With judgment nos. 2075 and 2077 of 19 January 2024, the United Sections of the Supreme Court of Cassation clarified that the issue of a special power of attorney for litigation in proceedings of legitimacy, when authenticated by lawyers, does not require the spatial and temporal simultaneity of the assisted party’s signature with the drafting, service and/or filing of the deed by the lawyer.
The United Sections, in fact, were called upon to rule on the question of particular importance (sic!) concerning the conferment of a special power of attorney to file an appeal before the Court of Cassation and, in particular, whether this may also be issued on a date prior to the drafting of the appeal and in a place other than that indicated in the document itself.
In this regard, the United Sections – drawing inspiration without reservations from the principles of our Constitution (Articles 24 and 111 of the Constitution) and from the legal traditions shared at supranational level (Article 47 of the Nice Charter, Article 19 of the Treaty on European Union, Article 6 ECHR) – have stated, without ambiguity, that:
– the right of defence has a fundamental ‘centrality’;
– the ultimate purpose to which the trial is per se oriented is the effectiveness of judicial protection;
– too much red tape shall be avoided, as well as restrictions on a party’s right of access to a court that are not the result of reasonable and proportionate criteria;
– the lawyer’s ‘function having great social impact’ is of particular importance in the exercise of jurisdiction and cannot, therefore, take place ‘without the mutual and continuous cooperation between lawyers and magistrates, which must be based on the principle of loyalty; therefore, if the professional betrays this trust, he can certainly be called to answer, in another forum, for his unfaithful work; but as a result of the existence of possible abuses, which do sometimes occur, one must not infer a rule of judgement that presupposes a general and unjustified distrust in the work of the legal profession”.
Given these principles (which represent the beacon that should indicate the road to trial), on the other hand, with regard to the special power of attorney for proceedings before the Court of Cassation, it has been clarified that,
– the date of issue of the power of attorney does not constitute an element of form-content of the power of attorney, nor a condition for the effectiveness of the defence counsel’s certification;
– whether the power of attorney was conferred on a date prior to the date on which the appeal was drafted is irrelevant, whereas what is important for the admissibility of the cassation appeal is that the conferment of the power of attorney to litigate takes place within the time window marked by the (initial) moment of publication of the measure to be appealed and the (final) moment of service of the appeal: therefore, neither before nor after, respectively.
Hence, the declaration of the following principles of law:
1. “On the subject of appeal for cassation, the requirement of the special nature of the power of attorney, referred to in Articles 83, paragraph 3, and 365 of the Code of Civil Procedure, does not require the simultaneous nature of its conferment with respect to the drafting of the document to which it accedes, since for this purpose, it is only necessary that it be joined, materially or electronically, with the appeal and that the conferment is not prior to the publication of the measure to be appealed and not subsequent to the notification of the appeal itself.”
2. “In the case of a native digital appeal, served and filed electronically, the attachment by electronic means – to the public certified electronic mail (PEC) message with which the document is served or by insertion in the “electronic envelope” with which the document is filed – of a digitized copy of the power of attorney drawn up on paper, signed by the party and authenticated with a digital signature by the lawyer, constitutes the case, pursuant to Article 83, third paragraph, of the Code of Civil Procedure, of a special power of attorney appended at the bottom of the appeal, with the result that the power of attorney itself is to be considered valid in the absence of expressions that unequivocally lead to the exclusion of the party’s intention to appeal before the Court of Cassation”.
All this with the approval of colleagues (and assisted parties) who have been unjustly barred access to judicial protection by virtue of previous rulings of inadmissibility of appeals to the Court of Cassation based on excessive red tape, such as the date affixed to the special power of attorney before that of the deed.
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