A legitimate impediment in appellate chamber hearing: if the defense counsel could not reach the appellate court due to the hijacked plane the trial must be postponed, since a trial without counsel is an unfair trial.
The forms of exercise of the right of defense may be differently modulated in relation to the characteristics of each proceeding, as long as the purpose and function of that right are nevertheless assured. And the European Court of Human Rights has also, on several occasions, emphasized the need to ensure a fair trial for the accused, in the perspective outlined in Article 6 ECHR.
It is an unfailing condition that the possibility of an adequate exercise of the right of defense be ensured in any case, in any procedural form and at any procedural stage. This conclusion is all the more compelling where the regiudicanda is at the decisional stage and therefore the merits of the charge are being discussed, as in the abbreviated trial, which, both at first instance and on appeal, gives the judge full cognizance of the merits of the charge, with the consequent need to examine thoroughly and subject to adequate dialectical scrutiny, in the contradictory process of the parties, every finding acquired.
Article 24, second paragraph, Const. sanctions the inviolability, at every stage and level of the proceedings, of the right of defense; and Article 111, second paragraph, Const. sanctions the right to cross-examination: a constitutionally oriented interpretation therefore requires the presence of the defense counsel who has manifested the will to buy even at the chamber hearings..
Supreme Court
sec. VI Criminal, ruling Oct. 21, 2015 - March 11, 2016, no. 10157
President Ippolito - Rapporteur Di Salvo
Held in fact
1. C.C. appeals in cassation against the judgment indicated in the epigraph, by which the sentence of conviction issued in the first instance was confirmed, regarding the crime referred to in Article 319-quater of the Criminal Code.
2. The appellant alleges, with the first plea, violation of the law and failure to state reasons, for having the Court of Appeal rejected the request for postponement of the hearing of November 6, 2014,despite the legitimate impediment of the defense counsel, who, although he had decided to attend the hearing, found himself absolutely unable to appear, as he was stuck first at the airport of (? ), then at the airport of (omissis), as the flight to Cagliari had first been suspended and then diverted, due to adverse weather conditions, which had led the Civil Protection to exceptional interventions.
2.1. In the second plea, it is argued that there was an unjustified rejection of the request for a renewal of the trial investigation, in order to proceed with an expert opinion on the defendant and, if he had consented, also on the offended person, T. , for ascertaining the truth, as the Court of Appeals erroneously held that this was not valid and reliable scientific-technical evidence.
2.2. In the third plea, it is argued that the request to view the DVD on file was unjustified, since it was the footage relating to the alleged moment of induction, as viewing the DVD would have shown the non-existence of the findings to T.'s statements .
2.3. With the fourth plea, the appellant complains of the unjustified rejection of the defense's request to acquire the records of incoming and outgoing telephone calls from the telephone in use by the defendant,in the days preceding the complaint filed by T. , in order to ascertain, in the relations between the latter and C. , which of the two had called the other and with what frequency.
2.4. In the fifth ground, it is alleged unjustified rejection of the defense's request for a comparison between T. , whose reliability does not appear to have been adequately examined by the territorial court, and C. , on the basis of the apodictic assertion, merely conjectural in nature, that the versions, which differed between them, would remain so.
2.5. In the sixth plea, it is alleged that Article 319-quater of the Criminal Code has been misinterpreted, due to the existence of an evidentiary and motivational gap on the decisive circumstance of whether C. had been given a professional assignment by T., consisting in the preparation of the appeals, or whether it was the defendant who induced T. to pay a sum for an activity the latter did not want and suffered, for fear of negative consequences, which the defendant could have caused against him, in relation to the irregularities found during the inspection by labor inspectors. The appeals prepared by C. were in fact technically well drafted and fit for purpose, finding their basis in Article 18 l. Nov. 24, 1981, No. 689. Unjustifiably, according to the appellant, the defense's request for an expert opinion on the legal validity of the appeals themselves was also disregarded. The consulting work performed by C. was also lawful, requiring only the Ministry's authorization, the lack of which only constituted extremes of disciplinary offense. And, in any case, from the lack of authorization could not be inferred the existence of malice in the offense under consideration, not least because C.'s promise to get the file “on his table” related only to T.'s request for certainty about the protocol. And in any case, T. had been denied by C. , who had provided objective feedback to the defendant's assumption. Unjustifiably, in this regard, the territorial court stated that, given that the C. -Co. were much closer than those between C. and T. , this circumstance compromised the impartiality of Co. .
2.6. Further logical leap can be identified in the fact that the Court of Appeals considered that the parties were not on equal footing, while it is proven that the relations between the two were friendly and T. only asked C. for a professional service, for which the latter had asked for a fee below the minimum fees, as shown by the expression, in Neapolitan slang, used by the defendant (“for stamps”).
2.7. Finally, the denial of general extenuating circumstances is criticized, unjustifiably based on the fact that the extenuating circumstances under Article 323-bis of the Penal Code were granted.
2.8. For this last mitigating circumstance, too, the sentence should have been decreased to a greater extent, since the Court of Appeal's assertion about an alleged intensity of intent has no real significance.
Therefore, annulment of the appealed judgment is sought.
Considered in law
1. The first ground of appeal is well-founded. In the present case, in fact, it is uncontroversial that the defense counsel was unable to attend the hearing, set before the Court of Appeals, pursuant to the combined provisions of Articles 443, paragraph 4, and 599 of the Code of Criminal Procedure, (given that, at first instance, the trial had taken place in the forms of the abbreviated procedure), due to a legitimate impediment, of an absolute nature, in that it was determined by the adverse weather conditions, which had prevented him from reaching (?). This legitimate impediment was represented, on the day of the hearing, to the Court of Appeals, which, without contesting its existence, rejected the request for postponement, on the basis of the assertion that, in proceedings in chambers, only the legitimate impediment of the defendant is relevant and not also that of the defense counsel, who is heard only if he appears. The territorial court therefore decided in accordance with the jurisprudential orientation for which the inability of the defense counsel to attend the in camera hearing does not constitute grounds for postponing it. According to this hermeneutic direction, in fact, once the ritual communications and notifications have been carried out, the necessary participation of the public prosecutor and the defense counsel is not provided for, for reasons of speed and concentration,intrinsic to the nature of the proceedings, so that any impediment of the latter does not constitute grounds for postponement, provided that there is no need to proceed with the renewal of the trial investigation (Cass, Sec. 5, 17-21998, Gulinello, Rv. 211515; Sec. 5, 22-11-1999, Patalano, Rv.215482). With this in mind, it has in fact been affirmed that cross-examination is ensured, as for the defense counsel, by the notification of the notice of the hearing, with the consequent irrelevance of the absence of the defense counsel himself, even if caused by a legitimate impediment (Cass., Sec. 6, no. 14396 of 19-2-2009, Leoni, Rv. 243263). Hence, the nullity of the proceedings for failure of the defense counsel to appear follows exclusively from the failure to serve the notice of hearing (Cass., Sect. 6, No. 40542 of 23-9-2004, Di Gregorio, Rv.230260; Sect. 5, No. 36623 of 16-7-2010, Borra, Rv. 248435). The orientation was validated by the Joint Sections, which affirmed that the provision of Article 486, paragraph 5 (now Article 420-ter), Code of Criminal Procedure, under which the judge provides for the suspension or adjournment in case of legitimate impediment of the defender, does not apply to proceedings in chambers, which are conducted with the forms provided by Article 127 of the Code of Criminal Procedure (Sez. U., No. 7551 of 8-4-1998, Cerroni, Rv.210796): not even to those for which the presence of the defender is provided for as necessary, succouring, in such a case, the rule dictated by Art. 97,paragraph 4, Code of Criminal Procedure (Sec. U., No. 31461 of 27-6-2006, Passamani, Rv. 234145). This orientation is so well-established as to be qualified by the United Sections, which more recently addressed the issue, as “living law” (Sect. U., no. 15232 of 30-10-2014, Tibo, Rv. 263022).
In deference to these principles, the territorial court therefore ordered to proceed further, reaching, on the same day, the issuance of the appealed judgment.
2. Well, from the summary of the grounds of appeal, just indicated, it is easy to deduce the unquestionable complexity of the regiudicanda and the technicality of the questions posed by it, which undoubtedly made very pregnant the need for a contribution to the dialectic of the trial by the defense counsel, aimed at a broad explication of the cross-examination, as a function of guarantee of the defendant. Therefore, it cannot be denied that the defense counsel's absence has caused a potential impairment of the right of defense. It is therefore necessary to ask whether this can be considered justified in light of a proper application of the general norms and principles of the system.
3. It is necessary to start from the observation that it is constant jurisprudence of the court of laws that the forms of exercise of the right of defense may be differently modulated in relation to the characteristics of each proceeding, as long as the purpose and function of that right are in any case assured (Constitutional Court, No. 321 of 2004; No. 106 of 2015). And the European Court of Human Rights has also, on several occasions, emphasized the need to ensure that the defendant, from the perspective outlined in Article 6 ECHR, has a fair trial (EDU Court, 8-12-2009, Previti v. Italy; 611-2007, Hany v. Italy). It is therefore an unfailing condition that the possibility of an adequate exercise of the right of defense be ensured in any case, in any procedural form and at any procedural stage. This conclusion is all the more compelling where the regiudicanda is at the decisional stage and therefore the merits of the charge are being discussed, as in the abbreviated trial, which, both at first instance and on appeal, gives the judge full cognisance of the merits of the accusation, with the consequent need to examine in depth and subject to an adequate dialectical scrutiny, in the contradictory process of the parties, every finding acquired.
Moreover, with regard specifically to the chamber judgment of appeal, Article 2, No. 93), Law No. 81 of February 16, 1987 (Legislative delegation to the Government of the Republic for the enactment of the new Code of Criminal Procedure) provides that the latter must take place, when the appeal has as its object exclusively the species or measure of the sentence, the granting of general mitigating circumstances, the applicability of substitute sanctions or the granting of legal benefits,in the cross-examination of the parties. A fortiori, the need for cross-examination is to be considered inescapable when the decision has as its object the responsibility of the accused, the legal qualification of the fact and any other question of merit. And it seems difficult to argue that, where it is assumed that the defendant's legitimate impediment to appear is irrelevant, the adversarial process may not be deemed to be vulnerable.
3.1. This conclusion appears even more corroborated when one considers that Article 420,paragraph 1, Code of Criminal Procedure provides, in relation to the preliminary hearing, although the latter has a chamber nature, for the necessary participation of the defendant's defense counsel. Well, if it is considered by the law as indefectible in relation to a procedural stage in which the object of the decision consists exclusively in establishing the merits or otherwise of the request for trial formulated by the prosecutor (Constitutional Court, no. 185 of 2001), prearranged only for a possible indictment of the defendant and therefore for a decision in ritito, it cannot but be considered an aporia that, when the object of the decision is the merits of the regiudicanda, the hearing may take place without the participation of the defense counsel,all the more so where an absolute impediment dependent on force majeure is in evidence, as in the case in question.
And in fact, from this perspective, it has been held in case law that, following the entry into force of Law No. 479 of December 16, 1999, there are normative prerequisites for a reconsideration of the problem, since Article 486 of the Code of Criminal Procedure has been repealed, on the defendant's or defense counsel's impediment to appear at the trial hearing, and introduced Article 420-ter of the Code of Criminal Procedure, which extends the rule of postponement due to absolute,legitimate impediment of the defense counsel to the preliminary hearing stage as well. With these amendments, it was intended to protect, with equal rigor and without distinction of any kind, both in the in camera proceedings and in the trial stage, the effectiveness of the cross-examination and the defendant's right of defense, also in light of the newly amended Article 111 of the Constitution. Consequently, according to this jurisprudential orientation, the provision of Article 420-ter of the Code of Criminal Procedure, for which the preliminary hearing must be postponed in case of legitimate impediment of the defense counsel, finds application, by identity of ratio, also in the appellate chamber proceedings (Cass., Sec. 2, No. 13033 of 11-10-2000, Matranga, Rv. 217507).
4. Nor could an argument to the contrary be made on the basis of the provision of Article 127, paragraph 3,Code of Criminal Procedure, referred to by Article 599, paragraph 1, Code of Criminal Procedure, under which defense counsel are heard if they appear. In fact, this norm merely sanctions the right of the defense counsel, undoubtedly coessential to the founding lines of the accusatory system, to shape his or her trial attitude to the chosen defense strategy and thus to decide whether or not to appear at the in camera hearing, without his or her failure to appear determining any procedural consequences. But, once the defense counsel has opted for a defensive line of defense involving appearance at the chamber hearing, this choice cannot be thwarted by events constituting force majeure and wholly independent of his will, which materially prevent him from attending the hearing. The compression of the right of defense that is undeniably determined in this case, does not appear justifiable with the preservation of the requirements of celerity and streamlining inherent in the chamber procedure, which cannot prevail over fundamental instances of guarantee of the defendant, inescapable whatever the procedural form adopted.
This would be tantamount, moreover, to precluding the operation of the provision of Article 127, paragraph 3, of the Code of Criminal Procedure, which in any case gives the defense counsel the right to intervene, without the latter being inhibited by anything.
4.1. Nor is it tenable that the contrary interpretation finds a basis in the provision of Article 599, paragraph 2, of the Code of Criminal Procedure, since it cannot be held that this provision,by providing for the postponement of the hearing in the case of a legitimate impediment of the defendant, who has manifested the will to appear, implicitly excludes that the postponement can be ordered in the presence of a legitimate impediment of the defender. Article 599,paragraph 2, Code of Criminal Procedure, in fact, is a rule completely unrelated to the issue inherent in the legitimate impediment of the defender, as can be seen from the textual tenor of the provision,in which there is no reference to the latter figure. In fact, the provision regulates an entirely separate profile, namely that inherent in the defendant's legitimate impediment. Nor are there any elements of a logical-systematic nature on the basis of which to believe that art. 599, paragraph 2,cod. proc. penale regulates, in exhaustive terms, the entire issue of the legitimate impediment of private parties, nothing authorizing the extension of the preceptive scope of the rule beyond the issue inherent in the legitimate impediment of the defendant alone. Therefore, no argument can be derived from it either in favor of or against the hermeneutic option regarding the relevance of the absolute impediment to appearance of the defense counsel, in chamber judgments, which finds its direct normative referent exclusively in the combined provisions of articles 599, paragraph 1,and 127 of the Code of Criminal Procedure.
5. In truth, a significant reconsideration of the issue is envisaged in the judgment of the Joint Sections, which, most recently, dealt with the problem of the defender's adherence to the abstention deliberated by the professional bodies (Sez. U. no. 15232 of 30-10-2014, Tibo, cit.).
And in fact, the Joint Sections have suggested the existence of doubts about the constitutionality of the majority interpretative thesis, although they considered the issue irrelevant to the issue at hand, given that the adherence of the defender to the abstention does not fall under the notion of legitimate impediment.
The question of the constitutional legitimacy of Article 599 of the Code of Criminal Procedure was raised by Order No. 617 of May 15, 1997 (in G.U., No. 40, first special series,year 1997), by the Court of Appeal of Rome, called upon to decide precisely on a request for postponement of the proceedings in chambers, instituted following an appeal against a sentence pronounced at the end of an abbreviated trial.
This question was declared inadmissible by the Constitutional Court but only because it did not appear to have been formulated in unambiguous terms, since the judge a quo, oscillating between the request for the extension to the in camera appeal proceedings now of Article 486, paragraph 5, of the Code of Criminal Procedure and now of Article 420, paragraph 3, of the Code of Criminal Procedure, had put forward two possible solutions, of far from equivalent scope (Constitutional Court, no. 373 of 1998).
The Constitutional Court therefore did not enter into the merits of the question. And, in this respect, it cannot fail to observe how it does indeed appear difficult to deny that, in the hermeneutic option taken up by the dominant jurisprudence, the combined provisions of Articles 127, paragraph 3, 443, paragraph 4, and 599 of the Code of Criminal Procedure lend themselves to doubts of constitutionality, due to conflict with Article 24, second paragraph, of the Constitution, which enshrines the inviolability, at every stage and level of the proceedings, of the right of defense; and with Article 111, second paragraph, Const. which enshrines the right to cross-examination.
In fact, it seems difficult to consider manifestly unfounded a question of constitutionality inherent in a regulatory architecture that allows the holding of a hearing, in which the merits of the accusation raised against the defendant are discussed, in the absence of the legitimately impeded defense counsel, who has requested the postponement, due to the overt impossibility of appearing.
5.1. However, before opting for an incident of constitutionality, it is necessary to ask whether the path of a constitutionally oriented interpretation is not viable. It is in fact well established, in this regard, in constitutional jurisprudence, the principle that where a rule is susceptible to different interpretations, the judge is obliged to adopt an adaptive interpretation, excluding the hermeneutic option likely to give rise to doubts of constitutionality and favoring the interpretative solution that places the rule certainly in line with the constitutional parameters. So much so that the failure of the judge a quo to preliminarily verify the feasibility of a hermeneutic choice other than the one underlying the doubt of constitutionality raised and such as to neutralize it, entails the inadmissibility of the question of constitutional legitimacy, possibly raised (Constitutional Court, no. 287 of 2011; Sentence no. 192 of 2007).
Well, the considerations just formulated lead to believe that the hermeneutic orientation according to which the combined provisions of Articles 127, paragraph 3, 443, paragraph 4, and 599 of the Code of Criminal Procedure attach relevance to the legitimate impediment of the defender even in proceedings in chambers, in addition to eliding any doubt of constitutionality,resulting fully in accordance with the dictate of Articles. 24 and 111 Const, is imposed by the reasons of logical-systematic order illustrated above and does not, moreover, encounter any textual obstacle.
In particular, the wording of Article 127, paragraph 3, of the Code of Criminal Procedure, according to which defense counsel are heard “if they appear,” certainly does not preclude but rather favors the interpretation according to which participation in the hearing of the defense counsel is optional but the defense counsel nevertheless has the right to appear. Therefore, where the defender fails to appear, without alleging any legitimate impediment, the proceeding undoubtedly runs its course, without the defender's failure to appear resulting in an obligation to provide pursuant to Article 97, paragraph 4, of the Code of Criminal Procedure or any other procedural consequence.
Where, on the other hand, the defense counsel promptly represents his or her intention to appear and documents a legitimate impediment, in support of the request for postponement, the judge is obliged, in the presence of all legal conditions, to so order.
6. In conclusion, it must be held that the defender's legitimate impediment assumes relevance also in proceedings in chambers and, in particular, in the chamber judgment of appeal,ex art. 599 of the Code of Criminal Procedure, following an abbreviated trial, held in the first instance.
7. The appealed judgment must therefore be annulled without referral, with transmission of the acts to the Court of Appeal of Cagliari, for trial. This rescinding epilogue determines the superfluity of the examination of the further grounds of appeal.
P.Q.M.
Annuls the appealed judgment without referral and orders the acts to be transmitted to the Cagliari Court of Appeal for trial.