JUDGMENT NO. 136

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 delivered the following

JUDGMENT

in proceedings concerning the constitutional legitimacy of Article 585, paragraph 1-bis, of the Code of Criminal Procedure, brought by the Court of Appeal of Rome, Second Criminal Section, in the criminal proceedings against S. H., by order of 1 April 2025, registered under no. 94 of the 2025 register of orders and published in the Official Gazette of the Republic no. 22, first special series, of the year 2025.

Having regard to the appearance in intervention by the President of the Council of Ministers;

having heard in chambers on 8 June 2026 the Judge Rapporteur Francesco Viganò;

deliberated in chambers on 8 June 2026.

The Facts

1.– By order dated 1 April 2025 (reg. ord. no. 94 of 2025), the Court of Appeal of Rome, Second Criminal Section, raised, with reference to Article 3 of the Constitution, a question of constitutional legitimacy concerning Article 585, paragraph 1-bis, of the Code of Criminal Procedure, introduced by Article 33, paragraph 1, letter f), of Legislative Decree No. 150 of 10 October 2022 (Implementation of Law No. 134 of 27 September 2021, containing a delegation to the Government for the efficiency of criminal proceedings, as well as regarding restorative justice and provisions for the swift settlement of judicial proceedings), to the extent that it does not limit to court-appointed counsel of a defendant tried in absentia the grant of an additional fifteen-day period to lodge an appeal, compared to the time limits indicated in paragraph 1.

1.1.– The referring court is seised of an appeal against the judgment of conviction issued by the Ordinary Court of Cassino on 19 September 2024 against S. H., who was tried in absentia and assisted by retained counsel. The Court had reserved the filing of the grounds within the subsequent thirty days; therefore, pursuant to Article 585, paragraph 1, letter c), of the Code of Criminal Procedure, the defendant and his counsel could have filed an appeal within forty-five days from the expiry of the time limit for filing the judgment, namely 3 December 2024. However, counsel for the defendant lodged an appeal on 18 December 2024, availing himself of the challenged paragraph 1-bis of the same article, which provides for a fifteen-day extension of the time limits referred to in paragraph 1 for the lodging of an appeal by counsel for a defendant tried in absentia.

Hence the relevance of the issue raised: if it were to be judged well-founded, the appeal would indeed have to be deemed inadmissible for being out of time.

1.2.– Regarding the non-manifest groundlessness of the issue, the referring court firstly reconstructs the regulatory framework into which the challenged paragraph 1-bis fits.

The judge a quo observes in particular that Legislative Decree No. 150 of 2022, by Article 33, paragraph 1, letter d), had introduced a new paragraph 1-quater into Article 581 of the Code of Criminal Procedure, which established that counsel for a defendant tried in absentia must file, on pain of inadmissibility, a specific mandate to appeal, issued after the pronouncement of the judgment, containing a declaration or election of domicile by the defendant for the purposes of notification of the summons to trial.

In parallel with this provision, the same Legislative Decree No. 150 of 2022, by the aforementioned Article 33, paragraph 1, letter f), had introduced the challenged paragraph 1-bis into Article 585 of the Code of Criminal Procedure. Being aware – the referring court observes – "that the absence of the defendant may entail greater difficulty in contacting counsel, and therefore hinder the latter in obtaining the mandate to appeal required by Article 581, paragraph 1-quater, of the Code of Criminal Procedure", the legislature provided for an additional fifteen-day period compared to the ordinary time limits in the case of a defendant tried in absentia, precisely to make it easier for counsel "to search for the defendant with a view to filing the mandate to appeal".

The judge a quo further observes that Article 2, paragraph 1, letter o), of Law No. 114 of 9 August 2024 (Amendments to the Criminal Code, the Code of Criminal Procedure, the Judiciary, and the Military Penal Code) amended the aforementioned paragraph 1-quater of Article 581 of the Code of Criminal Procedure, limiting the burden of obtaining a specific mandate to appeal exclusively to court-appointed counsel of a defendant tried in absentia.

However, Law No. 114 of 2024 did not concomitantly amend the challenged paragraph 1-bis of Article 585 of the Code of Criminal Procedure, which continues to apply to "counsel for the defendant tried in absentia", without distinguishing between retained counsel and court-appointed counsel. Consequently, in the opinion of the judge a quo, the fifteen-day extension of the ordinary time limits for appeal would continue to find a logical explanation for court-appointed counsel, who is still burdened with the obligation to obtain a specific mandate to appeal, but could no longer be justified in relation to retained counsel, who is no longer burdened with such an obligation.

More specifically, following the amendments introduced in 2024, the challenged legislation would violate Article 3 of the Constitution under a twofold profile. On the one hand, it would unreasonably equate the treatment of two completely different positions (that of court-appointed counsel and that of retained counsel of a defendant tried in absentia, only the former now being burdened with the obligation to obtain a specific mandate to appeal). On the other hand, it would create an unreasonable disparity of treatment between retained counsel of a defendant tried in presence and retained counsel of a defendant tried in absentia, given that only the latter benefits from the additional time limit provided by the challenged provision, without this finding justification in the formalities for obtaining the specific mandate to appeal, which are no longer required today.

The referring court therefore hopes for a ruling whereby this Court limits to court-appointed counsel alone of a defendant tried in absentia the fifteen-day extension of the time limit for appeal provided by the challenged provision.

2.– The President of the Council of Ministers has intervened, represented and defended by the State Attorney General’s Office, requesting that the issue be declared unfounded.

The intervener observes first of all that the current procedural system establishes "a veritable statute of the absent defendant, consisting of specific and essential procedural guarantees"; and that precisely the distinction between proceedings involving present and absent defendants allows one to grasp the reasonableness of the challenged legislation.

Indeed, "even though the rule suspected of unconstitutionality may or may not be characterized by the genesis described by the judge a quo and, therefore, may have been introduced as a consequence of the burden provided for by Article 581, paragraph 1-quater, of the Code of Criminal Procedure to allow counsel for the defendant tried in absentia to lodge an appeal", the choice of the 2024 legislature to limit that burden to court-appointed counsel alone, while nonetheless maintaining for retained counsel as well the extension of the time limit to appeal provided by the challenged provision, would in any case find its foundation in the consideration that the absence of the defendant "is a condition to which the legal system affords greater protections and guarantees".

Moreover, retained counsel might well have been appointed at the beginning of the proceedings and have had no further contact with the assisted party. Punctual demonstration of this would be the fact that the mere appointment of retained counsel is not "a sufficient guarantee that the defendant has actual knowledge of the trial". The "absolute presumption of a continuous concrete persistence of the communication channel of counsel present at trial [with] the defendant declared absent" would therefore not appear "consistent with a procedural system that guarantees the absent party with particular protections, among which is the right to effective knowledge of the pending proceedings and of a judgment of conviction against him".

Maintaining the additional fifteen-day time limit also for retained counsel would ultimately be "in line with the priority of protecting the absent defendant as much as possible from the consequences of the violation of the 'right to defend oneself, being informed', which is placed at the foundation of the protection of the absent party and of the principle of a fair trial itself".

3.– The Union of Italian Criminal Chambers (Unione delle camere penali italiane - UCPI) has filed an opinion as amicus curiae, admitted by presidential decree of 1 April 2026.

The amicus curiae hopes, in particular, for the dismissal of the issue raised, since – even if the 2022 legislature had actually intended to anchor the fifteen-day extension of the time limit to appeal to the burden of obtaining a specific mandate to appeal placed upon counsel of the defendant tried in absentia – there would in any case be other reasons capable of imparting reasonableness to the challenged provision. For example, it could be argued "that just like court-appointed counsel for the absent party, retained counsel also has the need to make contact with his client after the pronouncement of the first-instance judgment". What would be relevant, instead, is solely the presence or absence of the defendant during the proceedings.

Furthermore, the UCPI emphasizes how the referral order seeks a ruling in malam partem, functional solely to "limiting the possibility of lodging appeals against an unfavorable judgment".

The Law

4.– The Court of Appeal of Rome, Second Criminal Section, has raised, with reference to Article 3 of the Constitution, a question of constitutional legitimacy concerning Article 585, paragraph 1-bis, of the Code of Criminal Procedure, introduced by Article 33, paragraph 1, letter f), of Legislative Decree No. 150 of 2022, to the extent that it does not limit to court-appointed counsel of a defendant tried in absentia the grant of an additional fifteen-day period to lodge an appeal, compared to the time limits indicated in paragraph 1.

5.– The issue is admissible.

The amicus curiae observes that the referring court seeks a judgment in malam partem as regards defense counsel. More precisely, it requests a judgment that is formally additive, but in substance partially ablatvie of the fifteen-day supplementary time limit to appeal for retained counsel of a defendant tried in absentia: with an outcome – therefore – that is overall more detrimental to the defense.

However, with respect to an issue that does not involve substantive criminal law, this observation cannot in itself be considered an obstacle to its admissibility (ex multis, judgments no. 173 of 2022, no. 218 of 2020, no. 121 of 2009, no. 320, and no. 26 of 2007, in which the declaration of constitutional illegitimacy of the challenged criminal procedural rules entailed unfavorable effects for the defendant).

This is on condition that any ruling of constitutional illegitimacy undertakes – also through the modulation of the temporal effects of the judgment (for a recent example in procedural matters, relating to the protection of the legitimate expectations of the victim, judgment no. 123 of 2025, point 5 of The Law) – to safeguard the legal position of those who have relied upon the rule declared constitutionally illegitimate, in particular by exercising their defense prerogatives within the time limits provided thereby, as indeed occurred in the proceedings a quo.

6.– On the merits, the issue is unfounded.

6.1.– It must be preliminarily recalled that, according to established constitutional case law, in configuring procedural institutes the legislature enjoys broad discretion, which can be censured only where the rules reveal profiles of manifest unreasonableness (ex multis, judgments no. 128, no. 39, and no. 38 of 2025, respectively points 4.2, 4.1, and 4 of The Law; no. 189, no. 96, and no. 83 of 2024, respectively points 9, 7, and 5.5 of The Law; no. 67 of 2023, point 6 of The Law).

6.2.– The referral order proceeds from the assumption that the challenged provision, paragraph 1-bis of Article 585 of the Code of Criminal Procedure, was introduced by the 2022 legislature as a balancing measure in relation to the simultaneous introduction of paragraph 1-quater of Article 581 of the Code of Criminal Procedure, which – in its original version – required both court-appointed counsel and retained counsel of a defendant tried in absentia to file, together with the act of appeal, on pain of inadmissibility, a specific mandate to appeal, issued after the pronouncement of the judgment to be challenged. The granting of an additional fifteen-day period compared to the ordinary time limits for appeal, as provided by paragraph 1 of the same Article 585 of the Code of Criminal Procedure, would, in the opinion of the referring judge, have been functional to ensuring that counsel for the defendant tried in absentia had a more appropriate span of time to make contact with his client and have the mandate conferred upon him.

However, once Article 581, paragraph 1-quater, of the Code of Criminal Procedure was amended by Law No. 114 of 2024, to the effect of requiring the filing of a specific mandate to appeal solely from court-appointed counsel of a defendant tried in absentia, the failure to concomitantly amend Article 585, paragraph 1-bis, of the Code of Criminal Procedure created – from the perspective of the referring Court – an unreasonable asymmetry: the supplementary fifteen-day time limit could henceforth be deemed justified only with respect to court-appointed counsel of the defendant tried in absentia, who is still burdened with the obligation to track down his client to request the specific mandate to appeal, whereas it would no longer be justified in relation to retained counsel, whom the 2024 legislature relieved from such an obligation.

Such an asymmetry would create, according to the referring court, on the one hand, an unreasonable equalization of treatment between court-appointed counsel and retained counsel of a defendant tried in absentia, ensuring for both longer time limits to appeal compared to the ordinary ones despite the different procedural burdens by which each is burdened; and on the other hand, an unreasonable disparity of treatment between retained counsel of a defendant present and that of a defendant tried in absentia, given that only the latter benefits from the extended time limit, even though neither of them is required to obtain a specific mandate to appeal.

6.3.– On this point, it must be acknowledged that the assumption from which the judge a quo proceeds – the strict connection existing, from the perspective of the 2022 legislature, between the procedural burden introduced with Article 581, paragraph 1-quater, of the Code of Criminal Procedure imposed upon all counsel of a defendant tried in absentia and the extension of the time limits to appeal in favor of all of them, provided by Article 585, paragraph 1-bis, of the Code of Criminal Procedure – finds comfort in the analysis of the guiding principle of the delegation whose implementation gave rise to both provisions.

Article 1, paragraph 7, letter h), of Law No. 134 of 27 September 2021 (Delegation to the Government for the efficiency of criminal proceedings as well as regarding restorative justice and provisions for the swift settlement of judicial proceedings) indeed delegated the legislature to "provide that counsel for the absent defendant may appeal the judgment only if equipped with a specific mandate, issued after the pronouncement of the judgment; provide that with the specific mandate to appeal the defendant declares or elects domicile for the appeal proceedings; provide, for counsel of the absent defendant, an extension of the time limit to appeal".

The three interventions outlined herein, subsequently punctually implemented by the delegated legislature, were evidently conceived by the delegating legislature as coordinated and functional to the sole objective of ensuring that the defendant tried in absentia actually intended to lodge an appeal against the judgment. In particular, the difficulties that counsel might have encountered in having a specific mandate to appeal issued by the defendant had suggested to the 2021 legislature to guarantee him a more relaxed time limit to lodge an appeal in all cases where proceedings had been conducted in the absence of the defendant.

The restriction of the burden to acquire the specific mandate exclusively to court-appointed counsel and its elimination for retained counsel of a defendant tried in absentia, which occurred with the 2024 reform, undoubtedly removed the original symmetry between the two provisions.

6.4.– This does not exclude, however, that the fifteen-day extension of the time limit provided by the challenged provision may retain an autonomous rationale of its own – independently of the subjective intentions of the legislature of the 2021 delegation law – even if referred to all counsel, whether court-appointed or retained, of the defendant tried in absentia.

As essentially emphasized both by the State Attorney General’s Office and by the UCPI in its capacity as amicus curiae, it is in fact not fundamentally implausible that counsel – whether court-appointed or retained – of a defendant who has chosen not to be present during the trial held against him may generally require more time, compared to that needed by counsel of a defendant who was present at trial, to contact his client, fully explain the procedural events and the judge’s decision, assess whether to lodge an appeal, and decide together with him what defense strategy to adopt in the subsequent degree of proceedings.

It is indeed true that the fact that the defendant is technically present at trial does not ensure that, in every single concrete case, he has actually followed the proceedings, maintaining a close relationship with his defense counsel. Once he has appeared even at a single hearing, the defendant is, in fact, simply "deemed" present at all subsequent hearings, pursuant to Article 420, paragraph 2-ter, of the Code of Criminal Procedure. Furthermore, by virtue of the same provision, he is "deemed" present even in cases where he has requested in writing to be admitted to a special proceeding or is assisted at the hearing by a special attorney appointed for the request of a special proceeding, without his physical participation in the trial being necessary.

However, in proceedings in absentia, the defendant’s distance from the concrete procedural events is, so to speak, in re ipsa; and the extension of the time limit provided by the challenged provision presupposes the persistence of absence at the time of the decision, since the original declaration of absence must be revoked by the judge in the event that the defendant appears at a hearing during the course of the proceedings (Article 420-bis, paragraph 6, of the Code of Criminal Procedure). Such a situation – in a regulatory context that does not configure the physical participation of the defendant in the trial held against him as an obligation – may therefore be not unreasonably assumed by the legislature as the foundation for a differentiated regulation of the time limit to appeal, which takes into account the need for counsel, whether court-appointed or retained, to have the necessary time available to evaluate, together with his client, the advisability of lodging an appeal. And this regardless of the variable of whether counsel himself must or must not obtain, pursuant to paragraph 1-quater of Article 581 of the Code of Criminal Procedure as amended in 2024, a specific mandate to appeal.

A different choice, such as the one hoped for by the referring judge, would certainly have been possible for the 2024 legislature. However, it could not be deemed mandatory, measured against the constitutional principle of equality invoked by the judge a quo.

on those grounds

THE CONSTITUTIONAL COURT

declares the question of constitutional legitimacy of Article 585, paragraph 1-bis, of the Code of Criminal Procedure, raised, with reference to Article 3 of the Constitution, by the Court of Appeal of Rome, Second Criminal Section, by the order indicated in the headnote, to be unfounded.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 8 June 2026.

Signed:

Giovanni AMOROSO, President

Francesco VIGANÒ, Rapporteur

Roberto MILANA, Director of the Registry

Filed in the Registry on 21 July 2026

 

The anonymized version conforms in its text to the original