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

Judgment No. 28265 of May 10, 2023, filed on June 30, 2023, offers an important reflection on the figure of a defendant in a connected offense, 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 legal references that support it.

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 pursuant to art. 64, paragraph 3, of the Code of Criminal Procedure, in the event that the defendant had availed themselves of 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 latter has freely chosen not to avail themselves of the right not to answer.

Legal References and Maxims

Defendant in a connected or related offense who has not previously availed themselves of the right not to answer - Subsequent examination as an assisted witness - Notice pursuant to art. 64, paragraph 3, Code of Criminal Procedure - Necessity - Exclusion - Reasons. A defendant in a related offense pursuant to art. 371, paragraph 2, letter b), Code of Criminal Procedure may be examined as an assisted witness under the procedures of art. 197-bis Code of Criminal Procedure, without the need to provide the notices required by art. 64 Code of Criminal Procedure, if they have previously made statements regarding the responsibility of others, without, by free choice, availing themselves of the right not to answer. (In its reasoning, the Court specified that, in such cases, the provisions of art. 210, paragraph 6, Code of Criminal Procedure apply, according to which the rules established by art. 197-bis Code of Criminal Procedure apply, among which is not included the statement of the witness's "right to silence," whose incriminating statements, instead, require external corroboration, pursuant to the reference to art. 192, paragraph 3, Code of Criminal Procedure).

This maxim highlights the importance of understanding the role of the defendant within criminal proceedings and the methods by which they can be examined. The Court of Cassation has therefore clarified that a formal notice is not necessary when the defendant has already taken a position and has not chosen to avail themselves of the right not to answer, thus eliminating a source of ambiguity during the procedural stages.

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 for legal professionals to consider these indications to ensure a fair balance between the defendant's rights and the need for evidentiary clarity in criminal proceedings.