The Fifth Criminal Division of the Italian Supreme Court, in judgment no. 33829/2026, filed on 17 September 2026, addresses a practical issue in Italian criminal e-filing: what happens when the Criminal Filings Portal (PDP) does not allow defence counsel to file an appeal on time, but the malfunction has not been officially certified or recorded?
The Court first clarified that Article 175-bis of the Code of Criminal Procedure does not exhaust all situations in which an IT failure may affect the exercise of the right to appeal. The provision governs cases of a centrally certified malfunction by DGSIA or a locally recorded malfunction by the head of the judicial office. In those circumstances, non-electronic filing is permitted within the statutory framework.
A different issue arises where a temporary or occasional malfunction actually occurred but was neither certified nor formally recorded. According to the Supreme Court, such a situation may still be relevant under the general rules on restoration of the time limit under Article 175.
Defence counsel must therefore show that the IT failure amounted to a genuine fortuitous event or force majeure: an objective obstacle to the timely exercise of the right of appeal that was not attributable to the party. Restoration is not automatic; the specific procedure under Article 175 must be activated and concrete evidence of the impediment must be provided.
Certified email is not automatically an alternative filing method
In the case examined, two appeals had been sent by certified email (PEC) instead of through the PDP after electronic filing had become mandatory. The defence argued that it had been materially impossible to upload the documents because of temporary malfunctions.
The Court nevertheless upheld the finding that the appeals were inadmissible. There was no certification or formal record of a malfunction under Article 175-bis and, above all, the alleged failures had not been adequately documented. Sending the document by PEC therefore cannot replace mandatory PDP filing merely because defence counsel states that technical difficulties were encountered.
How to document a malfunction
The most useful operational part of the decision is the indication of evidence capable of objectively supporting the malfunction. The Supreme Court refers, by way of example, to screenshots of the portal showing the error, the precise error code, timestamps of filing attempts, browser or connection logs, and reports sent to PDP technical support.
The practical principle is therefore clear: when the malfunction is not officially certified, defence counsel should immediately document the technical problem. Without objective proof, a filing made by a different method risks being declared inadmissible.
Source: Italian Supreme Court, Criminal Division V, judgment no. 33829/2026.
Official case page and full text of the judgment
