Regeni: trial unblocked by the Consulta, the State will advance the defendants' consultancy fees

The lack ofstate funds fortheparty technical advisor, appointed by the public defender of a defendant who cannot be found, prevents an effectivetechnical defence, insofar as it does not provide thatfees and expenses be advancedby the State. This is a vulnus to the right of defence that must be remedied by introducing an exceptional hypothesis ofpayment in advance to the State of the fees and expenses of technical consultants. Without prejudice to the possibility for the State to recover the relevant amounts from the defendants if they become available. The Constitutional Court (ruling 12/2026) has thus removed the obstacle that had stoppedthe trial against thefour Egyptian 007 accused of the death ofGiulio Regeni, the Italian researcher kidnapped in Cairo on 25 January 2016 and found lifeless on 3 February the following day near an Egyptian secret service prison, with obvious signs of torture.

An impasse had been created in the Regeni trial, which was held in the absence of the defendants, the impossibility of notifying them of the proceedings due to the lack of cooperation of Cairo. The issue of constitutionality had been raised by the defendants' public defenders during the hearing before the Court of Assizes in Rome: general Sabir Tareq, Colonels Usham Helmy and Ather Kamal and Major Magdi Sharif, all of the Egyptian internal security service, accused of the kidnapping and, for one of them, of the multiple aggravated bodily harm and murder of the Italian researcher.

The presence of a party consultant had become necessary for the translation of documents into Arabic. Hence the request by the public defender's office to appoint a party's consultant at the State's expense, to protect the right of defence, and the consequent doubts as to the constitutionality of the rules on technical consultancy in the part in which, in the special case of an absent trial, they do not provide that the relevant expenses be advanced by the State. A preclusion branded by the judge of laws as unconstitutional for violation of Article 24 of the Constitution.

Article 225, paragraph 2, of the Code of Criminal Procedure has ended up in the crosshairs, in the part in which - for the exceptional hypothesis introduced by Court ruling No. 192 of 2023 - it does not provide that the fees and expenses due to the party's consultant appointed by the public defender are advanced by the State, subject to the right to repeat the amounts against the defendant who subsequently becomes recoverable, and liquidated by the magistrate to the extent and in the manner provided for by Article 83 of the Consolidated Law on legal costs for the case of admission to the fratuito patroninio.

The exceptional hypothesis - defined by the 2023 judgment - is that in which one is prosecuted in absence for one of the offences provided for by Article 1 of the New York Convention against Torture when - due to the lack of assistance of the defendant's State of nationality - it is impossible to have proof that the defendant, although aware of the pendency of the proceedings, was made aware of the pendency of the trial. In Judgment 192/2023, in fact, the Constitutional Court stated that the regulation of trial in absence cannot result ina de facto immunity that prevents the ascertainmentof crimes of torture, on pain of an impairment of the procedural duty to safeguard the dignity of the person.