Summary Judgment and Testimonial Evidence: Commentary on Ruling No. 25136 of 2023

Ruling No. 25136 of March 7, 2023, by the Supreme Court of Cassation has raised important issues concerning summary judgment and the taking of testimonial evidence. In particular, the Court established that the failure to summon a witness does not automatically result in the forfeiture of the right to examine such evidence, but rather imposes a duty on the judge to verify the relevance of the testimony for the ascertainment of the contested facts.

Context of the Ruling

The case under review concerned a summary judgment in which a witness had not been summoned. The Court of Appeal of L'Aquila had declared the forfeiture of the right to take testimonial evidence, holding that the failure to summon automatically rendered the witness unable to be examined. However, the Court of Cassation overturned this decision, emphasizing the importance of a more in-depth analysis.

Summary judgment conditioned on the taking of testimonial evidence - Failure to summon the witness - Forfeiture of the evidence - Exclusion - Judge's duty to verify its relevance - Existence. In the context of summary judgment conditioned on the taking of testimonial evidence, the failure to summon the witness does not cause automatic forfeiture of the party's right to examine them, but creates a duty for the judge to verify its relevance for the ongoing investigation, to be carried out according to the assessment already made at the time of admission of the procedure.

Analysis of the Decision

The Court clarified that, in the presence of a summary judgment, the omission of a witness summons should not automatically lead to forfeiture of the evidence. This approach aligns with the principle of a fair trial, provided for by Article 111 of the Italian Constitution and Article 6 of the European Convention on Human Rights, which guarantee the right to defense and the fairness of proceedings. The verification of the evidence's relevance rests with the judge, who must consider not only the form but also the content and importance of the testimony within the context of the trial.

• Importance of the relevance of evidence for the ascertainment of facts.
• Active role of the judge in evaluating testimonial evidence.
• Protection of parties' rights in criminal proceedings.

Conclusions

Ruling No. 25136 of 2023 represents a significant step in protecting the rights of parties in criminal proceedings. The Court of Cassation's decision not to automatically consider the failure to summon a witness as forfeiture offers greater protection to the right to defense and reflects a fairer and more just approach in evaluating evidence. This ruling calls on legal professionals to pay attention not only to the form of summonses but also to the content and relevance of evidence, emphasizing the importance of justice that is not limited to formal issues but focuses on the substance of the rights involved.