Art. 512 of the Code of Criminal Procedure and 'Posthumous Prognosis': The Court of Cassation with Judgment no. 11248/2025 Clarifies the Limits of Trial Readings

At the heart of every criminal trial beats the principle of the adversarial process, a fundamental pillar for ensuring a fair trial and the full defence of the accused. But what happens when a key witness cannot be heard directly in court? How is the need to acquire evidence balanced with the right of the accused to confront their accuser? It is on this delicate balance that Judgment no. 11248 of 13/03/2025 of the Court of Cassation intervenes, a ruling that offers clarity on the application of Article 512 of the Code of Criminal Procedure and on the criterion of the so-called "posthumous prognosis".

The Right to the Adversarial Process and Art. 512 of the Code of Criminal Procedure: A Delicate Balance

Our criminal procedural system, in line with Article 111 of the Constitution and Article 6 of the European Convention on Human Rights (ECHR), is based on the orality and immediacy of evidence. This means that evidence is, as a rule, formed during the trial, under the direct control of the parties. Art. 512 of the Code of Criminal Procedure represents an exception to this golden rule, allowing the reading of acts previously taken (for example, statements made during preliminary investigations) when their repetition in the trial has become impossible due to unforeseen events or circumstances.

This rule is crucial, but its application must be rigorous so as not to compromise the right to defence. The Court of Cassation, with this recent decision, has reiterated that "supervening impossibility" is not sufficient on its own: it must also be "unforeseeable". This is where the concept of "posthumous prognosis" comes into play, which the Supreme Court has definitively clarified.

'Posthumous Prognosis': The Core of Judgment 11248/2025

The Court of Cassation, in rejecting the appeal against the decision of the Court of Appeal of Genoa, has established an interpretive principle of fundamental importance. Here is the maxim that summarises the core of the decision:

In the context of trial readings pursuant to art. 512 of the Code of Criminal Procedure, the unforeseeability of the event that makes the repetition of the act impossible must be ascertained by the judge according to the criterion of "posthumous prognosis", through the ideal reproduction of the assessment made by the party interested in acquiring the statements, verifying its correctness according to canons of reasonableness, taking into account the factual circumstances then known or knowable, regardless of what actually happened. (Case in which the impossibility of repeating the act was considered not unforeseeable, given that, at the time of filing the complaint, the victim, a foreign citizen, had declared that, on the same day, she would collect her personal belongings and leave the house where she lived with the accused to return abroad to her family).

But what exactly does "posthumous prognosis" mean? It means that the judge must not assess the unforeseeability of the event based on what *actually* happened afterwards, but must ideally go back in time and ask whether, at the time the act was committed (for example, when a statement was made to the judicial police), it was reasonably foreseeable that the person would no longer be available for the trial. This assessment must be made with a criterion of reasonableness, based on the factual circumstances that were *then known or knowable*.

In the specific case examined by the Court, the victim, a foreign citizen, had expressly declared, at the time of filing the complaint, her intention to leave the country and return to her family abroad. This circumstance, being known from the outset, made her future absence from the trial *foreseeable*. Consequently, the impossibility of hearing her in court could not be considered "unforeseeable" within the meaning of Art. 512 of the Code of Criminal Procedure, precluding the reading of her previous statements. The accused P. could therefore not be convicted on the basis of statements not subjected to the scrutiny of the adversarial trial process.

Practical Implications for Criminal Proceedings

This judgment by the Court of Cassation has important practical implications for all legal professionals:

• For the Prosecution: It is essential to act with the utmost diligence to crystallize evidence in forms that guarantee its validity even in the event of the witness's subsequent unavailability (e.g., preliminary hearing), especially when there are elements that suggest such unavailability.
• For the Defence: The possibility of challenging the admissibility of trial readings is strengthened, invoking the foreseeability of the witness's absence and protecting the right to confrontation.
• For Judges: A clear methodology is provided for ascertaining unforeseeability, based on a retrospective and objective analysis of the circumstances.

The principle of "posthumous prognosis" is therefore a fundamental guarantee, aimed at preventing the use of statements made outside the adversarial process, unless the impediment to their repetition was truly unforeseeable and not attributable to negligence.

Conclusions

Judgment no. 11248 of 2025 by the Court of Cassation strongly reaffirms the centrality of the principle of the adversarial process in Italian criminal proceedings. Through the rigorous application of "posthumous prognosis", the Supreme Court protects the right to defence of the accused, ensuring that evidence is formed, as far as possible, during the trial and under the critical scrutiny of all parties. This decision not only provides an important jurisprudential update on Art. 512 of the Code of Criminal Procedure but also calls on all actors in the process to be more aware and diligent in managing sources of evidence, strengthening trust in justice and the fairness of our system.