Gender-based violence, strengthened protection with early hearing of victims
According to the United Sections, the judge's decision refusing the evidentiary incident is abnormal. It is necessary to prevent the offended person from reliving the violence suffered
2' min read
2' min read
The vulnerability of victimsof gender violence must be considered presumed by law. This is why the reporting woman must be heard immediately, in an evidentiary incident in the adversarial process between the parties, so as to avoid making her relive, years later, the suffering she has endured.
The United Sections, with provisional injunction no. 18/2024, have thus resolved a contrast that has long divided the jurisprudence of legitimacy, branding as abnormal and therefore appealable to the Cassazione the measure by which the judge rejects the request for an evidentiary incident, concerning the testimony of the person victim of gender violence (article 392, paragraph 1-bis, first sentence, of the Code of Criminal Procedure) motivating the no on the non-vulnerability of the offended person and on the deferrability of the evidence. The decision taken by the Supreme Collegium at the hearing of 12 December last is in line with the path that had already been indicated by the referring section that, analysing the interventions on Article 392, paragraph 1-bis, that have followed one another over time, came to deny that the current configuration of the rule allows discretionary evaluations to the judge, once it has been ascertained that the witness to be heard is the person offended by one of theoffences included in the catalogue or a minor.
The need to strengthen the offices of the Gip and Gup
The President of the Court of Milan Fabio Roia expresses satisfaction with the decision of the United Sections. "The Supreme Collegium has indicated the ideal way to proceed, because it allows the evidence to be crystallised," says Roia, "and also encourages alternative rites. The rules to anticipate the hearing are already there, but it was not being done because the Gip and Gup do not have the strength. Now we need to strengthen those offices and at the same time train magistrates in listening'.
A choice of field that had already been made by the judges of the third criminal section who, in the order of referral, had emphasised how an early hearing responded to the twofold need to avoid the so-called secondary legitimisation, in line with the indications of the supranational jurisprudence of the European Court of Human Rights, and to protect the genuineness of the evidence.
