Probationary Incident and Vulnerable Victims: The Important Ruling of the Court of Cassation in Judgment no. 10869/2025

In the delicate balance between ascertaining procedural truth and protecting the most fragile individuals, Italian jurisprudence is constantly called upon to define boundaries and guarantees. It is in this context that the significant ruling of the Court of Cassation, judgment no. 10869, filed on March 18, 2025, intervenes with clarity on the issue of probationary incidents and the protection of vulnerable victims. A decision that marks a firm point, reaffirming fundamental principles for criminal justice and human rights.

The Probationary Incident: A Crucial Tool for Protection

The probationary incident represents an early stage of evidence gathering, carried out before the trial, which allows for the crystallization of evidentiary elements that may no longer be available or whose deferred acquisition could prejudice the genuineness or psychophysical health of the witness. It is a tool of fundamental importance, especially when the person called to testify is a victim of a crime considered vulnerable.

The Code of Criminal Procedure, particularly in art. 392, paragraph 1-bis, provides for specific cases where the probationary incident is not only opportune but necessary, especially for victims of particularly serious crimes, such as sexual violence, domestic abuse (art. 572 of the Criminal Code), or other offenses that by their nature generate a high risk of secondary victimization. The rule aims to protect the victim from further trauma resulting from repeated exposure to procedural events, while ensuring the irreproducibility of the evidence in a protected environment.

Judgment 10869/2025: A Brake on Abnormality

The Court of Cassation, with judgment no. 10869/2025, addressed an emblematic case in which the Judge for Preliminary Investigations (GIP) of the Court of Termini Imerese had rejected a request for a probationary incident. The Supreme Court annulled the measure without referral, qualifying it as "abnormal".

A measure by which the judge rejects, for lack of victim vulnerability or non-deferrability of the evidence, the request for a probationary incident concerning the testimony of the victim of one of the crimes included in the list referred to in art. 392, paragraph 1-bis, first period, of the Code of Criminal Procedure, is abnormal and, therefore, subject to appeal to the Court of Cassation, as these are prerequisites whose existence is presumed by law.

This maxim is of extraordinary importance. It clarifies that, for the crimes expressly provided for by art. 392, paragraph 1-bis, of the Code of Criminal Procedure, the victim's vulnerability or the non-deferrability of the evidence are not conditions to be proven on a case-by-case basis, but are presumed by law. This means that the judge cannot reject the request for a probationary incident based on their own assessment of the absence of these prerequisites, because the law itself already considers them to exist. A rejection measure, in such circumstances, is considered "abnormal," meaning an act that, due to its radical deviation from the legal model, is devoid of legal effect and immediately appealable to the Court of Cassation.

Practical Implications and Enhanced Protection

The ruling of the Court of Cassation, presided over by M. C. and with E. A. as rapporteur and judge, has several practical implications:

• **Certainty for Victims:** It offers greater certainty to victims of particularly serious crimes, ensuring that their testimony is collected in a protected context and without undue delay.
• **Judicial Standards:** It establishes a clear standard for trial judges, limiting discretion in rejecting requests for probationary incidents for the categories of crimes and victims provided for by the rule.
• **Procedural Efficiency:** It contributes to a more efficient process, preventing procedural issues related to vulnerability from delaying the acquisition of crucial evidence.
• **Compliance with European Principles:** It aligns with the principles of victim protection enshrined in the European Convention on Human Rights (art. 6) and the case law of the European Court, which emphasize the need for special treatment for vulnerable individuals in criminal proceedings.

This decision is in line with a jurisprudential path that, although not without past discrepancies, aims to strengthen the position of the victim, recognizing their particular fragility in certain criminal contexts. References to consistent precedents (such as Judgment no. 47572 of 2019) and to the United Sections (such as no. 20569 of 2018) highlight how the Supreme Court is consolidating an orientation in favor of greater protection.

Conclusions: A Step Forward for Justice

Judgment no. 10869/2025 of the Court of Cassation represents a significant step forward in the protection of vulnerable victims within the Italian criminal proceedings. By reaffirming the presumptive nature of vulnerability for certain categories of crimes, the Supreme Court has provided an essential tool to ensure that justice is not only fair but also sensitive and protective towards those who have already suffered trauma. This orientation not only strengthens the rights of victims but also contributes to a more humane and effective judicial system, where procedure serves substantive justice and the dignity of every individual.