Practical guide

How to draft the decree of untraceability under Art. 159 CCP with AI

3 min read · Updated September 2026 · Editorial oversight: Avv. Federico Papa

The decree of untraceability (decreto di irreperibilità) is the judicial order issued when a defendant cannot be located, directing service of process to the defense counsel. This guide examines the formal and substantive requirements to ensure the procedural validity of the order.

In brief

The decree of untraceability is issued when, despite diligent searches in the locations specified by Art. 159 CCP, including checks at the central Penitentiary Administration, the defendant remains unlocated. The order must document the negative outcome of checks at the residence, workplace, central Penitentiary Administration, and place of birth or last known residence. Once issued, the decree appoints a public defender (difensore d'ufficio), if necessary, and mandates that all subsequent service of process be made to said counsel, ensuring the continuity of the criminal proceedings.

The steps

1.
Verification of preliminary search results
Before issuing the decree, it is essential to verify that the judicial police have carried out the mandatory searches with due diligence. These checks must cover the place of birth, residence, habitual dwelling, workplace, the central Penitentiary Administration (Amministrazione Penitenziaria centrale), and, if unknown, the last municipality of residence. edit.legal recommends ensuring the report of unsuccessful searches (verbale di vane ricerche) is detailed and not merely boilerplate, specifically listing the offices consulted and the individuals interviewed to locate the suspect or defendant.
2.
Assessment of the timeliness of searches
Untraceability cannot be declared based on outdated checks. The magistrate must ensure that a reasonably short period has elapsed between the searches and the issuance of the decree. If the reports are old, an update of the local investigations should be ordered. Italian case law requires that the state of ignorance regarding the defendant's whereabouts be actual and persistent at the time the order is adopted, to avoid the nullity of the summons to trial.
3.
Drafting the reasoning of the decree
The decree must be reasoned (motivato). It is necessary to summarize the results of the search reports, highlighting the impossibility of proceeding with service in the ordinary manner. A generic reference to the case file (motivazione per relationem) is insufficient. It must be stated that the searches covered all areas required by law and that no elements emerged suggesting the defendant was at a location other than those monitored. edit.legal facilitates the synthesis of these logical steps based on the documentary evidence.
4.
Appointment of counsel and order of service
In the operative part of the decree, the judicial authority must appoint a public defender if the defendant does not have one. Simultaneously, the order must direct that all currently required and future notifications, for the entire stage of the proceedings, be executed via delivery to the counsel. It is fundamental to specify that the lawyer represents the untraceable defendant for all legal purposes, bearing the duty to inform them if contact is established, though service is perfected upon delivery to the lawyer.
5.
Verification of the limits of the decree's effectiveness
The decree of untraceability has an effectiveness limited to the stage in which it is issued. An order issued by the Public Prosecutor ceases upon the closing of preliminary investigations or the decree ordering the trial. A decree issued by the GIP (Judge for Preliminary Investigations) remains effective until the dismissal order or the end of the current trial stage. In every new stage or degree of the proceedings, the judicial authority must order new searches and, if appropriate, issue a new decree.

Legal basis: Art. 159 c.p.p.Art. 160 c.p.p.Art. 170 c.p.p.Art. 171 c.p.p.

Mistakes to avoid

Issuing the decree based on partial searches that exclude the workplace, place of birth, or the central Penitentiary Administration.
Failure to issue a new decree when moving from the investigation stage to the trial stage.
Reasoning that lacks specific references to the investigative acts performed by the police.
Service to counsel performed before the formal issuance and filing of the decree of untraceability.

Frequently asked questions

What happens if the defendant is located after the decree is issued?

The decree of untraceability must be immediately revoked. Subsequent notifications must be executed through ordinary means at the defendant's actual or elected domicile.

Is the decree valid if the search at the place of birth is missing?

No, failing to conduct searches in one of the locations strictly mandated by Art. 159 CCP results in the nullity of the decree and the subsequent service of process to the counsel.

Can a decree of untraceability be issued for a suspect abroad?

No, if it is known that the defendant is abroad, the rules for service abroad under Art. 169 CCP apply, following inquiries with the Ministry of Justice.

Editorial oversight: Avv. Federico Papa·ICAMUpdated 17 September 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction

What edit.legal automates

—Automated analysis of police search reports to verify compliance with Art. 159 CCP requirements.
—Generation of the draft decree with precise references to the locations inspected and the negative outcomes.
—Monitoring the expiration of the decree's effectiveness across different stages of the criminal proceedings.