In the recent order no. 27104 of 12.07.2024, the Sixth Criminal Section of the Supreme Court referred to the United Sections the decision as to whether it is possible to appeal the judge’s order by which the request for an evidentiary hearing is rejected, if it concerns the testimony of a victim of mistreatment or other crime provided for in Art. 392, paragraph 1 bis of the Code of Criminal Procedure. This is a special hypothesis, introduced with the intention of preserving not only the genuineness of the account but, above all, the psycho-physical integrity of the victim, avoiding the stress of repeating the lived experience several times. However, the procedural rules do not at present provide for the possibility of appealing the judge’s decision, and the Supreme Court is called upon to resolve the contrast that has arisen in jurisprudence, which is currently attested to two opposing positions.
The regulatory framework
The institution of the evidentiary hearing allows for the taking of adversarial evidence as early as the preliminary investigation stage, when it is not possible to postpone this activity to the trial. The means of evidence and the cases in which this can be done are exhaustively indicated by Art. 392 of the Code of Criminal Procedure and concern, in brief: the testimony and confrontation of the declarant who will not be able to testify at the trial due to a serious impediment (e.g., an illness) or when he or she is exposed to violence, threats or offers of money so that he or she does not testify or gives false testimony; the examination of the person under investigation on facts concerning the responsibility of others, the examination of persons under investigation in related proceedings former Art. 210 of the Code of Criminal Procedure or of witnesses of justice; expert opinion or judicial experiment on things, persons or places subject to unavoidable change; reconnaissance that cannot be postponed to the trial for reasons of urgency; expert opinion that would entail a suspension of the trial for more than 60 days or that relating to investigations or sampling of living persons.
In addition to these cases, pursuant to Paragraph 1a of Art. 392, it is possible to request the taking in an evidentiary incident of the testimony of a minor or adult person – even in the absence of the requirement of a serious impediment or the other cases of non-referability provided for in paragraph 1 – when it comes to proceedings for crimes of mistreatment, slavery, pornography, sexual violence and persecutory acts[1] and, in any case, when the offended person is in a particularly vulnerable condition. The legislator’s intent is twofold, wanting first of all to allow immediate verification in terms of the credibility and reliability of the offended person’s statements when the passage of time has not yet affected his or her memories but, above all, to reduce the discomfort for the victim who will have to expose herself and reiterate her experience (thus reliving the same pain) at trial.
The request can be made either by the prosecutor (also at the request of the offended person) or by the suspect, however, the order by which the judge decides (in terms of acceptance, inadmissibility or rejection) is not subject to appeal but only to the remedy of appeal to the Supreme Court (which can be exercised, however, only in cases of an act deemed abnormal).
The facts behind the order
The public prosecutor at the Termini Imerese Court appealed the decision of the Gip that had rejected his request for a special evidentiary hearing, aimed at taking the testimony of a woman victim of abuse, requesting that it be annulled without referral for “functional abnormality” of the measure. According to the prosecutor, in fact, the judge had merely ruled out the offended person’s vulnerability ” on the basis of her age of majority and the fact that she had already filed other complaints against the suspect, without, however, indicating the reasons that prevailed over the needs for the protection of the victim and anticipation of the evidence and, above all, without considering what was represented in the request for an evidentiary incident regarding the victim’s condition of psychological dependence (also as a result of the recent childbirth) and the circumstance relating to the previous remittance of the complaint by the offended person, who had returned to live with the suspect and suffer abusive behavior.”[2].
The question submitted to the Court concerns the limits of the judge’s review and the possible flaws arising from the illegitimacy of his decision: and in fact, in the absence of a specific provision regarding the appealability of the order rejecting the request for an evidentiary hearing, the only remedy available is the appeal to the Supreme Court, whose admissibility is, however, subject to the configurability or otherwise of an abnormal act.
The United Sections have recently intervened on the general topic of abnormal act,[3] but on the issue of the order rejecting the request for an evidentiary accident in the case of testimony of victims of abuse, child or vulnerable person, two different positions have been formed.
According to a first orientation, considered to be the majority, it is up to the judge to decide on the merits of the petition, balancing on the one hand the victim’s protection needs and, on the other hand, the procedural guarantees of the defendant’s right of defense; in this sense, the choice of not providing for the appealability of the rejection order would fall within the legislator’s sphere of discretion and would not determine any risk of friction with international normative sources (Article 35 of the Lanzarote Convention; Article 18 of the Istanbul Convention; Articles 18 and 20 of Directive 2012/29/EU). Although from the latter norms emerges the primary interest in the adoption of measures aimed at limiting the victim’s hearings (e.g., through the provision of specific forms of caution, such as video recording and precautions to safeguard the vulnerable individual), “it cannot be made to derive ex se the provision of any evidentiary automatism linked to the introduction of a real obligation on the part of the judge to order the taking of declarative evidence from the vulnerable offended person following the mere submission of a request for an evidentiary hearing.” According to this orientation, in fact, from the compulsory taking of the evidentiary hearing could achieve a result that is disproportionate to the purpose pursued by the rule of protecting the personality of the vulnerable person, in cases, for example, in which the excision proves to be irrelevant or superfluous “because the evidence has been reached aliunde or when the victim’s condition, by reason of criminal conduct or other reason, discourages the immediate taking of testimony at the investigation stage.”[4] Finally, the very literal tenor of Art. 398 paragraph 1, in providing for three different types of decision (acceptance, inadmissibility or rejection), would exclude a priori the obligatory nature of a positive measure in the face of the request made by the parties.
On the basis of these arguments, therefore, the abnormality of the rejection order in the case of examination of the minor offender of the maltreatment offence was ruled out because of the modesty of his declaratory contribution, the sufficiency of the investigative evidence gathered and the “prejudicial” nature of his hearing in the event of an evidentiary hearing[5]; it was equally reasoned in the case[6] of the adult offender of the crime of persecutory acts whose vulnerability was ruled out because of his age, social integration and the reaction opposed to the criminal conduct by filing the complaint; again, in the case of the offended person of the crime of sexual violence committed against her by a relative when she was still a minor, whose vulnerability was ruled out because she had become of age, was included in a “structured” family that had broken off relations with the abuser, and because of the manner of the abuse, which consisted of touching in the presence of third persons[7]; lastly, in the case of a minor witness to the crime of persecution committed by the father against the mother[8].
A different orientation argues that international sources aimed at protecting victims and family members from secondary and repeated victimisation (in particular, through specific measures such as hearing the victim without undue delay, limiting the number of hearings and their audiovisual recording), “involve the compulsory admission of the incident of evidence in order to safeguard the physical and psychological integrity of the vulnerable subject and to limit the risk of secondary victimisation linked to the repetition of the investigative act“[9]. Therefore, there would be ” a real obligation on the part of the judge to admit the evidentiary accident aimed at taking the testimony of a vulnerable person under paragraph 1a of Art. 392, being able to reject the request only if the normatively configured conditions that legitimize the anticipation of the investigative act are lacking ” (e.g., in the case of a request made by a person who is not eligible, for offenses other than those stipulated in the rule, or for the examination of a person who is not a minor or not vulnerable).
This would be confirmed by the fact that the rule provides for the taking of evidence “even outside the cases provided for in paragraph 1” of Art. 392, without indicating any further prerequisites. According to this approach, therefore, the legislature would have provided as ordinary (and no longer limited to exceptional and peremptory cases) the taking of evidence in an evidentiary incident for a specific category of crimes, also in order to conform domestic law to the obligations arising from international sources and “toavoid phenomena of secondary victimization, considering said interest to prevail over the general principle according to which evidence is formed in a trial, so that it would not be reasonable to invoke the latter value, of an exquisitely procedural nature, in order to sacrifice the former, of a substantive nature and judged to be pre-eminent.” [10].
According to this approach, moreover, there would be no conflict with the provision of Art. 398 paragraph 1 of the Code of Criminal Procedure, since it would conform to the “vocabulary usually used” by the legislature also in other rules that highlight the trial parties’ potestative right to evidence, so that ” In the case provided for in Articles 392, paragraph 1 – bis and 398, paragraph 1, Code of Criminal Procedure. Penal Code, the general principle applies according to which, in the face of the right to evidence at the request of a party, there is an obligation of admission by the judge who has the possibility of excluding only evidence prohibited by law and that which is manifestly superfluous or irrelevant, a hypothesis, this, which, in the case under consideration, has almost no scope of application “.
On the basis of these arguments, the judge’s order rejecting the request for an evidentiary incident to take the testimony of the minor offender, suffering from “emotional and behavioral disorder,” who was the victim of the crime of sexual assault committed by her support teacher, was deemed abnormal[11], based on the arbitrariness of the reasoning employed. In another case, recalling the principles already expressed by the SS.UU. in Judgment 25957/2009, the judge’s rejection measure to take the testimony of a victim of sexual violence on the basis of the lack of urgency was considered abnormal, given that this assumption would only apply to the cases referred to in paragraph 1 of Art. 392 and not also for the specific ones identified in paragraph 1-bis: “the rejection measure, motivated with reference to reasons that are relevant in the different and specific cases contemplated by the first paragraph, results in the substantial disapplication, in the absence of a power expressly provided for by law, of a general rule of taking evidence provided for in compliance with obligations undertaken by the State in international fora.” [12].
In another pronouncement[13], the rejection of the request for the taking of testimony from victims of persecutory acts was considered abnormal, based on the finding that this crime was absorbed into the additional charged crimes of robbery and extortion, which would not have allowed the anticipation of testimony: in such a case, since the request concerned a “vulnerable” person, the margin of discretion reserved for the judge “does not extend to the assessment of the vulnerability of the witness, presumed ex lege, but is limited, on the basis of the rationale of the institution, to the assessment of the existence of the reasons justifying the anticipation of the evidence as a function of the protection of the victim from the trauma of the trial and/or the genuineness of the evidence itself“. Therefore, whenever the rejection order does not contain adequate reasons (or this is only apparent) for the reasons that prevail over the need to anticipate the taking of evidence, this is to be considered abnormal since it is an expression of an arbitrary exercise of the discretion granted to the judge by the legislature.
The position of the referring judges
Reconstructing the two different orientations, the Court inclines toward the latter on the basis of multiple arguments. First, according to the College, there are ” clear normative indications of the non-existence of a discretionary power to reject the request for “special” evidentiary incident provided by the first sentence of paragraph 1- bis of Art. 392 as opposed to the “ordinary” one typified in the first paragraph “.
The peculiar institution of the evidentiary incident, introduced with the 1988 code, has been subject to multiple amendments since 1996, where paragraph 1a was inserted to regulate a new hypothesis – defined by the Constitutional Court[14] as “atypical” or “special”-because it is freed from the ordinary prerequisite of the non-referral of evidence to the trial and, more generally, from the need for one of the conditions peremptorily provided for in the first paragraph of Art. 392.
The original hypothesis, which was limited to the testimony of the child under 16 in proceedings for crimes of sexual violence even outside the cases of the first paragraph, was already aimed at “protecting the personality of the child, enabling him or her to get out of the court circuit as soon as possible in order to help him or her get rid of the psychological consequences of the lived experience more quickly.”
Subsequent interventions[15], in compliance with Italy’s international obligations, have led to two immediate consequences: on the one hand, they broadened the perimeter of applicability of the case envisaged by the first sentence of paragraph 1 bis, with reference both to the catalog of crimes initially envisaged in 1996, and to the subjective perimeter of the testimonial evidence, extended to the testimony of the minor person (and no longer only of the infra-sixteen year old) and of the adult offended person; on the other hand, a second hypothesis of an “atypical” evidentiary incident was provided for, in which it is allowed, “in any case” and without any reference to the type of crime for which one is proceeding, the taking of the testimony of the offended person, when his or her condition of “particular vulnerability,” as defined by Art. 90 quater c.p.p. [16].
The Constitutional Court itself, which has been called upon several times to rule on the legitimacy of such provisions, has confirmed in the various legislative amendments that have followed one another over time“the desire to prepare a more effective system to support victims, facilitating their involvement in the emergence and investigation of criminally relevant conduct” (see Constitutional Court, Judgment No. 1 of 2021), as well as the “twofold rationale underlying this regulatory provision, one, external to the trial, of protecting the victim’s personality, and the other, endoprocessual in nature, of protecting the genuineness of the evidence” (cf. Constitutional Court, No. 14 of 2021).
The rule in question, therefore, pursues a twofold need, both to protect the witness, whether a minor or an adult offended person, from the so-called secondary victimization associated with the postponement or reiteration of hearings during the course of the trial, and to protect the evidence from risks related to the possible pollution of previous statements or their retraction[17].
Peraltro, sempre secondo i Giudici costituzionali, tale duplice finalità “se da un lato sorregge la disposizione censurata e il sistema normativo in cui essa si inserisce, dall’altro lato non fa tuttavia venir meno la sua già richiamata natura eccezionale, poiché essa, nel momento in cui consente l’ingresso di contenuti testimoniali in una fase antecedente a quella dibattimentale, sulla base, peraltro, di una presunzione di indifferibilità e di non rinviabilità di essi in ragione della natura dei reati contestati e della condizione di vulnerabilità dei soggetti da audire, introduce una deroga al principio fondamentale di immediatezza della prova“.
On the basis of these considerations, the referring panel considers that the first sentence of paragraph 1a of Art. 392 contains a real “presumption of vulnerability” of the victims of the specifically listed crimes, which does not allow for any discretionary assessment of the judge.
Discretion to which, on the other hand, is referred the assessment about the condition of “particular vulnerability” of the offended person, provided for in the second sentence of paragraph 1a, to be carried out in light of the criteria provided for in Art. 90 quater c.p.p..
For both hypotheses introduced by paragraph 1 bis, the additional presumption of non-deferrability of evidence would be in force since – unlike what is provided for the “ordinary” hypotheses of evidentiary accident – no assessment is required regarding the presence of serious impediments, infirmity, threats, etc., being able to expressly request the evidentiary accident “even outside the hypotheses provided for in paragraph 1.” According to the referring judges, “this solution also finds its foundation in reasons of a metagiuridical nature, related to the particular exposure of the vulnerable offended person to the incidence of multiple factors of a temporal, psychological nature (such as, for example, the difficulty of recalling events with a high emotional impact, the sedimentation of psychological patterns of removal or self-defense or, even, of self-blame and, ultimately, of alteration of the distribution of victim-role in the re-enactment of the fact), or relational (think of the high level of conflict with the suspect/defendant), which can result in forms of cognitive distortion (from the full retraction of statements initially made to their modification now “by reduction” now “by addition”)[18].
Ultimately, the special guarantees established for the conduct of the evidentiary incident (the cross-examination of the parties, the forms of the trial, the possibility of the request coming from the suspect himself) would allow full respect for the rights of defense and to a fair trial enshrined in both the Constitution and supranational sources.
The approach defined and argued by the referring judges – should it be accepted by the Supreme Court in United Sections – would, in the opinion of the writer, contribute to defining and consolidating the original objective pursued first by the supranational legislator and then by the national legislator, without, however, affecting the guarantees and rights of the person under investigation. And in fact, through the well-defined mechanism of the evidentiary incident, it would be possible to protect the victim from the now proven risk of secondary victimization caused by the need to relive the trauma suffered several times, through repeated recounting on several occasions, especially when this concerns minors or people who are particularly vulnerable due to the seriousness of the crime perpetrated; at the same time, this would in any case guarantee the suspect the acquisition of genuine declarative evidence, neither altered nor polluted, in full respect of the adversarial process between the parties and due process.
Prof. Avv. Roberto De Vita
Avv. Valentina Guerrisi
References
[1] Articles 572, 600, 600a, 600b, 600c even if related to pornographic material referred to in Article 600c.1, 600d, 601, 602, 609a, 609c, 609d, 609g, 609j, and 612a of the Criminal Code. [2] Cf. Ord. 27104 cited above. [3] Cass. SS.UU., 13.07.2023, no. 42603, El Karti. [4] Cf. Ord. 27104 cit. [5] Cass. Sez. VI, 15.07.2020 no. 24996; conf. Cass. Sez. VI, 28.10.2021, no. 46109. [6] Cass. Sez. I, 08.06.2023, no. 46821. [7] Cass. Sez. III, 28.05.2021, no. 29594. [8] Cass. Sez. V, 11.12.2020, no. 2554. [9] Cf. Ord. 27104 cited above. [10] Cf. Ord. 27104 cit. [11] Cass. Sez. III, 10.10.2019, no. 47572. [12] Cass. Sez. III, 05/16/2019, no. 34091. [13] Cass. Sez. II, 24.03.2023, no. 29363. [14] Const. court no. 92 of 2018. [15] Law Oct. 1, 2012, no. 172 of ratification and execution of the Council of Europe Convention for the Protection of Children against Sexual Exploitation and Sexual Abuse, done at Lanzarote on October 25, 2007; Law June 23, 2013, no. 77 of ratification and execution of the Council of Europe Convention on preventing and combating violence against women and domestic violence, signed in Istanbul on May 11, 2011; Legislative Decree. Dec. 15, 2015, no. 212 implementing Directive 2012/29/EU of the European Parliament and of the Council of October 25, 2012 establishing minimum standards on the rights, support and protection of victims of crime and replacing Framework Decision 2001/220/JHA. [16] “For the purposes of the provisions of this code, the condition of special vulnerability of the offended person is inferred, in addition to age and the state of infirmity or mental deficiency, from the type of crime, the manner and circumstances of the act for which proceedings are being taken. In assessing the condition, account shall be taken of whether the act is committed with violence to the person or with racial hatred, whether it is related to areas of organized crime or terrorism, including international terrorism, or human trafficking, whether it is characterized by purposes of discrimination, and whether the offended person is affectively, psychologically or economically dependent on the offender.” [17] Cf. Const. court no. 14 of 2021. [18] Cf. Ord. 27104 cit. [19] Download the text of the ordinance here.
