Analysis of Judgment No. 33648 of 2023: Remedies and Limits of Tacit Withdrawal of a Complaint

Judgment No. 33648 of June 28, 2023, filed on August 1, 2023, by the Court of Milan, offers an important reflection on the dynamics of tacit withdrawal of a complaint, in light of recent legislative amendments. In particular, Article 152, third paragraph, of the Criminal Code, introduced by Legislative Decree No. 150 of 2022, stipulates that the failure of the complainant to appear at the trial hearing results in the inadmissibility of the complaint, unless the individuals involved are vulnerable. This legal principle raises significant questions regarding the balance between the right to defense and the protection of victims.

The Regulatory Context of the Judgment

The provision in question is part of a regulatory framework aimed at making criminal proceedings more effective, limiting the possibilities of abuse by complainants who, for various reasons, decide not to appear in court. In this scenario, the judgment of the Court of Milan highlights that:

• Tacit withdrawal of the complaint is automatic in case of unjustified absence of the complainant.
• The judge has the duty to ascertain that the absence is indeed unjustified and not influenced by external pressures or conditioning.
• Specific protections exist for vulnerable individuals, as established by Article 152, fourth paragraph, of the Criminal Code.

The Role of the Judge and the Protection of Victims

Failure of the complainant to appear at the trial hearing - Tacit withdrawal of the complaint pursuant to Article 152, third paragraph, of the Criminal Code, introduced by Article 1, paragraph 1, letter h), of Legislative Decree No. 150 of 2022 - Existence - Limits – Protection of vulnerable victims - Judge's power and duty of ascertainment. The inadmissibility resulting from the tacit withdrawal of the complaint, provided for by Article 152, third paragraph, of the Criminal Code, introduced by Article 1, paragraph 1, letter h), of Legislative Decree of October 10, 2022, No. 150, follows directly from the failure, without justified reason, of the complainant summoned as a witness to appear, without prejudice to the provision of Article 152, fourth paragraph, of the Criminal Code for the protection of vulnerable individuals, as well as the judge's power-duty to ascertain that the absence is unjustified and to exclude any form of undue conditioning, by analogy with what is provided for by Article 500, paragraph 4, of the Code of Criminal Procedure.

The decision not to appear in court cannot be taken lightly, as it implies a series of legal consequences. The judgment clarifies that the judge must exercise a power-duty of verification to ensure that there has been no conditioning influencing the complainant's absence, especially in the case of vulnerable individuals. This aspect highlights the legislator's sensitivity towards the protection needs of the most fragile individuals, ensuring them a fair justice process.

Conclusions

In conclusion, judgment No. 33648 of 2023 represents a significant step towards greater protection for victims and effective management of procedural dynamics in criminal matters. Tacit withdrawal of a complaint, while it may appear as a procedural simplification, hides pitfalls that must be carefully evaluated and monitored by judges. The safeguarding of the rights of vulnerable individuals must remain at the center of the legal system's attention, ensuring that each case is treated with due care and respect.