Italian Supreme Court, Sixth Criminal Section, judgment no. 47159/2022, hearing on 25 October 2022, filed on 13 December 2022.
Declining an appointment and withdrawing from an accepted defence mandate are distinct mechanisms governed by Article 107 of the Italian Code of Criminal Procedure, with different procedural consequences.
Declining an appointment concerns counsel who decides not to take on the mandate offered. Under Article 107(2), it takes effect when notice reaches the authority conducting the proceedings, without the need to await the appointment of new counsel.
Withdrawal, by contrast, concerns a mandate already accepted and has deferred effect. Counsel remains responsible for providing assistance until the defendant has new privately appointed or court-appointed counsel and any period allowed for preparation of the defence under Article 108 has expired.
In judgment no. 47159/2022, the Supreme Court explained that deferred effectiveness of withdrawal must remain temporary and cannot result in proceedings continuing through systematic reliance on substitutes appointed under Article 97(4).
The practical principle is that a timely communicated refusal to accept an appointment does not bind counsel until a subsequent defence appointment. Where counsel withdraws, continuity of representation must be ensured, while the judge remains required to arrange a new appointment promptly where necessary.
In both cases, Article 107(1) requires counsel to notify the authority conducting the proceedings and the person who appointed them immediately.
The judgment directly concerns withdrawal from a mandate; the distinction from declining an appointment is addressed in the Court’s account of the statutory framework.
Source: Italian Supreme Court, Sixth Criminal Section, no. 47159/2022, Rv. 284024-01.
