Tools in Network: an E-Net Approach to Sharing Mediation Competences.

Minors as Victims in Criminal Proceedings

The problems are compounded if the victims are minors. In that case, the judicial proceeding - whether against juveniles or not - is at risk of becoming twice as shocking. Along with the general requirement to afford adequate protection to victims, there is an additional issue to be tackled - i.e. paying due attention to the special vulnerability of young victims. It should be ensured that the damage suffered because of the offence is not compounded by the institutional violence brought about by the judicial proceeding. This is an area where the shortcomings of the legal system are especially remarkable.

Apart from the difficulties related to filing the criminal report - including those that have to do with determining who is entitled to file such claim as regards all the criminal offences that may not be prosecuted ex officio - and without considering the issues related to collecting the criminal information preferred, the solutions so far implemented in order to hear minors would appear to be especially unsatisfactory. This issue, which is to be attached major importance by any legal system that is keen to protect the interests of weaker parties in general, and minors in particular, was addressed only episodically (see C. Moro, Manuale di diritto minorile, Zanichelli 2002, p. 428 et seq.). The current system does not envisage any measure as for the hearing of juvenile victims in the pre-trial phase by either the police or public prosecutors.

Special precautions are only envisaged in respect of sex crimes. They include the possibility to hear an under-16 minor as witness in the pre-trial phase by making a request for the taking of evidence to be used at trial (pursuant to section 392 of the Criminal Procedure Code). However, this is unsatisfactory as a solution under several respects, i.e. even apart from and beyond its objective limitations - given that the taking of evidence to be used at trial is only admissible in respect of sex crimes. Indeed, the request at issue may only be made by either the public prosecutor or the accused, i.e. it may never be lodged by the victim; secondly, this is only regarded as an optional tool; thirdly, where several defendants are involved and even only one of them has not been present at the pre-trial hearing of the witness, the evidence in question will have to be taken during the trial. Furthermore, in these cases it is possible for the hearing to be performed under protection - i.e. with the help of a mirror glass and a remote audio system - upon the request made by the minor and/or the counsel for the minor.

As for the trial phase, section 498(4) of the Criminal Code provides that minors be heard by the judge presiding over the panel based on the questions made and/or objections raised by the parties. Again, specific provisions apply only in respect of sex crimes. Indeed, the protection afforded is flawed under many respects.

Firstly, the cases in which evidence may be taken to be used subsequently at trial are rather limited in scope. It is no mere chance that a recent decision by the European Court of Justice (Pupino case, C-105/3) found that the Italian provision (i.e. section 398(5-bis) of the Criminal Procedure Code) restricting the use of "protected" hearings to sex crimes only was clearly in conflict with the Framework Decision dated 15 March 2001. Pursuant to the decision by the ECJ, Member States should afford victims, in particular the more vulnerable ones such as children, the opportunity to be heard as witnesses without being exposed to the dangers of a public hearing and in accordance with specific safeguards. The conflict with the European law should be coped with by construing the domestic legislation to include all the cases that are liable to be markedly prejudicial to minors. More in-depth considerations on this decision can be found in E. Selvaggi, L'incidente probatorio apre le porte all'audizione protetta senza limiti, in Guida al diritto 2005, no. 26, p. 77 et seq.

At the same time, it would be necessary to re-consider the provisions applying to the testimony of children in general so as to rule out that a minor may be heard whenever it is inappropriate for the facts at issue to be recollected - in the minor's interest and for the sake of his/her mental and bodily health.

There are two pieces of legislation that have been exploited most recently by courts in Italy in order to limit the hearing of minors that are victims of criminal offences.

First and foremost, reference should be made to the provisions regulating indirect testimony (section 195(3) of the Criminal Procedure Code). Under these provisions, persons that were present on the occasion the direct testimony was given may be summoned to bear witness to the facts at issue if giving testimony directly has become impossible on account of the witness's having deceased, fallen ill, or being nowhere to be found. According to Italy's Court of Cassation, this provision is also applicable under different circumstances, e.g. if it is necessary to protect a minor against the trauma of recollection (see M. Bouchard, Le garanzie processuali per la vittima minorenne, ibid., p. 289 et seq.)

Secondly, there is a provision regulating the "reading out, during the trial, of the statements made in the course of investigations" (section 512 of the Criminal Procedure Code). This is allowed for, as a rule, whenever hearing a witness has become impossible because of unforeseeable circumstances. Such impossibility - in the Court of Cassation's view - should not be construed restrictively, i.e. merely as a physical and/or material hindrance; rather, it should be assessed in a broader perspective by taking account of the specific conditions applying to the witness in question - whereby the latter is no longer fit for being heard as a witness (see decision dated 25 September 2000 by the Court of Cassation, III Division, Galliera, in Cass. Pen 2002, p. 614).