The Court of Cassation Clarifies on Preliminary Hearing and the Right to Silence: Judgment 17826/2025

Criminal law is a constantly evolving field, where every judicial ruling contributes to defining the boundaries of justice and citizens' guarantees. In this context, the Court of Cassation, with Judgment no. 17826 of 19/03/2025 (filed on 12/05/2025), has provided an important clarification regarding preliminary hearings and the right of witnesses to refuse to answer during defence investigations. A decision that profoundly affects defence strategy and the discretion of the Judge for Preliminary Investigations (GIP).

The Regulatory Context: Defence Investigations and Preliminary Hearings

To fully understand the scope of the judgment, it is essential to recall two pillars of Italian criminal procedure: defence investigations and preliminary hearings. Defence investigations, governed by Article 391-bis of the Code of Criminal Procedure (c.p.p.), allow the defence to gather evidence in favour of the suspect or accused, including by hearing persons informed about the facts. These hearings, however, may conflict with the right to silence of the person being questioned, a fundamental guarantee in our legal system.

Preliminary hearings, provided for by Article 392 c.p.p., represent a crucial tool for "crystallising" evidence that, due to its nature, might no longer be available or could be altered during the trial. They allow evidence to be taken at a stage prior to the trial, under the judge's supervision and with the guarantees of adversarial proceedings. The judgment in question focuses precisely on the possibility of resorting to a preliminary hearing to re-hear someone who, during defence investigations, chose not to answer.

The Issue of the GIP's Order Being Abnormality

The core of the issue addressed by the Court of Cassation concerned whether the "abnormality" of an order by the GIP rejecting a request for a preliminary hearing could be established. A procedural act is considered "abnormal" when, although formally belonging to the procedural system, it falls outside of it due to its content or the effects it produces, causing a standstill in the proceedings or an unjustified infringement of fundamental rights. In such cases, the order can be appealed to the Court of Cassation, even if not provided for by law for that specific type of act.

In the case at hand, the defendant C. C., through her defence, had requested the GIP of the Court of Perugia to proceed with a preliminary hearing for the examination of witnesses who, during defence investigations, had exercised their right to refuse to answer. The GIP had rejected this request, and the defence had appealed this decision, arguing its abnormality.

Judgment 17826/2025: The Principle and its Meaning

The Court of Cassation, Fifth Criminal Section, presided over by P. R. and with P. E. as rapporteur, declared the appeal inadmissible, establishing a fundamental principle. Here is the principle summarising the decision:

An order by the judge for preliminary investigations rejecting the request, pursuant to Article 391-bis, paragraph 11, of the Code of Criminal Procedure, to proceed with a preliminary hearing for the taking of testimony or the examination of a person who, during defence investigations, exercised the right to refuse to answer questions, is not abnormal, as it does not cause a standstill in the proceedings, nor does it fall outside the procedural system, which leaves the decision on the merits of the request to the judge's discretionary power.

This principle is of crucial importance. The Court clarified that the GIP's denial cannot be considered abnormal for several reasons. Firstly, it does not cause a "standstill in the proceedings," meaning it does not irreversibly block the procedural path. The proceedings can continue, and the evidence may eventually be taken at trial. Secondly, the order does not fall "outside the procedural system," but falls fully within the judge's prerogatives. Article 391-bis, paragraph 11, c.p.p., and Article 392, paragraph 1, c.p.p., grant the GIP discretionary power in assessing the merits and necessity of the request for a preliminary hearing. This means that the judge must carefully evaluate whether the request is motivated by concrete needs and whether the legal prerequisites for anticipating the taking of evidence exist.

The GIP's decision, therefore, is not an arbitrary act, but the result of a considered evaluation that takes into account various factors, including:

• The necessity of the evidence for the final decision.
• The irreproducibility or potential alteration of the source of evidence.
• The actual relevance of the testimony to the overall evidentiary framework.
• Respect for the right to silence, which is a fundamental guarantee of the legal system.

The fact that a person has exercised their right to refuse to answer during defence investigations does not automatically grant the defence the right to obtain a preliminary hearing. The GIP must exercise its discretionary power, assessing whether, despite the previous silence, there is a real and urgent need to take that testimony at that specific stage.

Practical Implications and Conclusions

Judgment no. 17826/2025 of the Court of Cassation offers important food for thought for lawyers and legal professionals. It reiterates the centrality of the GIP's discretionary power in managing requests for preliminary hearings, especially when dealing with individuals who have already exercised their right to silence. Not every denial by the GIP is appealable for abnormality; it is necessary that the order truly falls outside the procedural system or causes an irreversible standstill.

For the defence, this means that requests for preliminary hearings, in these cases, must be particularly well-founded and based on objective reasons of irreproducibility or prejudice to the genuineness of the evidence, going beyond the mere desire to overcome the witness's previous silence. This ruling helps to better define the boundaries between defence guarantees and the need for efficient and non-abusive use of procedural tools, reaffirming the balance between the parties' rights and the judge's supervisory power in Italian criminal proceedings.