JUDGMENT NO. 12

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of: President: Giovanni AMOROSO; Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,
has pronounced the following

JUDGMENT

in the constitutional legitimacy review proceedings concerning Article 225, paragraph 2, of the Code of Criminal Procedure, in relation to Articles 102 and 107, paragraph 3, letter d), of the Decree of the President of the Republic of May 30, 2002, No. 115, containing the "Consolidated Text of Legislative and Regulatory Provisions on Justice Costs. (Text A)”, promoted by the Court of Assizes of Rome, First Section, in the criminal proceedings against S. T., M.I. A.K., H. U. and A.S. M.I., with order of October 23, 2025, registered under no. 218 of the register of orders in 2025 and published in the Official Gazette of the Republic no. 46, first special series, of the year 2025.

HAVING SEEN the deeds of appearance of S. T., M.I. A.K., H. U. and A.S. M.I., as well as the deed of intervention of the President of the Council of Ministers;

HAVING HEARD Judge Rapporteur Maria Rosaria San Giorgio at the public hearing of January 14, 2026;

HAVING HEARD the lawyers Anna Lisa Ticconi for A.S. M.I., Paola Armellin for S. T., Tranquillino Sarno for M.I. A.K., Filomena Pollastro for H. U., as well as the State Attorney Maurizio Greco for the President of the Council of Ministers;

DELIBERATED in the council chamber on January 14, 2026.

Facts of the Case

1.– With order of October 23, 2025, registered under no. 218 of the register of orders in 2025, the Court of Assizes of Rome, First Section, raised questions of constitutional legitimacy concerning Article 225, paragraph 2, of the Code of Criminal Procedure, in relation to Articles 102 and 107, paragraph 3, letter d), of the Decree of the President of the Republic of May 30, 2002, No. 115, containing the "Consolidated Text of Legislative and Regulatory Provisions on Justice Costs. (Text A)”, in the part where, "by allowing private parties to appoint a technical consultant at the expense of the State where an expert opinion has been admitted, it refers to the discipline of legal aid, specifically Articles 102 and 107, which, in turn, subordinate the appointment and the consequent advance payment by the Treasury to admission to legal aid, thereby not allowing the appointment of a technical consultant, with expenses advanced by the Treasury, by the court-appointed defense counsel assisting an accused person declared absent pursuant to Article 420-bis, paragraph 3, of the Code of Criminal Procedure”, in the hypothesis added by this Court’s judgment no. 192 of 2023.

In the opinion of the referring court, the alleged normative omission violates Articles 3, first paragraph, 24, second paragraph, 111, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 6, paragraph 3, letter d), of the European Convention on Human Rights.

1.1.– Regarding the facts, the referring panel states that it must adjudicate on the criminal liability of S. T., M.I. A.K., H. U., and A.S. M.I., accused of the abduction of the Italian researcher Giulio Regeni and, as regards A.S. M.I. alone, of aggravated personal injury and homicide, for having inflicted severe and widespread injuries upon him, through cruel acts and violent means, until causing his death.

The referral order recalls that, after the same Court of Assizes of Rome, on January 14, 2022, declared the nullity of the *vocatio in iudicium* on the premise that there was no proof that the accused persons had knowledge of the proceedings and had therefore voluntarily absented themselves from the trial, this Court, ruling on the issues raised in the same referring proceedings by the Preliminary Hearing Judge of the Ordinary Court of Rome, with Judgment No. 192 of 2023, declared the unconstitutionality of Article 420-bis, paragraph 3, of the Code of Criminal Procedure, "insofar as it does not provide that the judge shall proceed in absentia for crimes committed through acts of torture defined in Article 1, paragraph 1, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in New York on December 10, 1984, ratified and enacted by Law of November 3, 1988, No. 498, when, due to the lack of assistance from the accused person’s State of nationality, it is impossible to ascertain that the latter, despite being aware of the proceedings, has been informed of the pendency of the trial, without prejudice to the right of the accused person to a new trial in person for a review of the merits of the case.”

Following this ruling, the Preliminary Hearing Judge declared the accused persons absent and ordered a new referral to trial. On February 20, 2024, the referring Court of Assizes opened the trial proceedings, during which numerous witnesses were heard and summaries of testimony taken during preliminary investigations were acquired.

The investigative activities – the referring panel explains – took place in the continued absence of the accused persons, whose defense counsel, appointed pursuant to Article 97, first paragraph, of the Code of Criminal Procedure, repeatedly lamented that the lack of any contact with their clients seriously prejudiced the exercise of their right to reply to the articulated body of evidence, oral and documentary, introduced by the Public Prosecutor and the civil parties, to whom the initiative of investigation was in fact reserved.

The defense counsel for the accused persons also denounced a "positional deficit,” as a result of which their defense activity was reduced to searching for "any intrinsic contradictions compared to a procedural initiative entirely entrusted to the opposing parties,” to summoning a few Italian witnesses already identified during the investigations by the Public Prosecutor or heard by the Parliamentary Commission of Inquiry into the death of Giulio Regeni, and "to seeking the consent of others, freely given, in order to obtain the acquisition of deeds from the investigation file pursuant to Article 493, paragraph 3, of the Code of Criminal Procedure, so as to extend the Court’s evaluative horizon.”

The referring court adds that on December 12, 2024, it proceeded to the acquisition, by reading pursuant to Article 512-bis of the Code of Criminal Procedure, of the records of the statements made by the Egyptian trade unionist M.M. A.S. on April 11, 2016, and again on May 10, 2016, before the "Egyptian Authority,” and since these documents arrived in Arabic, it appointed an expert for their translation.

At the hearing of April 8, 2025, the Public Prosecutor contested the partiality and incorrectness of the expert report, requesting that the translation be renewed in adversarial proceedings with his own consultant.

After the new report was filed, the expert was summoned to the hearing of July 15, 2025, to provide clarification.

Subsequently, with order of September 17, 2025, the referring panel, having noted significant uncertainties and contradictions, ordered a new translation by appointing another expert in the Arabic language, "given the delicacy and centrality of the content of the records” in question.

After the reading of the order renewing the expert investigation, the Public Prosecutor confirmed the appointment of the previous consultant, the civil parties reserved their position on the matter, and the defense counsel for the accused persons requested admission to appoint their own consultants, simultaneously arguing the unconstitutionality of the provisions under review.

1.2.– The same defense counsel – adds the referring judge – stated that they were unable to apply for admission to legal aid at the State's expense because, lacking any contact with their clients, they could not even inform them about the conditions for accessing the benefit.

The referring panel considers these statements credible, as the factual situation leading to the impossibility for court-appointed counsel to communicate with the accused persons, attributable to the refusal of cooperation by the Egyptian State, remained unchanged even during the trial proceedings.

Indeed, the sending, by the Arab Republic of Egypt, on June 17, 2024, of a note illustrating the reasons why it did not intend to proceed with the letter rogatory requested by the Public Prosecutor at the Court of Rome through diplomatic channels, aimed at summoning certain witnesses pursuant to Article 9 of the New York Convention against Torture, would be symptomatic.

The refusal of judicial assistance was motivated – notes the referring judge – by the need not to contravene Article 454 of the Code of Criminal Procedure, which, by prohibiting the trial of a person twice for the same act, expresses a constitutional principle "as it is linked to human rights to which both Egypt and Italy adhere.”

Ultimately, according to the referring judge, the intention to interrupt all collaboration, manifested by the Egyptian authorities, first with the dismissal order (memorandum of December 26, 2020) and subsequently with the refusal to notify the witness summons, makes the impossibility for the defense counsel of the accused persons to communicate with their clients in order to agree on a procedural strategy, and also to inform them of the conditions to access legal aid at the State’s expense, highly credible.

This situation simultaneously prevented the Public Prosecutor from fulfilling the "instrumental obligation” – which, pursuant to Article 103 of the Consolidated Text on Justice Costs, arises in the event of the appointment of court-appointed counsel – to inform the accused persons of the possibility of accessing legal aid at the Treasury's expense and of the obligation to remunerate the counsel if the prerequisites for availing oneself of this institution are not met.

However, the referring judge clarifies that what the defense complains about is not the impossibility of admission to legal aid at the State's expense *per se*, being aware that court-appointed counsel is still guaranteed remuneration by Articles 116 and 117 of the Consolidated Text on Justice Costs, through the payment of fees and expenses, even if minimally compensatory in this case, where the trial is proving particularly complex and burdensome.

What the defense counsel for the accused persons complain about – emphasizes the referring panel – is "the current impossibility of proceeding to the appointment of their own consultant […] with whom to ensure the adversarial process during the renewal of the translation expert report,” on the correct premise that "such faculty is reserved and limited to the court-appointed counsel of accused persons admitted to free legal aid.”

Therefore, the objections raised by the Public Prosecutor and the civil parties, according to which the exception of unconstitutionality raised by the defense counsel of the accused tends to "dismantle” the entire system of legal aid at the State's expense by introducing a *iuris et de iure* presumption that access to the benefit is guaranteed whenever a court-appointed counsel is appointed, regardless of proof of the income requirements prescribed by law, would not hit the mark.

1.3.– The referring judge then proceeds to reconstruct, including through extensive references to the jurisprudence of this Court, the normative genesis of the recognition of the right of the accused to the assistance of a technical consultant, as an expression of the constitutionally protected right to defense (citing judgments No. 217 of 2019, No. 178 of 2017, No. 33 of 1999, and No. 149 of 1983).

It is particularly highlighted that, under the current legislation, only if the accused person is admitted to legal aid at the State's expense is the technical consultant's fee directly paid by the judge pursuant to Article 83 of the Consolidated Text on Justice Costs, which grants the expert an independent title against the Treasury, without the court-appointed counsel having to advance the relevant amount.

Nor would the technical consultant's fee fall within the reimbursable expenses pursuant to Articles 116, paragraph 1, and 117, paragraph 1, of the Consolidated Text on Justice Costs, so that nothing would be due to the court-appointed counsel who advanced the amount, as it is not an expense in the technical sense.

1.4.– Regarding relevance, the referral order notes that the appointment of a party consultant "is well suited” to the case at hand, where there is a need to entrust the translation of a document into Arabic to an Arabic language interpreter through an expert opinion.

Following the renewal of the expert mandate, the defense counsel for the accused persons requested to be admitted to appoint a party consultant, so that the commencement of the expert activities would be conditioned on the decision regarding their right to avail themselves of their own translator and, therefore, on the constitutional legitimacy issues raised, given that the legal system does not allow them to exercise the right to technical defense in the manner proposed.

As to non-manifest groundlessness, the referring judge first clarifies that the identified impossibility is not factual but normative, since the defense counsel for the accused could well appoint their own technical consultants, but would have to do so at their own expense, as they cannot recover the costs either from the clients, residing at unknown addresses, since the Egyptian State refused to provide information in this regard; nor from the Treasury, as it is not a reimbursable expense to the court-appointed lawyer.

The alternative to conducting a defense "conditioned and diminished” compared to the defense possibilities available to the other parties, public and private, would therefore be bearing an "unjustified” economic burden.

Yet, the referring judge observes, the *ratio* that has consistently inspired the constitutional jurisprudence in this matter is that of activating the inviolable right to defense also through the appointment, "where deemed necessary,” of the technical consultant to safeguard "a real dialectic of positions,” also ensuring its quality.

And it is precisely because of the relevance of technical assistance to the right to defense that the party lacking sufficient economic means can resort to legal aid at the State's expense, especially considering that the Public Prosecutor can use experts in the most varied sectors without limitations arising from economic burdens (referencing this Court's judgments No. 96 of 2024, No. 73 of 2022, and No. 178 of 2017).

The referring judge believes that the violation of the defendants' defense – which can only benefit from a faculty of initiative absolutely reduced and unbalanced compared to the remaining parties – cannot be remedied by the possibility for the accused persons themselves – expressly saved by this Court’s Judgment No. 192 of 2023 – to obtain, in case of appearance, the reopening of the trial in person and the review of the merits of the case.

In fact, given that the appearance of the accused persons in the trial is only a virtual eventuality, there is no reason why their respective defense counsel should not be able, within the scope of the ongoing trial, to avail themselves of faculties permitted by the legal system, upon removal of the limitations that prevent their exercise, so as to prevent the trial from being reduced to a "facsimile with reduced guarantees.”

Nor, in the opinion of the referring judge, can it be denied that, in the event of a conviction of one of the accused, the relevant defense counsel would be unable to file an appeal intended to review the evidentiary issues, given the requirement, pursuant to Article 581, paragraph 1-quater, of the Code of Criminal Procedure, to have, under penalty of inadmissibility, a specific mandate, which would encounter "the same current limits.”

The doubts of constitutional legitimacy could not be overcome through an interpretation consistent with the Constitution, having regard to the unequivocal wording of Article 225, paragraphs 1 and 2, of the Code of Criminal Procedure, which, while abstractly allowing the defense, including court-appointed defense, to appoint a technical consultant, in cases such as the present one, where it is impossible to request admission to legal aid at the State's expense, requires the defense counsel to bear the economic burden of the assignment or renounce it.

The referring judge further believes that the fact that the patrimonial conditions of the accused persons are not ascertainable in this case is irrelevant, because what is requested is not admission to legal aid at the Treasury's expense "subject to ascertaining the existence of income requirements,” but rather the advance payment by the State of the costs under Article 107 of the Consolidated Text on Justice Costs, which would subsequently recover them from the accused according to the mechanism outlined in Articles 116, paragraph 2, and 117, paragraph 2, of the aforementioned consolidated text, "subject to future admission to legal aid in their favor.”

In the opinion of the referring judge, the impugned discipline therefore entails an evident impairment of the right to defense of the accused, without this breach being considered balanced by the needs of containing public expenditure.

It is further pointed out that the challenge does not concern the entire regime of legal aid at the Treasury's expense, but must be confined to Article 225, paragraphs 1 and 2, of the Code of Criminal Procedure, in the part where, by granting parties the faculty to appoint their own consultant in cases where an expert opinion has been ordered, it grants them the right to be assisted by a consultant at the State's expense only if the conditions provided for legal aid for the indigent are met, and therefore under the conditions imposed by Articles 102 et seq. of Presidential Decree No. 115 of 2002, which, in this case, cannot apply, as the accused persons have not even been informed of the possibility of benefiting from the service.

The "intended effect” pursued by the referring court would ultimately be that of placing the cost of technical consultancy upon the State, as an advance payment, pursuant to Article 107, paragraph 3, letter d), of the Consolidated Text on Justice Costs, but outside the income requirements imposed by the legal aid discipline for the indigent.

According to the referring judge, the discipline under review would also lead to the violation of the principles of equality and parity of the parties.

If, in fact, the Public Prosecutor can avail himself of the best experts without economic limitations and can choose his technical consultant without the latter being able to decline the assignment, the defense counsel of a party not admitted to legal aid at the State's expense – because they are not informed or cannot be informed of the relevant right – who nevertheless wishes to appoint a consultant at their own expense, might be met with a refusal "motivated by the foreseeable smallness” of the fee "payable” to the same.

This "factual disparity,” in addition to infringing the right to defense, would introduce a significant substantive disparity between the procedural parties, contrary to Article 111, second paragraph, of the Constitution.

Finally, Article 117, first paragraph, of the Constitution would be violated, in relation to Article 6, paragraph 3, letter d), of the ECHR, as interpreted by the jurisprudence of the European Court of Human Rights (citing ECtHR, First Section, judgment of March 27, 2014, Matytsina v. Russia; First Section, judgment of April 24, 2014, Duško Ivanovski v. the former Yugoslav Republic of Macedonia), where it emphasized the right of the accused to the admission of scientific evidence and highlighted the "unfairness of procedures that led to the applicants' convictions due to the failure to admit such evidence, prejudicing the defense's ability to challenge the prosecution on equal terms.”

2.– On December 1, 2025, the court-appointed counsel for the accused persons in the referring proceedings filed separate deeds of appearance in the present proceedings, of identical content, in the interest of their respective clients, requesting the acceptance of the raised questions of constitutional legitimacy.

As a preliminary matter, the defense counsel represented that they were not in possession of the special power of attorney prescribed by Article 3 of the Supplementary Provisions for Proceedings before the Constitutional Court, due to the objective impossibility of obtaining it from their respective clients.

They then invoked Article 12 of the Supplementary Provisions, according to which this Court rules on preclusions or forfeitures that have occurred for reasons not attributable to the parties, requesting a balancing act to avoid that "rigid procedural formalism may result in a denial of justice, especially when fundamental rights such as the right to defense are at stake.”

In fact, the cited provision should not apply only in cases of *casus fortuitus* and force majeure, but should be extended to any situation of objective and insurmountable impossibility, not attributable to the negligence of the party, to fulfill a procedural obligation.

Moreover, it is observed that the purpose of Article 12 of the Supplementary Provisions is to "ensure the effectiveness of judicial protection and the fullness of the adversarial process, preventing circumstances not attributable to the accused from leading to an irreparable breach of defense.”

In the present case, the defense counsel for the accused persons emphasize that the impossibility of producing the special power of attorney results neither from negligence nor from a choice made by the parties or their counsel, but from the lack of assistance by the State of nationality of the accused persons.

On the merits, the parties advanced arguments overlapping with those articulated by the referring judge.

In addition, they contended that the challenged discipline conflicts with Article 3 of the Constitution also under the aspect of unreasonableness, given that it is "intrinsically contradictory” for the legal system, on the one hand, as a result of this Court’s Judgment No. 192 of 2023, to create an exceptional procedural mechanism to prevent the non-cooperation of a foreign State from resulting in an "*extra ordinem* factual immunity,” and, on the other hand, to omit to provide the necessary tools to make that trial effective and just.

It is also observed that the situation of the present accused persons is not that of an "ordinary absent person” who, having knowledge of the *vocatio in iudicium*, voluntarily chooses not to participate.

Indeed, it is a *fictio iuris* created to overcome a "procedural impossibility.” This situation could not be subjected to the same and "inadequate” rules applicable in cases of voluntary absence of the accused, which condition access to legal aid at the State's expense upon a personal request by the interested party.

3.– The President of the Council of Ministers intervened in these proceedings, represented and defended by the State Attorney's Office, requesting that the raised questions of constitutional legitimacy be declared unfounded.

According to the intervening party, the positive law already allows court-appointed counsel to recover from the State the sums advanced during the trial.

This would be, first and foremost, demonstrated by Articles 116, paragraph 1, 117, paragraph 1, and 82 of the Consolidated Text on Justice Costs, with which the rules on legal aid at the State's expense have been expressly extended also to the court-appointed counsel who is objectively unable to recover the fee and necessary expenses from his client to carry out the defense mandate.

The State defense refers to the jurisprudence of the Court of Cassation which has clarified that the aforementioned legal provisions, and specifically those provided for the absconding accused, which exempt the court-appointed counsel from the prior attempt to recover credit, apply both when the judicial authority has formally declared the unavailability of the suspect, the accused, or the convicted person, and when such formal declaration has been omitted, but the client is "in fact” unavailable. The intervention deed cites the Court of Cassation, Second Civil Section, judgment of November 17, 2011, No. 24104; Second Civil Section, orders of September 10, 2019, No. 22579, May 3, 2019, No. 11720, and February 26, 2019, No. 5609, Sixth Civil Section-2, order of December 19, 2017, No. 30484.

The intervening party also refers to Article 13, paragraph 10, of Law No. 247 of December 31, 2012 (New Regulation of the Legal Profession), according to which, in addition to the fee for professional services, the client owes the lawyer, in case of contractual determination, or through judicial liquidation, reimbursement of expenses actually incurred and all charges and contributions eventually advanced in the interest of the client.

The State defense further notes that, in the opinion of the referring judge, despite it not being known whether the accused persons possess the income requirements necessary to access legal aid at the State's expense, court-appointed counsel should be able to benefit from the advance payment in question under Article 117 of Presidential Decree No. 115 of 2002, "as if the accused were effectively admitted to the benefit (subject to the State's right of recourse against the accused should admission to the benefit not materialize).”

This approach is not shared by the State defense, which sees no reason to maintain that in the referring proceedings an exception can be made to the general rule according to which the benefit in question can only be granted if the conditions of indigence are met.

The solution proposed by the referring judge to remedy the alleged constitutional breach would itself be contrary to the Constitution and, in particular, to the principle of equality, since in every trial where the accused is declared absent, access to legal aid is permitted only if the income requirements required by law are met.

The special hypothesis of legal aid at the Treasury's expense advocated by the referring court, being detached from income requirements, would therefore be "exceptional and eccentric” with respect to the system outlined by Presidential Decree No. 115 of 2002.

Moreover, the intervening party observes, the constitutional jurisprudence itself has always highlighted the essential nature of verifying the income situation of the interested party for admission to the benefit in question (citing Judgment No. 119 of 2025).

Lastly, regarding the complaint under Article 117, first paragraph, of the Constitution, in relation to Article 6 ECHR, the State defense points out that none of the rulings of the European Court of Human Rights cited in the referral order have affirmed that the European Convention on Human Rights obliges States to recognize the benefit of legal aid at the Treasury's expense even to subjects who do not request it and even irrespective of their income status. Nor has the Strasbourg Court ever held that *ex post* reimbursement by the State of a sum advanced by the defense counsel results in an unlawful violation of the right to defense.

With a brief illustrative memorandum filed on December 22, 2025, the President of the Council of Ministers deferred to this Court regarding the issue of the lack of special power of attorney for the deeds of appearance of the accused in the referring proceedings and, on the merits, reiterated the conclusions set out in the intervention deed.

The intervening party emphasized that since the legislator has "inseparably linked” admission to legal aid at the State's expense to the concrete verification of the required income requirements, the acceptance of the questions of constitutional legitimacy would end up introducing into the legal system "a new hypothesis of the aforementioned benefit, unreasonably detached” from the verification of these prerequisites.

With reference to the alleged violation of supranational parameters, the State defense reiterated that from none of the ECtHR rulings cited by the referring court can the recognition of an absolute and inalienable right to a party technical consultant with advanced expenses by the State be inferred. Nor has the Strasbourg Court ever established that *ex post* reimbursement by the State of a sum advanced by the defense counsel results in an unlawful violation of the right to defense.

4.– On December 1, 2025, the Union of Italian Criminal Lawyers (UCPI) submitted a written opinion as *amicus curiae*, arguing in support of the complaints made by the referring court.

The opinion was admitted by presidential decree of December 10, 2025.

The document focuses in particular on the essential nature of the technical consultant's contribution for the effective participation of the accused in the adversarial process, highlighting how, in the present case, the impossibility for court-appointed counsel to avail themselves of the advance payment of expenses by the State is the direct consequence of the "lack of assistance from the State of nationality” which necessitated recourse to the "exceptional mechanism” of trial in absentia.

In the opinion of the *amicus curiae*, this results in an unreasonable violation of fundamental principles, since the condition that legitimizes the holding of the trial, namely the "obstructionism of the foreign State,” is the same one that "vitiates its correctness, irreparably impairing defense guarantees.”

The challenged discipline would also generate a patent and unreasonable disparity of treatment, as the possibility to fully exercise the right to defense through the assistance of a technical consultant would depend on a circumstance, the possibility of obtaining the interested party’s signature, made impossible by a factual situation not attributable to either the defense or the accused.

This would thus create a category of trials "with reduced guarantees,” in which the right to defense would be compressed not by reason of a considered choice by the legislator, but by a "defect of normative coordination” that produces discriminatory effects.

Considerations in Law

5.– The Court of Assizes of Rome, First Section, doubts the constitutional legitimacy of Article 225, paragraph 2, of the Code of Criminal Procedure, in relation to Articles 102 and 107, paragraph 3, letter d), of the Consolidated Text on Justice Costs, in the part where, "by allowing private parties to appoint a technical consultant at the State’s expense where an expert opinion has been admitted, it refers to the discipline of legal aid, specifically Articles 102 and 107, which, in turn, subordinate the appointment and the consequent advance payment by the Treasury to admission to legal aid, thereby not allowing the appointment of a technical consultant, with expenses advanced by the Treasury, by the court-appointed defense counsel assisting an accused person declared absent pursuant to Article 420-bis, paragraph 3, of the Code of Criminal Procedure” in the hypothesis added by this Court’s Judgment No. 192 of 2023.

The alleged normative gap determines the violation of Articles 3, first paragraph, 24, second paragraph, 111, second paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 6, paragraph 3, letter d), of the ECHR.

6.– In the main proceedings, concerning the ascertainment of the criminal liability of four officers of the Egyptian internal security service accused of the abduction, and as regards one of them, of aggravated personal injury and homicide of the Italian researcher Giulio Regeni, following this Court’s Judgment No. 192 of 2023, the trial phase has commenced in the continued absence of the accused persons.

6.1.– With the aforementioned ruling, this Court, deciding on issues raised by the Preliminary Hearing Judge in the context of the same proceedings in which the present constitutional challenge was promoted, declared the unconstitutionality of Article 420-bis, paragraph 3, of the Code of Criminal Procedure, in the part where it does not provide that the judge shall proceed in absentia for crimes committed through acts of torture defined in Article 1, paragraph 1, of the New York Convention against Torture (hereinafter, also: CAT, Convention Against Torture), when, due to the lack of assistance from the accused person’s State of nationality, it is impossible to ascertain that the latter, despite being aware of the proceedings, has been informed of the pendency of the trial, without prejudice to the right of the accused person to a new trial in person for a review of the merits of the case.

6.2.– From the referral order it appears that, during the trial proceedings initiated following this ruling, the referring panel ordered the renewal of the expert opinion concerning the translation of a document in Arabic deemed relevant for the judgment.

The defense counsel for the accused requested to be admitted to appoint a party consultant at the State's expense, simultaneously arguing the unconstitutionality of the technical consultancy discipline, in the part where, in the special hypothesis of trial *in absentia* outlined by the aforementioned Judgment No. 192 of 2023 of this Court, it does not provide for the advance payment of the relevant expenses by the State.

6.3.– The referring judge, sharing the doubts of constitutional legitimacy raised by the defense counsel for the accused, considers that the challenged provision, by determining the alleged normative gap, conflicts, first and foremost, with Article 24, second paragraph, of the Constitution, as, by not allowing the court-appointed counsel who cannot have any contact with their client to appoint a technical consultant with advance payment of expenses by the Treasury, it deprives the accused of an essential defense faculty safeguarding the effectiveness of the adversarial process.

The challenged provision would also conflict with Articles 3, first paragraph, and 111, second paragraph, of the Constitution, as it would involve an unjustified disparity of treatment between the Public Prosecutor, who can avail himself of the best experts without economic limitations and can choose his technical consultant without the latter being able to refuse the assignment, and the court-appointed counsel – of the accused person not admitted to legal aid at the State's expense, because "not informed and not able to be informed of the relevant right” –, who, if appointing a consultant at their own expense, might be met with a refusal "motivated by the foreseeable smallness” of the fee payable.

Finally, Article 117, first paragraph, of the Constitution would be violated, in relation to Article 6, paragraph 3, letter d), ECHR, as the failure to admit the accused to scientific evidence would prejudice the defense's ability to challenge the prosecution on equal terms.

7.– Preliminarily, it must be noted that the defense counsel for the accused persons in the referring proceedings filed deeds of appearance in the present proceedings, in the interest of their respective clients, despite being without the special power of attorney required by Article 3 of the Supplementary Provisions.

The same defense counsel nevertheless requested that the appearance of the represented parties be declared admissible based on Article 12 of the Supplementary Provisions, which, in paragraph 1, provides that "[t]he Court shall rule on preclusions or forfeitures that have occurred for reasons not attributable to the parties or the subjects referred to in Article 4.”

7.1.– The request is worthy of acceptance.

Premising that, as observed by this Court, the filing of the special power of attorney within the peremptory term indicated by Article 3 of the Supplementary Provisions constitutes an "essential fulfillment for the regular appearance in judgment” (Judgment No. 236 of 2021), the appearance of S. T., M.I. A.K., H. U., and A.S. M.I. must nevertheless be considered admissible, as the failure to file the special powers of attorney is attributable to the same fact, not attributable to either the accused or their counsel, which necessitated the introduction, by this Court, of a new hypothesis of *procedibilità in absentia*, even though the accused must be considered unaware of the pendency of the criminal proceedings against them.

It must be stressed once again that, in the specific hypothesis under review, knowledge of the *vocatio in iudicium* was prevented by a *factum principis*, i.e., the refusal of judicial assistance opposed by the State of nationality of the accused persons.

In the constitutional review proceedings concluded with Judgment No. 192 of 2023, it emerged that the Egyptian Attorney General's Office even denied the Italian ministerial delegation the release of the addresses of the internal security service agents to whom the initiation documents of the criminal proceedings in Italy were to be served.

As justification for this conduct, the irrevocable closure of the investigations conducted by the Egyptian authority was adduced, "based on a mere decree of dismissal, adopted by the same investigating body, without the review of a third-party judge” (Judgment No. 192 of 2023, paragraph 5.4. of the Considerations in Law).

Further elements suitable to corroborate the persistent refusal of international cooperation were drawn by the referring Court of Assizes itself from the note of June 17, 2024, with which the Egyptian Attorney General's Office invoked the *ne bis in idem* prohibition to justify the refusal to proceed with the letter rogatory requested through diplomatic channels by the Public Prosecutor at the Court of Rome and aimed at summoning certain witnesses pursuant to Article 9 of the New York Convention against Torture.

The lack of any communication between the accused and the court-appointed counsel, due to the ongoing denial of collaboration by the foreign authority, renders objectively impossible the conferring of the special power of attorney necessary for appearance in the constitutional review proceedings.

Ultimately, in light of Article 12 of the Supplementary Provisions, it must be excluded that an external obstructive fact, such as the one in question, may deprive the accused of a faculty, such as providing their argumentative contribution in the constitutional review proceedings, generally recognized to the parties in the main proceedings.

8.– Still as a preliminary matter, the *petitum* formulated in the referral order must be specified.

Contrary to the view of the State Attorney's Office, the referring judge is not asking for the introduction of a new hypothesis of admission to legal aid at the State's expense detached from income requirements, but hopes, for the sole hypothesis of *procedibilità in absentia* configured by the aforementioned Judgment No. 192 of 2023, for the introduction of a system of Treasury advance payments for the party technical consultant’s fees analogous to that provided for by Article 117 of the Consolidated Text on Justice Costs for the remuneration of the court-appointed counsel for the absconding accused, reserving the possibility for the State to recover the relevant amounts should the same accused become subsequently available.

8.1.– The mechanism of advancing consultancy expenses proposed by the referring judge would therefore not reproduce that provided for legal aid for the indigent, but should be configured in line with the Treasury liquidation of fees for the court-appointed counsel of the absconding accused.

As observed by this Court, these are partially different institutions, although traceable to a common public nature, given that the function of legal aid at the State's expense is to remove, in harmony with Article 3, second paragraph, of the Constitution, the economic difficulties that may impede the concrete exercise of the right to defense (Judgment No. 166 of 2022), whereas court-appointed technical defense "enhances the ‘just’ nature of the trial in which it is made mandatory, in the equality of the parties and the impartiality of the judge” (Judgment No. 58 of 2025).

The differences are also apparent on the economic side.

The counsel for a person admitted to legal aid for the indigent is, in fact, remunerated by the State through the definitive assumption of the burden of the relevant fees and expenses. A similar mechanism is provided for the remuneration of judicial assistants, private investigators, and party technical consultants appointed by the party, subject to recovery only in the event of revocation of the benefit.

With regard to court-appointed defense, the State, where the situations indicated by Articles 116 and 117 of the Consolidated Text on Justice Costs exist, i.e., the insolvency or unavailability of the accused, advances the fees and expenses to the professional, subject to then attempting to recover them from the same accused who becomes, respectively, solvent or available.

The difference between the two systems of advance payment of expenses by the State therefore lies precisely in the recovery regime, excluded in legal aid for the indigent, where specific financial coverage is provided, whereas, in court-appointed defense, a new economic burden intended to remain borne by public finances is not configured, since the State is required to seek recourse against the client (Judgment No. 266 of 2003).

9.– Given the foregoing, the issues are well-founded with reference to Article 24, second paragraph, of the Constitution.

9.1.– It must first be noted that the referring judge is not mistaken in considering that the discipline of party technical consultancy, where it contemplates as the only possibility of Treasury advance payment of the related costs the admission of the party to legal aid at the State's expense, is not suitable, due to its rigid wording, for an extensive interpretation oriented towards the Constitution.

9.2.– The interpretative premise according to which the court-appointed counsel who advances the fees for the technical consultant cannot obtain reimbursement in the liquidation of their own fees pursuant to Articles 116 and 117 of the Consolidated Text on Justice Costs, as the aforementioned costs do not fall within the expenses in the technical sense reimbursable according to the methods indicated by these provisions, is likewise shareable.

9.2.1.– It is, in fact, to be excluded that the court-appointed counsel, if entitled to recover from the accused the sums advanced as compensation for the technical consultant appointed by him, should also be able to obtain reimbursement from the State, should the same accused prove insolvent or unavailable, according to the methods indicated by Articles 116 and 117 of the Consolidated Text on Justice Costs.

In truth, there is no perfect symmetry between the expenses advanced by the counsel, in the interest of the accused, on the assumption of a fiduciary appointment or in any case an agreement with the client, for which the same party is required to reimburse, and the expenses reimbursable by the Treasury to the court-appointed counsel if the accused proves insolvent or unavailable.

In the context of the defense mandate, the lawyer who appoints a technical consultant by incurring the necessary expenses to remunerate him can certainly obtain reimbursement from the client for the amount paid by listing the relevant amount in the fee statement.

The contract for professional services under which the consultant receives the assignment is, in this case, concluded by the defense counsel on behalf of the client, who, by virtue of the mandate conferred to the lawyer for this purpose, is obliged to reimburse what the latter has advanced to execute it.

A similar claim for restitution arises in the case of appointment of court-appointed counsel, when the appointment of the expert is nevertheless agreed upon between the lawyer and the accused or the latter, having been informed by the counsel of the need to supplement the defense with technical consultancy, has not expressed his dissent pursuant to Article 99, paragraph 2, of the Code of Criminal Procedure.

Ultimately, in the hypotheses considered, the obligation to reimburse the disbursement in question, finding its basis in an agreement between the lawyer and the party, falls fully under the expenses advanced by the former in the interest of the latter mentioned in the cited Article 13, paragraph 10, of Law No. 247 of 2012.

9.2.2.– Conversely, an obligation to reimburse all expenses advanced by the defense counsel in the interest of the client is not conceivable when a professional assignment does not exist and the fees and expenses are borne by the Treasury within the scope of a relationship that is established directly between the defense counsel and the State, as in the case where the lawyer assists a party admitted to legal aid at the State's expense or in the case where the defense counsel is appointed by the court and the accused is insolvent or unavailable.

In these cases of Treasury liquidation, the expenses reimbursable to the lawyer are, in fact, solely those necessary for the performance of his specific defense services.

In these situations, on the one hand, there are no needs for financial balancing such as the one that arises when the defense counsel, with the consent of the client, appoints, on behalf of the latter, the professional by bearing the costs.

On the other hand, it must be considered that in the Consolidated Text on Justice Costs, the expenses for the party's other assistants (technical consultant and private investigator) are the subject of a specific advance payment by the State in addition to the assumption of the expense for legal defense.

In particular, within the discipline of legal aid for the indigent, Article 107 of the Consolidated Text on Justice Costs, in paragraph 3, distinctly considers the advance payment of the fees of the defense counsel and those of the other professionals that the party may use for a more effective exercise of the right to defense.

The cited provision establishes, in fact, that "[e]xpenses advanced by the Treasury are: […] d) indemnities and travel expenses for assignments, as well as expenses incurred for the fulfillment of the assignment, and the fee for judicial assistants, party technical consultants, and authorized private investigators; […] f) the fee and expenses for lawyers […]”.

Specific and distinct rules are also provided for the liquidation of fees and expenses for the defense counsel and the party technical consultant.

Article 82 of the Consolidated Text on Justice Costs indicates the criteria for liquidating the fees of the defense counsel for the party admitted to the benefit, providing, in paragraph 1, that "[t]he fee and expenses due to the defense counsel shall be liquidated by the judicial authority by payment decree, observing the professional tariff in such a way that, in any case, they do not exceed the average values of the current professional tariffs relating to fees, rights, and indemnities, taking into account the nature of the professional commitment, in relation to the incidence of the acts taken on the procedural position of the defended person.”

Mirroring this, the subsequent Article 83, in paragraph 1, establishes that "[t]he fee and expenses due to the defense counsel, the judicial assistant, and the party technical consultant shall be liquidated by the judicial authority by payment decree, according to the rules of this consolidated text.”

9.2.3.– From the cited provisions, it can be inferred that, if the accused person admitted to legal aid at the State's expense avails himself of the assistance of a technician, the fee and expenses for the party consultancy shall be liquidated by the magistrate, upon request of the consultant himself, with a specific provision and based on the criteria provided by the Consolidated Text on Justice Costs and not on the professional tariffs (Court of Cassation, Second Civil Section, order of March 15, 2024, No. 7035).

Under the aforementioned provisions, in the case of admission to legal aid at the State's expense, it must therefore be excluded that the Treasury can reimburse the costs of technical consultancy to the defense counsel who may have advanced them, considering them a reimbursable expense.

9.2.4.– The distinction to which reference has been made cannot fail to apply also to the Treasury advance payment of the fees of the court-appointed counsel for the insolvent or unavailable accused.

Confirmation of this is found in the very wording of Articles 116 and 117 of the Consolidated Text on Justice Costs, which, in regulating, in paragraph 1, the amount and methods of liquidating the defense counsel's fees, refer to Article 82, which, as stated, is strictly linked to the subsequent Article 83, which separately considers the liquidation of the fees of the defense counsel and the party technical consultant.

It must, moreover, be observed that if the disbursement for the technical consultant were considered an expense reimbursable to the court-appointed counsel, the judge responsible for the liquidation should, strictly speaking, assess its appropriateness based on professional tariffs and not on the criteria of the Consolidated Text on Justice Costs, as happens when the fee for the party technical consultant is advanced by the State (Cass., No. 7035 of 2024), because the lawyer would request reimbursement of the amount paid to the consultant based on a private contract and, therefore, according to free-market professional tariffs. This would conflict with the rule, inherent in the system of assumption of justice costs by the Treasury, according to which the costs borne by the State must be determined according to the criteria dictated by the Consolidated Text on Justice Costs itself.

Nor, conversely, could the orientation of the jurisprudence of the Court of Cassation be leveraged, which, with reference to the hypothesis of Treasury assumption of the fees of the court-appointed counsel for the insolvent accused under Article 116 of the Consolidated Text on Justice Costs, allows the extension of liquidation also to the fees and expenses incurred by the lawyer for the attempt to recover professional fees from the accused who subsequently proves insolvent.

This extension of the notion of reimbursable expenses to the court-appointed counsel is, in fact, to be considered exceptional and is justified by the fact that the examination of the accused constitutes a mandatory step for requesting the liquidation of fees pursuant to Article 116 of the Consolidated Text on Justice Costs.

These expenses – the Court of Cassation has, in fact, observed – relate "instrumentally and functionally” to a professional activity also performed in the interest of the State, with the consequence that it would be unfair to place the burden of the expenses necessary for the recovery of professional fees on the professional (among others, Court of Cassation, Second Civil Section, order of February 26, 2024, No. 5041).

9.2.5.– Ultimately, it must be excluded that in the case of unavailability of the accused, the court-appointed counsel who has appointed a party consultant can request reimbursement of the sums possibly advanced for remunerating him by including the relevant amount in the request for liquidation of fees pursuant to Article 117 of the Consolidated Text on Justice Costs.

In the present case, the court-appointed counsel designated in the main proceedings are therefore faced with the alternative between the direct assumption of the costs arising from the appointment of the technical consultant, which at present they would not be able to recover from their clients, and the renunciation of availing themselves of the expert's assistance, although necessary for the purpose of participating in the expert adversarial process.

9.3.– Yet, the faculty, recognized to the parties by Articles 225 and 233 of the Code of Criminal Procedure, to be assisted by a technical consultant responds to the fundamental need to ensure active participation in the technical-expert adversarial process, guaranteeing, at the same time, the right to seek scientific evidence and to contribute to its formation in the trial.

In fact, the consultant does not limit himself to accrediting the party's arguments on a technical-scientific level, but, on the one hand, can contribute to the elaboration of the expert response in adversarial proceedings with the expert and, on the other hand, can fulfill a true testimonial function (among others, Court of Cassation, Fourth Criminal Section, judgment of April 26-June 5, 2018, No. 25127; Third Criminal Section, judgment of October 22, 2014-February 2, 2015, No. 4672).

9.3.1.– The constitutional relevance of the assistance of technical-scientific knowledge in criminal proceedings has been repeatedly underlined by this Court.

The technical consultant is, in fact, an integral part of the accused person's defense office, in whose interest he performs his work through the contribution of technical arguments, findings, and observations that are essentially defensive in nature (Judgment No. 199 of 1974).

Technical consultancy therefore has "legal relevance as defense within the limits set by the technical rules which constitute its object” (Judgment No. 128 of 1979) and is established "to further guarantee the regularity of the adversarial process” (Judgment No. 149 of 1983), so that any substantive limitation imposed on this instrument results in an impairment of the right under Article 24 of the Constitution (Judgment No. 345 of 1987).

This Court has also emphasized the evidentiary function that party consultants may perform according to Article 233 of the Code of Criminal Procedure, which "serves to qualify in an even more evident way their activity as an essential aspect of the exercise of the right to defense in relation to cases in which the decision on the criminal liability of the accused involves the performance of investigations or the acquisition of data or evaluations requiring specific technical, scientific, or artistic skills” (Judgment No. 33 of 1999).

Ultimately, where the ascertainment of criminal liability requires the possession of technical knowledge, the faculty of the accused to be assisted by a technical consultant is an expression of the inviolable right to defense (again, Judgment No. 33 of 1999).

9.4.– This need for protection is, however, not apparent in the trial *in absentia*, in which the accused person’s waiver of presence in the trial involves all their participatory rights, including the faculty to avail oneself of a party consultant.

In fact, it must be considered that the designation of the consultant is an act that, although it can also be performed by the defense counsel pursuant to Article 99, paragraph 1, of the Code of Criminal Procedure – not falling within the category of "personal” acts or those requiring a special power of attorney –, still originates from the will of the accused or in any case from their adherence to the defense option proposed by the lawyer.

The faculty to be assisted by a technician constitutes, in fact, an explication of self-defense, a "primary right […] guaranteed by the Constitution, inherent in the entire procedural process” (Judgment No. 205 of 1971) autonomous and additional to that of technical defense (Judgment No. 65 of 2023).

Consequently, the choice of the accused not to take part in the trial dialectic precludes the judge from imposing defensive tools beyond court-appointed defense, such as a party technical consultancy.

9.4.1.– In this regard, this Court in Judgment No. 498 of 1989 clarified that while the expert's assistance integrates technical defense and the guarantee enshrined in Article 24, second paragraph, of the Constitution is exercised towards it in the sense that any provision hindering its active participation in the proceedings is unlawful. Nevertheless, the need to resort to a party consultant does not allow one to disregard or even override the will of the accused, as is the case with the appointment of a court-appointed counsel.

The *ratio* supporting the principle of the indefectibility of defense in criminal proceedings is different, as it responds to an "absolute and inalienable need because it introduces a protagonist without whom, especially and even more so in the new proceedings, it cannot even continue from a certain point onwards” (again, Judgment No. 498 of 1989).

Ultimately, in the trial *in absentia*, in the event that the court-appointed counsel, in exercising their power of representation of the accused under Article 420-bis, paragraph 4, of the Code of Criminal Procedure, decides to resort to technical consultancy, no constitutional interest requiring the State to advance the costs for the remuneration of the expert is found, given that, in view of the accused person's free choice to waive participation in the trial, the supplementation of the defense with the consultant's assistance does not constitute an indispensable condition for the holding of the trial.

9.4.2.– This Court has, however, stressed that only a voluntary waiver by the accused to participate in the trial "as an expression of their free and uncoercible defense choice” can justify, on a constitutional level, the limitation of the adversarial process to representation by the defense counsel alone (Judgment No. 9 of 1982).

This means that when, as in the specific hypothesis under review, conduct symptomatic of the accused's abdication of their participatory rights is not apparent, the minimum guarantees recognized by the discipline of trial *in absentia* may prove inadequate.

As a result of the additive intervention by Judgment No. 192 of 2023, when a crime committed through acts of torture is alleged, the judge may proceed in absentia even if it is impossible to establish whether the accused, despite being aware of the proceedings, has effectively been informed of the pendency of the trial against them, if such impossibility derives from the lack of assistance from the State of nationality.

The aforementioned Judgment observed that the refusal of cooperation by the Egyptian State – and specifically the failure to communicate the addresses of the officials deemed responsible for the crimes being prosecuted – could indefinitely prevent the holding of a trial in which proceedings are conducted for the crime of torture, and therefore for an "extreme crime against human dignity” (paragraph 13.2. of the Considerations in Law) and against humanity, the ascertainment of which must be ensured by the Italian State in compliance with the New York Convention against Torture and in line with general international law.

This Court has therefore, through an additive intervention, introduced a further hypothesis of non-impeding absence limited by the type of offense, as it must concern not every instance in which the notification of the *vocatio in iudicium* to the accused is made impossible by the non-cooperation of the State of nationality, but only the allegations of torture for which the inadmissibility of proceedings results in a violation of Articles 2, 3, and 117, first paragraph, of the Constitution, the latter in relation to Article 1, paragraph 1, of the New York Convention against Torture.

The scope of the addition made was also delimited on the subjective side, since, under Article 1, paragraph 1, CAT, acts of torture are solely those committed "by a public official or by any other person acting in an official capacity, or at his instigation or with his express or tacit consent.”

This Court has also specified that, since the accused person's right to attend the trial to exercise self-defense is a fundamental right guaranteed by Articles 111 of the Constitution and 6 ECHR, the ascertained constitutional breach must be remedied "through internal lines of the guarantees system, without any sacrifice or conditionality of the participatory faculties of the accused, but only with a different temporal sequencing of their exercise” (Judgment No. 192 of 2023, paragraph 10 of the Considerations in Law).

The *reductio ad legitimitatem* was, in fact, carried out through a rearrangement of the participatory guarantees of the accused and, in particular, by recognizing the right to a new trial which, taking place in the presence of the same accused and at their request, allows for the review of the merits of the case, including the examination of new evidence.

9.5.– Given the foregoing, in the exceptional hypothesis of trial *in absentia* in question, the supplementation of the defense guarantees advocated by the referring Court of Assizes not only does not conflict with the will of the accused, which, due to the uncooperative conduct of the Egyptian State, cannot even be presumed, but, as highlighted by the *amicus curiae*, is necessary to mitigate the gap between the participatory tools of the Public Prosecutor and the private parties and the limited defense possibilities available to the court-appointed counsel.

9.5.1.– With regard to, in particular, party consultancy, the power of representation of the accused under Article 420-bis, paragraph 4, of the Code of Criminal Procedure, unlike contractual representation, does not allow the court-appointed counsel who appoints a technical consultant to pass on to the client the substantive effects of conferring the assignment, including the obligation to pay the fee and expenses. This could lead the lawyer who is unwilling to bear the costs of the consultancy to renounce the technical assistance.

In the present case, this limit translates into an unjustified obstacle to the exercise of the right to defense under Article 24 of the Constitution.

In the special trial in question, there is therefore a need to compensate for the restriction of protection that inevitably correlates with the, albeit blameless, absence of the accused, by relieving the court-appointed counsel from the economic burden arising from the appointment of the consultant.

Furthermore, the principle of effectiveness of the right to defense, as defined by this Court (among others, judgments No. 58 of 2025, No. 166 of 2022, and No. 94 of 2017) and by EU jurisprudence (Court of Justice of the European Union, Fifth Section, judgment of November 26, 2015, Case C-166/14, MedEval; Fourth Section, judgment of February 28, 2013, Case C-334/12, Jaramillo et al.), must consist in the necessity that the trial guarantees judicial protection without limits or exclusions other than those imposed by the prevalence of other constitutionally relevant interests or by objective material impossibility.

Regarding, in particular, the effectiveness of the right to the technical adversarial process, it has also found full recognition in the jurisprudence of the Strasbourg Court (ECtHR, Duško Ivanovski v. the former Yugoslav Republic of Macedonia and Matytsina v. Russia).

9.6.– The identified constitutional breach must be remedied by introducing an exceptional hypothesis of Treasury advance payment of the fees and expenses of the party technical consultant, subject to the possibility for the State to recover the relevant amounts from the accused should they subsequently become available.

As confirmed by the constant jurisprudence of this Court, the normative data useful for filling the gap that determines the alleged unconstitutionality must be in close relationship with the discipline subject to challenge (among the most numerous, judgments No. 39 of 2025, No. 46 of 2024, No. 95 and No. 28 of 2022) and, therefore, with the only hypothesis of assumption of the costs of technical consultancy by the Treasury contemplated by Article 225 of the Code of Criminal Procedure, namely that of legal aid for the indigent under Article 107, paragraph 3, letter d), of the Consolidated Text on Justice Costs.

However, it must be an advance payment that does not involve, as a principle, the definitive assumption of the economic burdens by the State, leaving intact the right of recovery against the accused who subsequently become available, unlike what happens in legal aid at the State's expense, where, as recalled, the assumption of justice costs, due to the beneficiary's condition of indigence, is final and therefore requires specific financial coverage (Judgment No. 266 of 2003).

Among the existing disciplines, the most suitable paradigm must therefore be found in the Treasury advance payment, subject to recovery, provided for in favor of the court-appointed counsel of the absconding accused by Article 117 of the Consolidated Text on Justice Costs.

The rules concerning the amount and methods of liquidating the consultant's fees must also be drawn from this institution.

In the peculiar trial *in absentia* in question, following the example of the cited Article 117 of the Consolidated Text on Justice Costs – which, for the determination of fees and expenses for the defense counsel, refers to the discipline of legal aid at the State's expense –, Article 83 of the same consolidated text must apply for the liquidation of the fees and expenses for the party technical consultant for the party admitted to legal aid at the State's expense.

Since the latter provision, in paragraph 1, specifies that the determination of the fees takes place "according to the rules of this consolidated text,” its extension to the hypothesis under review entails, at the same time, the applicability of Articles 50, 54, and 106-bis of the Consolidated Text on Justice Costs, relating to the amount of fees, as well as Article 106 of the same consolidated text, which, still with reference to free legal aid, establishes in paragraph 2 that expenses incurred for party technical consultancies that, at the time of conferring the assignment, appeared irrelevant or superfluous for evidentiary purposes, cannot be liquidated.

9.7.– The possibility of opposition, pursuant to Article 84 of the Consolidated Text on Justice Costs, to the payment decree issued in favor of the judicial assistant remains, of course, unaffected.

10.– Article 225, paragraph 2, of the Code of Criminal Procedure must therefore be declared constitutionally illegitimate, with reference to Article 24, second paragraph, of the Constitution, in the part where – for the hypothesis where proceedings are conducted in absentia for one of the crimes defined by Article 1, paragraph 1, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in New York on December 10, 1984, ratified and enacted by Law of November 3, 1988, No. 498, when, due to the lack of assistance from the accused person’s State of nationality, it is impossible to ascertain that the latter, despite being aware of the proceedings, has been informed of the pendency of the trial –, it does not provide that the fee and expenses due to the party technical consultant appointed by the court-appointed counsel are advanced by the State, subject to the right to recover the amounts from the accused person who subsequently becomes available, and liquidated by the magistrate in the amount and manner provided for by Article 83 of the Consolidated Text on Justice Costs.

10.1.– The remaining challenges are absorbed.

for these reasons

THE CONSTITUTIONAL COURT

declares the constitutional illegitimacy of Article 225, paragraph 2, of the Code of Criminal Procedure, in the part where – for the hypothesis where proceedings are conducted in absentia for one of the crimes defined by Article 1, paragraph 1, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in New York on December 10, 1984, ratified and enacted by Law of November 3, 1988, No. 498, when, due to the lack of assistance from the accused person’s State of nationality, it is impossible to ascertain that the latter, despite being aware of the proceedings, has been informed of the pendency of the trial –, it does not provide that the fee and expenses due to the party consultant appointed by the court-appointed counsel are advanced by the State, subject to the right to recover the amounts from the accused person who subsequently becomes available, and liquidated by the magistrate in the amount and manner provided for by Article 83 of the Decree of the President of the Republic of May 30, 2002, No. 115, containing the "Consolidated Text of Legislative and Regulatory Provisions on Justice Costs. (Text A).”

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on January 14, 2026.

Signed:

Giovanni AMOROSO, President

Maria Rosaria SAN GIORGIO, Rapporteur

Valeria EMMA, Registrar

Filed in the Registry on January 30, 2026

 

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