Analysis of Judgment No. 28265 of 2023: Testimony and Rights of the Defendant

Judgment No. 28265 of May 10, 2023, filed on June 30, 2023, offers an important reflection on the figure of the defendant in related offenses, with particular attention to their possibility of being examined as an assisted witness. In this article, we will explore the content of the judgment and its practical implications, as well as the regulatory references that support it.

The Legal Context

The Court of Cassation addressed the case of a defendant, S. A., who was in a particular legal situation. The central issue concerned the necessity of the notice under Article 64, paragraph 3, of the Code of Criminal Procedure, in the event that the defendant chose to exercise the right not to answer. The Court reiterated that, in the presence of statements already made by the defendant regarding the responsibility of others, it is not necessary to proceed with the notice, if the defendant has freely chosen not to exercise the right not to answer.

Regulatory References and Principles

Defendant of a related or connected offense who has not previously availed themselves of the right not to answer - Subsequent examination as an assisted witness - Notice under Article 64, paragraph 3, of the Code of Criminal Procedure - Necessity - Exclusion - Reasons. The defendant of a connected offense under Article 371, paragraph 2, letter b), of the Code of Criminal Procedure can be examined as an assisted witness in the forms provided by Article 197-bis of the Code of Criminal Procedure, without the need to proceed with the notices provided for by Article 64 of the Code of Criminal Procedure, in the event that they have already made, previously, statements about the responsibility of others, not availing themselves, by free choice, of the right not to answer. (In the reasoning, the Court specified that, in such cases, the provision of Article 210, paragraph 6, of the Code of Criminal Procedure applies, according to which the rules established by Article 197-bis of the Code of Criminal Procedure apply, among which the declarative one of the "right to silence" of the witness is not included, whose accusatory statements, instead, require external verification, in accordance with the reference to Article 192, paragraph 3, of the Code of Criminal Procedure).

This principle highlights the importance of understanding the role of the defendant within the criminal process and the ways in which they can be examined. The Court of Cassation has thus clarified that a formal notice is not necessary when the defendant has already taken a position and has not chosen to exercise the right not to answer, thereby eliminating a source of ambiguity during procedural phases.

Conclusions

Judgment No. 28265 of 2023 represents a significant step in defining the rights of the defendant and the methods of examination in criminal proceedings. The possibility of examining a defendant as an assisted witness, without the need for further notices, simplifies the proceedings and clarifies legal responsibilities. It is essential that legal practitioners take these indications into account to ensure a fair balance between the rights of the defendant and the need for evidential clarity in the criminal process.

Bianucci Law Firm