Milan Court of Appeal Judgment no. 11743/2025: tacit waiver of complaint and acquisition of the complainant's statements

Judgment no. 11743 of 28/02/2025 (filed 25/03/2025) by the Milan Court of Appeal provides a relevant clarification on the issue of tacit waiver of complaint. The panel (President B. P., rapporteur G. R.) assessed whether Article 152, paragraph 3, no. 1) of the Criminal Code can be applied when the parties have consented to the acquisition of the complainant's statements during preliminary investigations and the latter was not subsequently summoned as a witness at trial.

Facts and legal issue

In the case examined, the defendant (L. P. M. S. G.) contested the application of the tacit waiver of complaint invoked by the civil party. The parties had agreed at trial to rely on the statements made by the complainant during the preliminary investigations. However, the complainant did not appear as a witness in court. The Court had to determine whether, in the presence of consent to the acquisition of statements, the failure to examine the complainant at trial is equivalent to a tacit waiver under Article 152, paragraph 3, no. 1) of the Criminal Code.

The ruling's headnote

In matters of tacit waiver of complaint, the provisions of Article 152, paragraph 3, no. 1), of the Criminal Code do not apply in cases where the parties have consented to the acquisition of statements made by the complainant during preliminary investigations and the latter, not summoned as a witness, does not appear at trial.

The Court therefore states that the formal reference to tacit waiver cannot apply when the parties have deliberately opted for the acquisition of prior statements. In other words, consent to the production of statements serves as a substitute and legitimizes the recording of those statements, preventing the complainant's non-appearance from automatically leading to the extinction of the action due to tacit waiver.

Practical implications and legislative references

The decision refers to the relevance of the norms introduced by Legislative Decree 10/10/2022 no. 150 and the transitional provisions of the new Code of Criminal Procedure, as well as the established guidelines of the United Sections cited in the reasoning. Some practical points to keep in mind:

• The parties' consent to the acquisition of the complainant's statements during the investigative phase can neutralize the effect of tacit waiver provided for by Article 152, paragraph 3, no. 1) of the Criminal Code;
• It is essential that the agreement between the parties on the usability of the statements is clear and documented in the preliminary phases;
• Defence counsel and public prosecutors must assess the advisability of summoning the complainant as a witness when their evidentiary contribution is expected at trial, to avoid procedural disputes.

The ruling is part of a line of case law (see headnotes 43636/2023 and 29959/2024) that rigorously interprets the conditions under which tacit waiver operates, emphasizing the prevalence of the parties' procedural will.

Conclusions

Judgment no. 11743/2025 by the Milan Court of Appeal provides important guidance: tacit waiver of complaint is not automatically imposed when the parties have agreed to the acquisition of statements made during preliminary investigations. For legal professionals, the warning is clear: document agreements on the use of statements and plan for the taking of evidence at trial to avoid unexpected procedural outcomes.