The Court of Cassation Clarifies on Probatory Incident and the Right to Silence: Judgment 17826/2025

Criminal law is a constantly evolving field, where every judicial ruling contributes to defining the boundaries of justice and citizens' guarantees. In this context, the Court of Cassation, with Judgment No. 17826 of 19/03/2025 (filed on 12/05/2025), has provided an important clarification regarding the probatory incident and the right of witnesses to refuse to answer during defensive investigations. A decision that profoundly impacts defense strategy and the discretion of the Judge for Preliminary Investigations (GIP).

The Regulatory Framework: Defensive Investigations and Probatory Incident

To fully understand the scope of the judgment, it is essential to recall two pillars of Italian criminal procedure: defensive investigations and the probatory incident. Defensive investigations, governed by Article 391-bis of the Code of Criminal Procedure (c.p.p.), allow the defense to gather evidence in favor of the suspect or defendant, including through the questioning of persons informed about the facts. However, these interviews may conflict with the right to silence of the person being questioned, a fundamental guarantee in our legal system.

The probatory incident, provided for by Article 392 c.p.p., represents instead a crucial tool for "crystallizing" evidence that, due to its nature, might no longer be available or could be altered during the trial. It allows evidence to be taken at a stage prior to the trial, under the judge's supervision and with the guarantees of adversarial proceedings. The judgment in question focuses precisely on the possibility of resorting to a probatory incident to re-hear someone who, during defensive investigations, chose not to answer.

The Issue of the GIP's Order's Abnormality

The core of the issue addressed by the Court of Cassation concerned whether the "abnormality" of the order by which the GIP rejects the request for a probatory incident could be established. A procedural act is considered "abnormal" when, although formally belonging to the procedural system, it stands outside of it due to its content or the effects it produces, causing a standstill of the proceedings or an unjustified infringement of fundamental rights. In such cases, the order is subject to appeal to the Court of Cassation, even if not provided for by law for that specific type of act.

In the case at hand, the defendant C. C., through her defense, had requested the GIP of the Court of Perugia to proceed with a probatory incident for the taking of testimony from individuals who, during defensive investigations, had exercised their right to refuse to answer. The GIP had rejected this request, and the defense had appealed this decision, arguing its abnormality.

Judgment 17826/2025: The Maxim and Its Meaning

The Court of Cassation, Fifth Criminal Section, presided over by P. R. and with P. E. as rapporteur, declared the appeal inadmissible, establishing a fundamental principle. Here is the maxim summarizing the decision:

The order by which the judge for preliminary investigations rejects the request, pursuant to art. 391-bis, paragraph 11, of the Code of Criminal Procedure, to proceed with a probatory incident for the taking of testimony or the examination of a person who, during defensive investigations, exercised the right not to answer questions, is not abnormal, as it does not cause a standstill of the proceedings, nor does it fall outside the procedural system, which leaves the decision on the merits of the request to the judge's discretionary power.

This maxim is of crucial importance. The Court clarified that the GIP's denial cannot be considered abnormal for several reasons. Firstly, it does not cause a "standstill of the proceedings," meaning it does not irreversibly block the procedural path. The trial can continue, and the evidence may eventually be taken during the trial. Secondly, the order does not fall "outside the procedural system," but fully falls within the judge's prerogatives. Article 391-bis, paragraph 11, c.p.p., and Article 392, paragraph 1, c.p.p., grant the GIP discretionary power in assessing the merit and necessity of the request for a probatory incident. This means that the judge must carefully evaluate whether the request is motivated by concrete needs and whether the legal requirements for anticipating the taking of evidence are met.

The GIP's decision, therefore, is not an arbitrary act, but the result of a considered evaluation that takes into account various factors, including:

• The necessity of the evidence for the final decision.
• The irreproducibility or potential alteration of the source of evidence.
• The actual relevance of the testimony to the overall evidentiary framework.
• Respect for the right to silence, which is a fundamental guarantee of the legal system.

The fact that a person has exercised the right to refuse to answer during defensive investigations does not automatically grant the defense the right to obtain a probatory incident. The GIP must exercise its discretionary power, assessing whether, despite the previous silence, there is a real and urgent need to take that testimony at that specific stage.

Practical Implications and Conclusions

The Court of Cassation's Judgment No. 17826/2025 offers important food for thought for lawyers and legal professionals. It reiterates the centrality of the GIP's discretionary power in managing requests for probatory incidents, especially when dealing with individuals who have already exercised their right to silence. Not every denial by the GIP is appealable for abnormality; the order must genuinely fall outside the procedural system or cause an irreversible standstill.

For the defense, this means that the request for a probatory incident, in these cases, must be particularly well-founded and based on objective reasons of irreproducibility or prejudice to the genuineness of the evidence, going beyond the mere desire to overcome the witness's previous silence. This ruling helps to better define the boundaries between defense guarantees and the need for efficient and non-abusive use of procedural tools, reaffirming the balance between the parties' rights and the judge's control power in the Italian criminal process.