Client is responsible for attorney's mistakes, even if detwsained abroad with no chance to check the lawyes behaviour.
Italian Supreme Court
Criminal section V
Sentence No. 5983 Year 2024
Hearing Date: 19/12/2023
JUDGMENT
On the appeal brought by.
HG, born in Germany on **, 1953;
against the order of July 14, 2023, of the Court of Appeal of Trieste;
Having regard to the record, the order appealed from, and the appeal (filed by Av. Nicola Canestrini);
having heard the report delivered by counselor MICHELE CUOCO;
Having read the conclusions of the Public Prosecutor, in the person of the Deputy Prosecutor General, RAFFAELE PICCIRILLO, who requested the dismissal of the appeal.
HELD IN FACT
1. The subject of the appeal is the order of July 14, 2023, by which the
Court of Appeal of Trieste declared inadmissible the application made by Gerold
Heckerd (aimed at restoring the time limit for the submission of an application for rescission of res judicata, in connection with the sentence of five years' imprisonment imposed for bankruptcy offenses by a judgment of the Court of Pordenone), because filed by defense counsel in the absence of the special power of attorney required by Art. 629 bis paragraph 2, of the Code of Criminal Procedure.
2. Appeals in cassation by the petitioner alleging, in a single ground of complaint, violation of the law (in relation to Articles 175 of the Code of Criminal Procedure, 3 and 27 of the Constitution and 6 ECHR) and related defect of motivation, insofar as the Court of Appeal did not would have considered that the professional error committed by the defense counsel at the time appointed should have been subsumed in the category of fortuitous case unforeseeable and unavoidable, in view of the appellant's status as a foreign non Italian speaking appellant, his detention abroad (specifically, in Slovenia) following the issuance of a European arrest warrant, his non knowledge of the language spoken in the detention facility.
These factors, in the petitioner's perspective, would signal a condition of particular vulnerability and of “absolute impossibility of exercising that normal diligence and attention required of the assisted person even with regard to his or her counsel.”
A different interpretation, it is argued, would lead to a violation of the principles established by the Strasbourg Court on defense rights (insofar as it requires
to guarantee concrete and effective rights) and by the Constitutional Court itself, in terms substantially overlapping with those established in the declaration of
constitutional illegitimacy of Article 30 -ter of Law No. 354 of 1975 (as to the
brevity of the time limit set for complaints against measures on the subject of
permits).
CONSIDERED IN LAW
The appeal is inadmissible.
It should be premised that it is an established principle in the case law of this Court, that the failure or inexact fulfillment by the lawyer of own choice the assignment to bring an appeal, for whatever cause attributable, is not suitable
to integrate the hypotheses of fortuitous event and force majeure - which take the form of impeding forces that cannot otherwise be overcome - since it consists in a false representation of reality, which can be overcome through normal diligence and attention.
Nor can the existence of a presumption of an onus of the assisted party to supervise the exact compliance with the assignment given, in cases
in which control over the defensional performance is not prevented to the ordinary citizen by a complex regulatory framework (see, ex multis, Sec. 5, no. 43277 of 06/07/2011, Mangano, Rv. 251695; Sect. 4, no. 20655 of 14/03/2012, Fenoli, Rv. 254072; Sec. 3, No. 39437 of 05/06/2013, Leka, Rv. 257221).
Well, in concrete terms, the circumstance that the requirements of legitimacy for the submission of the petition under consideration are plainly inferable from the normative text. Therefore, a reading of the normative text would have been sufficient to realize the necessity of attaching the special power of attorney to the proposition of the appeal.
Nor does the circumstance that the appellant is non Italian speaking matter. Not only because nothing is attached in this regard, as to the lack of knowledge of the language Italian language, even in the face of facts committed in Italy (in violation of the clear burden of allegation: Sez. 2, no. 17708 of 31/01/2022, Rv. 283059), but also and especially since, in any case, it would have been the appellant's burden to provide himself with an interpreter, precisely in order to fulfill the supervisory obligations that, in any case, incumbent on the party.
In conclusion, the appeal must be declared inadmissible and the appellant
ordered to pay the costs of the proceedings and to pay the sum of three thousand euros in favor of the Fine Fund.
P.Q.M.
Declares the appeal inadmissible and orders the appellant to pay the
court costs and the sum of three thousand euros in favor of the Fine Fund.
fines.
So decided on December 19, 2023