Commentary on Judgment No. 36766 of 2023: Renewal of Evidence in Remand Proceedings

The recent judgment No. 36766 of April 28, 2023, published on September 5, 2023, by the Court of Cassation, offers important insights into procedural dynamics in cases of annulment of judgments due to non-compliance with procedural rules. In particular, the Court addressed the issue of the inadmissibility of evidence and the possibility of its renewal in remand proceedings.

Context of the Judgment

In the specific case, the Court annulled a conviction decision due to the deemed inadmissibility of statements by a cooperating witness, which were acquired in violation of Article 238, paragraph 4, of the Code of Criminal Procedure. According to the principle established by Article 606, paragraph 1, letter c), of the Code of Criminal Procedure, the Court ruled that, in remand proceedings, the judge has the discretion to renew the testimonial evidence previously deemed inadmissible.

Annulment pursuant to art. 606, paragraph 1, letter c), Code of Criminal Procedure - Inadmissibility of evidence - Possibility for the remand judge to renew evidence - Existence - Factual situation. In remand proceedings following annulment for non-compliance with procedural rules established as grounds for inadmissibility, there is no limitation on the judge's investigative powers, who may therefore proceed with evidentiary supplementation by renewing the same testimonial evidence deemed inadmissible in the rescinding judgment and with respect to which the legal principle forming the basis of the annulment decision had been enunciated. (Factual situation in which the Court had annulled the conviction decision due to the deemed inadmissibility of the accusatory statements of a cooperating witness, made in a different proceeding and acquired in violation of the provisions of art. 238, paragraph 4, Code of Criminal Procedure).

Implications of the Judgment

This judgment is fundamental for understanding the limits and opportunities available to the judge in remand proceedings. The interpretation provided by the Court of Cassation clarifies that there is no limitation on the judge's investigative powers, who can supplement testimonial evidence. This means that, in cases of annulment for non-compliance with procedural rules, it is possible to renew testimonial evidence deemed inadmissible, provided that the new examination is conducted in compliance with the rights of defense and procedural guarantees.

• Renewal of evidence: the judge can re-examine evidence previously excluded.
• Inadmissibility: this is a central issue in procedural law.
• Rules to be observed: Article 238, paragraph 4, of the Code of Criminal Procedure must be observed.

Conclusions

In conclusion, judgment No. 36766 of 2023 by the Court of Cassation represents an important step forward in the protection of procedural rights. It confirms the possibility of renewing testimonial evidence in remand proceedings, thereby removing limitations that could compromise the ascertainment of truth. This decision aligns with jurisprudence aimed at ensuring a fair trial, as also provided for by the European Convention on Human Rights. The clarity with which the Court has addressed the issue of evidence inadmissibility will contribute to outlining a more equitable procedural framework that respects the rights of all parties involved.