Inadmissibility of Statements: The Court of Cassation Clarifies Criteria with Judgment No. 9473/2025

In the realm of criminal law, the protection of individual guarantees is a fundamental pillar, particularly the right not to self-incriminate and the right to legal assistance from the earliest stages of investigation. The issue of the admissibility of statements made by individuals who should have been investigated but were heard as witnesses has always been a subject of debate. The Court of Cassation, with Judgment No. 9473 of January 21, 2025 (filed on March 7, 2025), intervenes with a crucial clarification on the criteria that determine the inadmissibility of such statements, offering valuable guidance for legal professionals and citizens.

The Principle of Inadmissibility and Article 63 of the Code of Criminal Procedure

Article 63, paragraph 2, of the Italian Code of Criminal Procedure (c.p.p.) is a cornerstone provision for the protection of defence rights. It establishes the absolute inadmissibility of statements made by individuals who, from the outset, should have been heard as persons under investigation or defendants. The ratio of this provision is clear: to prevent law enforcement and the Public Prosecutor's Office from circumventing the defence guarantees inherent to a suspect (such as the right to remain silent or to legal assistance) by interrogating a person as a witness, despite already possessing elements that would point to them as a potential perpetrator of a crime. Had the proceedings been conducted correctly, the person would have had access to fundamental rights that were denied to them. However, the key question has always been: when exactly do these "specific indications of guilt" arise that necessitate treating a person as a suspect?

Judgment 9473/2025: When Do Indications of Guilt Arise?

The ruling of the Second Criminal Section of the Court of Cassation, presided over by Dr. G. V. and with Dr. A. M. M. as rapporteur, addresses precisely this question. The Court partially rejected the appeal of A. M., a defendant in a criminal proceeding, and in particular examined the grievance concerning the inadmissibility of statements made by a drug buyer. The judgment emphasizes that a generic involvement in "matters potentially susceptible of giving rise to criminal charges" is not sufficient to trigger the inadmissibility under Article 63, paragraph 2, of the Code of Criminal Procedure. Something more concrete is required.

The absolute inadmissibility, under Article 63, paragraph 2, of the Code of Criminal Procedure, of statements made by individuals who should have been heard, from the outset, as defendants or persons under investigation requires the original existence of specific, even if not serious, indications of guilt against them, and this condition cannot be automatically inferred from the mere fact that the declarant was involved in matters potentially susceptible of giving rise to criminal charges against them.

This excerpt is the core of the decision. The Supreme Court reiterates that to activate the guarantee of Article 63, paragraph 2, of the Code of Criminal Procedure, "specific, even if not serious, indications of guilt" must exist from the moment the statements are made. This means that investigators must have concrete elements, albeit not necessarily robust enough to constitute full proof, that lead them to believe that person is the perpetrator or co-perpetrator of a crime. It is not enough for the individual to be involved in a complex situation or close to criminal acts; there must be specific reasons to suspect their criminal liability.

In summary, the assessment of indications of guilt must be:

• Original: Present from the very beginning of contact with law enforcement.
• Specific: Based on concrete and specific elements, not on mere conjecture or generic involvement.
• Current: The status of being a suspect must exist at the time of the statements and cannot be inferred retrospectively.

This orientation is fundamental for distinguishing between a mere witness who might provide useful information and a potential suspect who requires all the defence guarantees provided by law.

The Case of Harbouring an Offender and Article 384 of the Criminal Code

The judgment analyzed a specific case where a buyer of narcotic substances refused to disclose the name of the supplier due to "fear of retaliation." This behaviour, in principle, could constitute the crime of harbouring an offender (Article 378 of the Criminal Code), as it involves assisting a person in evading law enforcement investigations. However, the Court deemed the grievance of inadmissibility of the buyer's statements "manifestly unfounded," precisely due to the applicability of Article 384 of the Criminal Code. The latter provides for a ground for non-punishability for those who have committed a crime (such as harbouring an offender) because they were compelled to do so by the necessity of saving themselves or a close relative from serious and unavoidable harm to their freedom or honour.

In the specific case, the fear of retaliation, as ascertained by the investigators, made the ground for non-punishability applicable. Consequently, as there were no specific indications of guilt for a punishable offence (harbouring an offender) from the first contact with law enforcement, Article 63 of the Code of Criminal Procedure was not applicable. The buyer's statements, although they might initially have seemed to indicate harbouring an offender, could not be considered inadmissible because the conduct was covered by a ground for non-punishability. This practical example illustrates the importance of a careful and contextualized assessment of indications of guilt, which must also take into account any grounds for justification or non-punishability.

Conclusions: A Fundamental Balancing Act

Judgment No. 9473/2025 of the Court of Cassation establishes a firm stance on the inadmissibility of statements. It clarifies that the protection under Article 63, paragraph 2, of the Code of Criminal Procedure is not automatic for mere involvement in illicit matters but requires "specific" indications of guilt, assessed ex ante and also considering grounds for non-punishability. This orientation balances investigative needs and individual rights, strengthening the certainty and transparency of criminal proceedings. For professionals, the ruling highlights the importance of carefully qualifying the declarant's position from the preliminary investigation stage onwards.