#criminal law – Joint divisions rule in favour of notifying the defence counsel.
In the case of a specified address for service or domicile of choice per art. 161, par. 1, 2 and 3, c.c.p. (Italian code of criminal procedure), the notification attempt, delegated to the post office per art. 170 c.p.p. and which turns out to be unsuccessful due to the unavailability of the recipient, assumes that – without the need for further formalities – the service by post was made impossible. In this case, the notification must therefore be carried out by the bailiff, who must deliver it to the defence counsel. This is the principle of law expressed by the Supreme Court (Cass. pen., section un.,) of 25 November 2021 (filed on 14 April 2022), no. 14573.
In such cases, invoking the absolute nullity of the notification is not allowed unless – the Joint Divisions maintain – the defendant was not in a position to communicate the change of specified address or address of choice due to unforeseeable circumstances or force majeure.
In addition, the ruling goes on to state that the rituality of the notification is not in itself sufficient to demonstrate the effectiveness of the defendant’s awareness of the existence of criminal proceedings, an indispensable requirement imposed by the ECHR and by the rationale of the system introduced by Law 67 / 2014.
In the present case, the Court found that the defendant had not been aware of the writ of summons, nor were there elements to support the defendant’s conscious avoidance of the trial. Consequently, in application of art. 604 paragraph 5-bis of the Italian penal code, the Court annulled the two previous decisions on the merits of the case and ordered the transmission of the official records to the Court of Latina for a new judgment.
Marta Sottocasa, Atty.