Preliminary hearing in the trial of minors.
"The watershed between the trial phase, characterized by research on the sources of evidence, and the procedural phase directed at the formation of the test". (Conti-Macchia, the new child trial, 1989, page 99)
The preliminary hearing in the juvenile rite does not only fulfill the function of guaranteeing the validity and validity of the prosecution in court, which would be its own on the basis of the role recognized by the Legislator, but it becomes a natural seat destined to the definition of the process, thus allowing to the minor, a speedy exit from the trial circuit, avoiding, in fact the stigmatization, arising from his prolonged contact with the judiciary apparatus.
If, on the one hand, it aims, in fact, to ascertain the responsibility of the accused, it remains however a primary place for the preparation of educational projects and the recovery for the minor.
The preliminary hearing is governed by Articles 31, 32 and 32bis of the DPR 448 / 88 or, pursuant to art. 1 of the same text by the articles 416-437 of the criminal procedure code.
The same has always had enormous value in the proceedings against minors and has a wide scope of application.
In the trial against minors, the preliminary hearing does not take place only if we proceed with a direct or immediate judgment, the latter either in the typical form required by the PM or that required by the defendant, while in the other cases it is always mandatory.
The hearing, as required by art. 420 cpp, takes place with the chamber rite, with the drafting of a report, usually in summary form and in the presence of a judge and two honorary judges.
Once the parties are established, the preliminary requests or exceptions, such as jurisdiction, the meeting, and the separation of judgments, possible deductions of nullity, etc. must be proposed.
In this phase it is advisable that a request be made for a trial or an abbreviated procedure or both, even if the art. 438 cpp allows this possibility until the conclusions of the parties are formulated.
Before the L. 16 December 1999, n. 479 (Carotti Law) the preliminary hearing was the moment in which the PM deposited the file of the investigations carried out.
Only at that time of discovery, the accused came to full knowledge of the sources of evidence and could challenge the reconstruction of the facts and the basis of the accusation.
The Carotti law introduced art. 415 bis, notice of conclusion of the investigation, which anticipated this moment of knowledge at a preliminary stage.
If there is a cause for extinction of the crime, or for which the criminal action should not have been initiated or continued, if the fact is not provided for by the law as a crime, or when it is evident that the fact does not exist or that the accused does not committed it or that the fact does not constitute a crime, whether it is a person not attributable or not punishable, or if the elements acquired by the Public Prosecutor do not seem suitable to support the accusation in court, the Judge, in the ordinary procedure pronounces a sentence of no place to proceed pursuant to art. 425 cpp
However, this right, following the provisions of art. 32 co. 1 DPR 448 / 88, is precluded to the juvenile judge.
The same can pronounce sentence of no place to proceed only with the consent of the accused minors.
If the Judge considers it necessary to acquire further elements for the purposes of the decision, he can apply to the Public Prosecutor pursuant to art. 421 bis, setting a deadline for their completion.
It is important to note that the Judge of Preliminary Hearing can order, even ex officio, taking them at the hearing, the evidence of which the utility for the purposes of a judgment of a non-prosecuting sentence appears evident.
In the event of a sentence not to be taken due to a lack of imputability, both the 14-year-old infra-structure and the attributable minor, it is possible to provisionally apply a safety measure (pursuant to Article 37 with 1 DPR 448 / 88)
The co. 5 of the art. 31 DPR 448 / 88 clarifies that the injured party, although entitled to be notified and to attend the hearing, under penalty of nullity, cannot participate in the discussion and / or present conclusions.
The intervention of the offended person is therefore limited to the possibility of presenting briefs and indicating the evidence.
Therefore the possibility of the intervention of the injured party, who never takes on the quality of the procedural part, is eliminated (it cannot actually constitute a civil party), only his participation remains ad adiuvandum.
Also fundamental in this trial phase is the analysis of the minor's personality.
Article. 31 co 3 envisages that the operators of parental responsibility and the representative of the social services should be summoned and heard.
If from the criminal trial there emerges a situation of strong family hardship suffered by the minor, the Judge can order, also in that office, civil emergency measures (art. 31 co 4 DPR 448 / 88) such as:
- Removal of the child from the family home
- Placement in an institution
- Suspension of parents from responsibility
These provisions have limited effect: for 30 days; within the period indicated the Court must confirm, modify or revoke them.
Similarly, the Judge may, pursuant to art. 25 and 26 RDL 1404 / 1934, to transmit the acts to the Juvenile Court in administrative, for the adoption of the measures of the assignment to the social service or of the placement in institute.
Unlike what happens in the ordinary rite, in which the Judge for the preliminary investigations and the Judge for the preliminary hearing are monocratic, in the minor rite we have a different composition of the two organs: the first remains monocratic, with a hearing that usually takes place in room caritatis, the second assisted by two unskilled judges, a man and a woman (experts in the child issue: psychologists, sociologists, etc.)
Definitive possibilities of the Preliminary Hearing:
- Judgment of no place to proceed pursuant to art. 425 cpp
- Definitions with the abbreviated rite (note, the possibility of a plea bargaining under the prohibition of art. 25 DPR 448 / 88 is missing in the juvenile rite)
The request for an abbreviated procedure can be made only by the minor personally, or by the defender with a special proxy.
- Judgment of non-place to proceed by granting judicial pardon (if the same has given consent during the investigation or is present at the hearing) or irrelevance of the fact
- Absolution pursuant to art. 98 cp for ascertained immaturity of the subject
- Positive result of the test
- Condemnation of alternative sanctions pursuant to art. 32 co 2 and ss DPR 448 / 88
As it was possible to deduce, the preliminary hearing serves, therefore, as a real barrage, ending up relegating the proceedings to the margin of juvenile justice.
The Cecatiello Law Firm advises its clients for the best management of juvenile criminal proceedings.
Cecatiello Law Firm, Milan. Marriage lawyer, divorce lawyer, specialized in family law, child rights, juvenile criminal. Contact us.