv. 250747, and Sect. 6, no. 35149 of 26/06/2009, A, Rv. 244871), and urges, if necessary, the referral of the matter to the United Sections and art. 618 cod. proc. penale.

3. The Attorney General, in a written indictment, called for the dismissal of the appeal on the grounds that it was unfounded. To this end, in particular, he pointed out that the solution envisaged by the defense would result de facto in a generalized failure to comply with the ordinary terms, and that, according to widespread case law, a specific duty of diligence also rests on the defendant, who, among other things, has the burden of checking the exact fulfillment of the assignment by the defense counsel, even when the latter is appointed in trust.
4. S.'s defense counsel filed a rebuttal brief, in which he pointed out that a special duty of care on the part of the defendant can be configured only when the error is not unforeseeable; this, especially since in the case at hand the original defense counsel was not negligent, but manifested inexperience, and that to demand in hypotheses of inexperience on the part of the defense counsel a specific vigilance on the part of the defendant "means creating a real and absolute presumption of guilt," or rather requiring "conduct of exceptional diligence."

Considered in law

1. The appeal, although preponderantly stated, is unfounded.

2. The proposed plea alleges that the blatant and unforeseeable error of law made by the defense counsel in computing the time limit for filing an appeal constitutes a fortuitous event, and, therefore, as such, requires its return under Article 175 of the Code of Criminal Procedure.

2.1. The solution envisaged, as highlighted in the appeal, is shared in case law by Sec. 6, no. 35149 of 06/26/2009, A., Rv. 244871, and Sec. 2, no. 31680 of 07/14/2011, Lan, Rv. 250747, which affirm the illegitimacy of the denial of the request for restitution in terms for the submission of grounds for appeal pursuant to Art. 175 of the Code of Criminal Procedure, when the failure of the trustworthy defense counsel, who did not act contrary to the defendant's expectations, to comply with the assignment to file an appeal was caused by a situation of unforeseeable ignorance of the criminal procedural law, such as to constitute a case of fortuitous event or force majeure. The indicated jurisprudential orientation (but actually Sec. 2, no. 31680 of 2011 is limited to a tralatic affirmation of the principle, given that the outcome was the dismissal of the appeal due to the absence of evidence regarding the defendant's unforeseeable ignorance of the time limits for lodging an appeal) is based on the observation that the defendant cannot be expected , in making the choice of his counsel, must verify the latter's mastery of ordinary rules of law that should constitute the technical background of any person qualified in the legal profession, and that therefore, in the case of serious errors of the trustee, a case of fortuitous eventuality exists; said guideline, moreover, refers to the principle of ECHR jurisprudence that 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.

2.2. The majority orientation of jurisprudence, however, is to the effect that the failure or inexact performance by the defendant's lawyer of the duty to bring an appeal, for whatever cause attributable, is not capable of realizing the hypotheses of fortuitous event or force majeure (cf, notably, among many: Sect. 2, No. 16066 of 02/04/2015, Costica, Rv. 263761; Sect. 3, No. 39437 of 05/06/2013, Leka, Rv. 257221; Sect. 1, No. 1801 of 30/11/2012, dep. 2013, Masini, Rv. 254211; Sect. 4, No. 20655 of 14/03/2012, Ferioli, Rv. 254072; Sect. 2, No. 18886 of 01/24/2012, Dennaoui, Rv. 252812; Sect. 5, No. 43277 of 06/07/2011, Mangano, Rv. 251695; Sect. 2, No. 48243 of 11/11/2003, La Spina, Rv. 227085; Sect. 2, No. 49179 of 11/11/2003, Sulli, Rv. 227696; Sect. 5, No. 626 of 01/02/2000, Bettili, Rv. 215490). In support of this conclusion, it is observed that the failure or inexact performance by the trusted defender of the assignment to bring an appeal, for whatever cause attributable, is not capable of integrating the hypotheses of fortuitous event and force majeure - which are concreted in impeding forces not otherwise conquerable, which legitimize the return in terms - either because it consists in a false representation of reality which can be overcome through normal diligence and attention, and because the existence of a duty of the assisted party to supervise the exact observance of the assignment conferred cannot be excluded presumptively, in the hypotheses in which control over the defensible performance is not prevented to the ordinary citizen by a complex regulatory framework.

2.3. The College believes that it must agree with this second solution, which is also consistent with the indications of the case law of the civil sections, according to which the forfeiture of a procedural time limit, including the time limit for appealing, cannot be considered blameless and therefore justify the remittance in terms, where it occurred due to an error of law (thus Sect. 6 - 3 civ., no. 17704 of 29/07/2010, Rv. 615151). In particular, it seems correct to observe that, in the case of failure to comply with the terms of appeal, there is simply no onus on the defendant to supervise the activity of the defense counsel, given that the right to appeal rests personally with the former, independently and concurrently with the latter.
3. The unfoundedness of the plea is followed by the dismissal of the appeal and an order that the appellant pay the court costs.


dismisses the appeal and orders the appellant to pay the court costs.