The Age of a Minor Witness Does Not Limit the Evidentiary Incident: The Cassation Court Ruling No. 23115/2025

Justice, particularly criminal justice, often faces the delicate challenge of hearing and protecting the most vulnerable victims, including minors. The collection of their testimonies is a crucial moment in the proceedings, which must balance the need to ascertain the truth with the need to safeguard the child's psychophysical integrity. In this context, the recent ruling No. 23115 of March 26, 2025, filed on June 20, 2025, by the Court of Cassation, proves to be of fundamental importance, drawing a clear line on the matter of evidentiary incidents and the testimony of minors.

The provision, issued by the Third Criminal Section with President A. A. and Rapporteur S. C., annulled without referral a decision by the Preliminary Investigations Judge (GIP) of the Court of Pescara, which had rejected a request for an evidentiary incident filed pursuant to art. 392, paragraph 1-bis, first period, of the Code of Criminal Procedure. The reason for the rejection was the age of the victim, a minor of just three years. The Supreme Court stigmatized this approach, qualifying it as an "abnormal act" and reaffirming the absolute primacy of the protection of minors.

The Regulatory Framework and the Vulnerability of Minors in Criminal Proceedings

The evidentiary incident, governed by articles 392 et seq. of the Code of Criminal Procedure, is a procedural tool that allows for the early taking of evidence (such as testimony) during preliminary investigations, when there is a risk that it may no longer be obtainable at trial or that its delayed taking may compromise its reliability. Art. 392, paragraph 1-bis, c.p.p., in particular, provides for specific cases for admitting an evidentiary incident when proceedings are for particularly serious crimes and in the presence of victims in conditions of particular vulnerability.

Article 90 quater of the Code of Criminal Procedure clearly defines conditions of vulnerability, among which advanced age or minority stands out. For minors, the law presumes a condition of vulnerability that requires a cautious and protective approach. This means that the need to obtain the testimony of a minor, especially in sensitive contexts such as crimes of mistreatment (art. 572 c.p.) or sexual violence (art. 609 bis c.p.), must be addressed with the utmost attention and, often, with the anticipation of evidence through an evidentiary incident.

The logic underlying these rules is twofold: on the one hand, to prevent the minor from having to relive the trauma multiple times by recounting the events; on the other hand, to ensure that the evidence is collected at the most opportune moment, preserving its spontaneity and reliability, before time or other circumstances can alter the memory or the ability to express oneself.

The order rejecting the request for an evidentiary incident pursuant to art. 392, paragraph 1-bis, first period, of the Code of Criminal Procedure, issued due to the age of the declarant, is abnormal, as the latter cannot be considered a personal condition that makes the examination impracticable, as this would introduce a limit to the admissibility of the institution not provided for by law and would also circumvent the presumptions of witness vulnerability and the non-postponement of evidence provided for by the aforementioned provision. (Case concerning a minor of three years of age).

This maxim of the Court of Cassation, extracted from the ruling under review, crystallizes the fundamental principle of the decision. The core of the issue lies in the qualification of the rejection as an "abnormal act." In Italian criminal procedural law, an abnormal act is a judicial measure that, although formally issued by a judge, is so radically flawed as to be considered non-existent or otherwise capable of causing the regression of the proceedings to a previous stage or an unacceptable standstill. In essence, an abnormal act is a procedural error so serious as to compromise the entire regularity of the proceedings.

The Cassation Court clarifies that the age of the minor, even if very young (as in the specific case of a three-year-old child), cannot in itself constitute an obstacle to taking testimony through an evidentiary incident. On the contrary, minority strengthens the need for such a tool, as it falls within the "presumptions of witness vulnerability and the non-postponement of evidence." Rejecting the evidentiary incident based solely on age would mean introducing a limit not provided for by law, going against the spirit of the rules designed to protect minors and to ensure the correct acquisition of evidence.

Implications of the Decision: Protection and Guarantees for Minors

Ruling No. 23115/2025 has significant repercussions on how minors' testimonies are handled in criminal proceedings. Here are some key points:

• Priority to Protection: It is reiterated that the protection of minors is a primary value that must guide procedural choices. The evidentiary incident becomes an essential tool to prevent further trauma and ensure a protected environment for listening.
• Overcoming Prejudices: The ruling contributes to overcoming the idea that a very young child cannot be a reliable witness. The capacity to testify is not rigidly linked to age, but rather to the ability to understand and report facts, which must be assessed on a case-by-case basis with adequate psychological and technical tools.
• Specific Tools: The ruling implies the need to adopt the methods for taking evidence provided for by art. 398 c.p.p., which allow for the examination of the minor with the assistance of experts (psychologists, child neuropsychiatrists) and the use of specific techniques (such as listening in protected environments, with one-way mirrors or remotely), aimed at minimizing the child's distress.
• Prevention of Abnormal Acts: The qualification of a rejection based on age as an abnormal act sends a clear signal to the trial judges, urging them to scrupulously apply the rules protecting minors and not to create unjustified obstacles to evidentiary incidents.

Conclusions: A Step Forward for Juvenile Justice

The ruling of the Court of Cassation No. 23115/2025 represents a significant step forward for juvenile justice and for the protection of the rights of children who are victims of crimes. It reinforces the awareness that age, even the youngest, cannot and must not be a pretext for denying access to justice or for delaying the acquisition of fundamental evidence. On the contrary, the inherent vulnerability of minors requires even greater attention and the adoption of all procedural tools, such as the evidentiary incident, aimed at ensuring protected and timely listening.

Our Law Firm has always been committed to defending the rights of minors and to the rigorous application of the rules that protect them, convinced that fair justice must, first and foremost, be justice attentive to the most vulnerable.