ROMA (ITALPRESS) – It does not violate the principles of equality, of compulsory criminal action and of reasonable duration of the process the discipline of the new “predibatory hearing”, introduced by legislative decree number 150 of 2022, in the part where it does not attribute to the judge the power to assume evidence of which clearly appears decisiveness for the purpose of a sentence of no place to proceed. It was established by the Constitutional Court with the judgment number 58, filed today, with which it considered not founded various questions raised by the Court of Siena.
The reform of 2022 predicted that, in proceedings under direct reference to judgment by the public prosecutor in which no preliminary hearing is foreseen, the debate is preceded by a “filter” or “predibattimental” hearing, in which a series of preliminary audits are entrusted to the judge, including the assessment if the elements acquired during preliminary investigations allow a reasonable forecast of conviction.
In the event of a failure, the court shall be obliged to give an immediate ruling of no place to proceed.
According to the Court of First Instance, the judge of the pre-debate hearing – in order to be able to fully carry out this assessment – should also be able to acquire evidence that is decisive for the purpose of the decision not to proceed, as can the judge of the preliminary hearing. The Court did not share this view.
The Consulta recalled that the pre-debate hearing was introduced by the legislator to allow a judge to immediately verify the actual need for a debate, in view of the fact that more than half of the direct citation proceedings ended, before the reform, with absolution. A process destined for a foreseeable absolute outcome – the Court continued – entails a waste of energies of the already overloaded criminal justice system, and also produces an “irreasonable compression of constitutional rights (personal and patrimonial) of the defendants, whose existence is always upset by the slope of a criminal process, which often causes serious prejudices to their professional and relational life”.
The Court also reiterated that “a criminal action required in accordance with the logic of Article 112 of the Constitution” is “only a criminal action exercised with caution and responsibility, based on complete investigations, which did not neglect the evidence for the defendant”.
The public ministry – to which the Constitution guarantees independence from any other power to avoid undue conditioning and to ensure the equal application of the criminal law to all defendants – is therefore required to exercise the criminal action only if, at the outcome of complete investigations, the news of crime is indeed “beset by evidence of this consistency and consistency to make reasonable condemnation in judgment of the defendant, to the standard.”
Where, on the other hand, the news of crime has remained not sufficiently found, despite the conduct of actual and diligent investigations, the opposite rule of renunciation of the exercise of the criminal action will be imposed, and the consequent obligation to request the archiving of the proceedings.
All this, it cannot be held that, in the event of the lacunosity of the investigations highlighted by the applicant – i.e., if the public prosecutor has in concrete omitted to seek or attach individual evidence to the defendant – one must necessarily remedy the predibate hearing. In direct citation processes, in fact, such a pathology may be promptly remedy during debate, which is usually intended to be defined within one or a few hearings.
The failure to provide for a court’s power to take evidence for the defendant does not even determine an unreasonable disparity in treatment with respect to the discipline of the preliminary hearing, nor is it contrary to the principle of reasonable duration of the trial.
In fact, the pre-discussion hearing presents a different logic and structure than the preliminary hearing and is in a different phase of the criminal proceedings. As for the length of the time-limits, on the other hand, nothing guarantees that the anticipation of a trial in the pre-discussions by the judge is indeed decisive, since it is indeed possible that it – acting as a rule referral to another hearing – is translated into a total lengthening of the time of definition of the process, especially where the test itself should be repeated during the debate.
– Photo IPA Agency –
(ITALPRESS).
