The evidentiary hearing can protect the minor victim when making statements that are important for criminal proceedings. In Milan, as in the rest of Italy, the most delicate doubts often concern the hearing: will the minor have to recount the facts multiple times? Can direct contact with the suspect be avoided? Who can act in their best interest if a parent is involved in the matter?

I want to help you distinguish the concepts that truly matter. The evidentiary hearing is not a simple investigative interview, and the protected hearing is not a separate ritual: the former anticipates the taking of evidence before a judge, while the latter concerns the precautions with which the hearing can take place. Understanding this difference serves to protect the minor without confusing protection, representation, and the right to defense.

What the evidentiary hearing is

The evidentiary hearing gathers evidence prior to the trial. It takes place before the judge for preliminary investigations and may also be requested during the preliminary hearing, as recognized by Constitutional Court judgment No. 77 of 1994. The testimony is therefore not gathered solely by the judicial police or the public prosecutor, but in a hearing governed by cross-examination: the parties involved participate through the forms provided for by the code and can exercise their defensive rights.

For a minor, anticipating the hearing can be important because it allows statements to be acquired in a judicial setting without necessarily awaiting the trial stage. This does not mean deciding in advance whether the account is true. The judge gathers a testimony that must be considered alongside the other elements of the proceedings; the evidentiary hearing does not replace the final assessment of the evidence.

Article 392, paragraph 1-bis, of the code of criminal procedure allows, in proceedings for offenses expressly indicated by the rule, to request the anticipated taking of a minor's testimony even outside the ordinary cases of evidence that cannot be postponed. The request may come from the public prosecutor, also upon request of the offense victim, or from the person under investigation. The text of Article 392 of the code of criminal procedure identifies both the relevant offenses and the role of the subjects who can trigger the hearing.

When anticipated hearing can be requested

The hypothetical offense is the first data to consider. Article 392, paragraph 1-bis, refers, among others, to mistreatment against family members or cohabitants, exploitation and trafficking offenses, sexual freedom offenses, and stalking. In these proceedings, the young age of the person called to testify allows requesting the evidentiary hearing without also having to demonstrate the ordinary danger that the evidence will be lost before the trial stage.

However, the rule does not turn every statement by a minor into an automatic evidentiary hearing. The request must concern testimony useful to the proceedings. The act must be linked to the facts under investigation and the judicial authority must be able to define its content and modalities. Calling an interview a "protected hearing" is not enough to obtain a hearing: what counts is the applicable procedural discipline and the concrete need to gather that evidence.

The condition of particular vulnerability may also assume significance. Article 392 provides that the public prosecutor, also upon request of the victim, or the suspect may request the evidentiary hearing to take the testimony of the victim who is in such a condition. Vulnerability does not coincide solely with age. The type of offense, the relationship with the suspect, the risk of intimidation, communication difficulties, or circumstances exposing the victim to repeated victimization may have an impact.

The European perspective requires an individual assessment of protection needs and pays particular attention to minor victims. Directive 2012/29/EU on victims' rights and protection recalls, among other things, the possibility of special measures in the proceedings and the need to address any conflicts between the minor and those exercising parental responsibility. This criterion does not impose an identical solution for everyone, but avoids reducing the hearing to chronological age alone.

Protected hearing: what changes in the modalities

The protected hearing concerns the way the minor is heard. It does not necessarily coincide with the evidentiary hearing. The latter indicates the anticipated procedural setting in which evidence is formed; the protected hearing instead indicates the precautions that can make the act respectful of the minor and adequate to the needs that have emerged.

In the proceedings indicated by Article 398, paragraph 5-bis, of the code of criminal procedure, if minors are among the persons interested in the taking of evidence, the judge establishes specific location, time, and modalities when the protection of persons makes it necessary or appropriate. Precautions are decided by the judge, not by the family. They may concern a suitable environment, the organization of access, or modalities that avoid unnecessary visual contact with the suspect.

The Constitutional Court has reconstructed the connection between the evidentiary hearing and protected modalities, clarifying that the latter constitute a procedural protection of the minor's hearing, to be reconciled with cross-examination. For the relative framing, the text of Constitutional Court judgment no. 14 of 2021 published in the Official Gazette is useful. Protecting does not mean removing evidence from the rules. Questions must remain pertinent and the act must allow the exercise of rights recognized to the parties.

It is important to avoid a frequent mistake: preparing the minor to repeat a version of the facts. Support must not become suggestion. The minor needs simple information about the place and the people they will meet, not instructions on what they must say. Prompting repeated accounts at home, completing sentences, or comparing memories can weigh down the hearing and make it harder to preserve spontaneity.

Parents, conflict of interest, and counsel

The minor victim must be represented by someone who can independently look after their interests. As a rule, parents exercise functions connected to parental responsibility. The situation changes if a parent is a suspect, is an offense victim of related facts, must make potentially incompatible statements, or has an interest that conflicts with that of the child.

A conflict of interest is not a simple family tension. It can prevent effective representation of the minor. If it emerges, it must be promptly reported to the proceeding authority, because the solution depends on the act to be performed and the procedural position of the persons involved. In cases where domestic law does not allow holders of parental responsibility to represent the minor due to the conflict, the European directive provides for the appointment of a special representative.

The counsel of the minor offense victim does not replace the public prosecutor, who directs the investigations and formulates their requests to the judge. However, they can make the victim's powers effective. This includes support in understanding notices received, submitting briefs, and exposing the reasons why the public prosecutor should evaluate the request for an evidentiary hearing or specific precautions for the hearing.

How to limit repeated hearings without giving up evidence

Not all accounts by the minor have the same procedural value. A confidence made to a family member, a teacher, or a healthcare worker can be important to trigger protection, care, or a report. However, it does not automatically replace testimony gathered before the judge with the guarantees proper to the evidentiary hearing.

The need to avoid unnecessary repetitions remains central. For certain offenses and when conditions provided by law are met, the examination of someone who has already made statements in an evidentiary hearing is admitted only if it concerns different facts or circumstances or if the judge or a party indicates specific needs. A new hearing must not be taken for granted. Article 190-bis of the code of criminal procedure regulates these requirements in particular cases.

This limit does not create an absolute prohibition. If new circumstances or a specific procedural necessity emerge, the judge may have to evaluate further examination. The concrete reason for the request matters. The protection of the minor requires distinguishing a truly necessary deeper examination from the repetition of questions already addressed without a different subject or real utility.

What information is needed before the hearing

Protection needs must be represented in a concrete manner. Relevant factors include, for example, the age and expressive capacity of the minor, any linguistic or communication difficulties, the relationship with the suspect, the risk of meeting them, hearings already conducted, and the presence of care or support pathways that should not unnecessarily overlap with the procedural act.

It is advisable to keep communications received from the prosecutor's office or the judge, summons acts, and information useful for understanding the minor's needs. Instead, it is not useful to reconstruct the facts multiple times at home. If the hearing is imminent, the point is to promptly present the circumstances affecting the modalities of the hearing and verify that the minor is represented without conflicts.

Frequently asked questions

Is the protected hearing automatic for every minor victim?

No, the modalities are decided by the judge. Young age requires special attention, but location, timing, and precautions depend on the offense, protection needs, and personal circumstances. Neither audiovisual connection nor physical separation from the suspect are automatic: they must be measures pertinent to the hearing to be conducted.

Can I request the evidentiary hearing for my child?

You can present the need to the public prosecutor. In cases indicated by Article 392, paragraph 1-bis, the public prosecutor can request the evidentiary hearing also upon request of the offense victim. The judge then decides on the request and hearing modalities. If the minor is represented by an adult in conflict, that issue must be addressed before or together with the initiative.

Must the minor see the suspect?

Direct visual confrontation is not always necessary. When protection needs make it appropriate, the judge can establish particular modalities for the evidentiary hearing to avoid non-essential exposure. Protection, however, does not eliminate cross-examination: the parties maintain the faculties recognized by law in the formation of evidence.

Can the minor be heard again after the evidentiary hearing?

Repetition is not automatic. In cases regulated by Article 190-bis of the code of criminal procedure, a new examination requires different facts or circumstances from those already addressed or specific needs identified by the judge or a party. The rule does not exclude further hearings, but prevents them from being requested without a concrete procedural reason.

What happens if a parent is a suspect or has interests opposing the minor?

The representation of the minor must remain independent. If the parent is involved in the facts or finds themselves in a conflict of interest, the situation must be reported to the proceeding authority. Depending on the act to be performed and the position of other family members, it may become necessary to identify special representation that allows exercising the victim's rights without interference.

Assistance in the evidentiary hearing in Milan

Facing the hearing with clear roles reduces the risk of avoidable errors. The judge decides on the admission of evidence and precautions; the public prosecutor conducts investigations; whoever represents the minor must look after their interest without conflicts. If you need to understand a hearing notice, a parent's position, or prospective hearing modalities, you can contact me for a consultation on the procedural protection of the minor.