In the case presented by a Ukrainian citizen, the Supreme Court of Cassation declared the inadmissibility of the appeal pursuant to Article 35-bis, paragraph 13, of Legislative Decree No 25/2008 as the power of attorney for the presentation of the appeal was not lawfully conferred, specifically there was a failure to certify the date of issuance of the power of attorney in favour of the defence lawyer. The court noted that such special power of attorney must explicitly contain the indication of the date subsequent to the communication of the contested measure and requires the defence lawyer to certify, even if only by a single signature, both the date of the power of attorney subsequent to the communication and the authenticity of the conferrer’s signature.

The Supreme Court of Cassation also indicated that «the appellant's request for the matter to be referred to the Court of Justice of the European Union pursuant to Article 267 TFEU must be disregarded, as the Constitutional Court itself, ruled out the incompatibility of Article 35 bis, paragraph 13, with European Union law, on the assumption that the judicial protection of a right due to individuals under Community law, such as that of the asylum applicant, ensured by the internal order with the complete and ex nunc examination of the elements of fact and law in judicial proceedings at first instance and appeal for cassation is not incompatible with EU law.

In the present case, the Supreme Court of Cassation indicated that pursuant to the above principle the appeal must therefore be declared inadmissible considering that in the present case the special power of attorney conferred by the appellant to the lawyer, annexed to the appeal in cassation on a joint sheet “although detailed in its content (indicating the reference number and the date of the rejection decision adopted by the immigration section of the Court of Rome against which the appeal in cassation was to be brought), and although it indicates a date of issuance (11.03.2021) subsequent to the date of publication of the contested decree, does not contain any expression from which it appears that the defendant intended to certify that the power of attorney was conferred on a date subsequent to the communication of that decree, bearing only the authentication of the signature of the conferrer with the words “True is the signature”.