Starting from March 2023, with the Cartabia Reform, important changes have been introduced regarding family abuse and domestic violence.
The aim is to speed up the process and strengthen protections for victims.
In particular, for those who are victims of violence and want to separate, it will be possible to propose a single appeal to the Judge according to the forms of the new art. 473 bis 41 cpc
This Reform regulates the possibility for the Judge to order the abbreviation of all terms up to half and of means of proof suitable to guarantee a rapid handling and an immediate response of justice.
If two spouses separate and in the proceedings facts of violence or abuse are alleged, the Gthe judge must refrain from attempting conciliation and from inviting the party to turn to a family mediator. Any family mediation process undertaken will be immediately interrupted.
The need for greater attention to the phenomenon was felt following the alarming spread of domestic violence episodes, thus inducing the Legislator to dictate specific rules to guarantee full protection to the victims.
In fact, the aforementioned proceedings now enjoy a fast track and will therefore be handled more quickly and characterised by specific procedural activities which will also allow for immediate verification of whether the party's allegations are well-founded or not.
The so-called Red Code (L. n. 69/2019) had already provided for changes to criminal procedure, which would allow for the simultaneous presence of civil proceedings for separation between spouses or cases for the custody of minors to be taken into account.
With the new art. 64 bis of the implementing provisions of the criminal procedure code, it is foreseen "When proceeding for crimes committed against a spouse, cohabitant or person linked by an emotional relationship, even if it has ceased, and proceedings relating to the personal separation of the spouses, the dissolution or cessation of the civil effects of marriage, the dissolution of a civil union or parental responsibility are pending, the public prosecutor shall notify the proceeding Judge without delay, unless the documents are covered by the secrecy referred to in art. 329 of the Code of Criminal Procedure. He shall proceed in the same way when proceeding for crimes committed against minors by parents, other family members or persons cohabiting with them, as well as by a person linked to the parent by an emotional relationship, even if it has ceased, and proceedings relating to parental responsibility, its exercise and maintenance of the minor are pending.
1-bis. In the cases referred to in paragraph 1, the public prosecutor shall transmit to the civil judge or the juvenile court proceeding a copy of the orders applying personal precautionary measures or ordering their replacement or revocation, as well as a copy of the notice of conclusion of the preliminary investigations and of the investigation documents not covered by the secrecy referred to in Article 329 of the Code. A copy of the sentence that defines the process or of the archiving decree shall also be transmitted to the same judge, by the registry office”.
Therefore, the aforementioned article establishes that the criminal judge must "obligatorily" and "without delay" transmit to the civil judge a copy of the provisions adopted in the criminal proceedings for the crime of domestic or gender-based violence, including orders relating to personal precautionary measures, notices of conclusion of preliminary investigations, archiving provisions and conviction sentences. Furthermore, Law no. 134/2021 (art. 2 paragraph 12) has extended the obligation also to the cases of attempted crime.
It must be said that before the Cartabia Reform the law already provided for civil protection instruments for the victims and their children. In fact, the victim could turn to the civil judge with a specific appeal.
In a previous article I have already spoken to you in depth about theprotection order.
However, if the victim had also wanted to separate and obtain a regulation of their mutual relationships and those with their children, they would have had to activate a separate judgment, separate from the first, a separation judgment in fact.
It was therefore necessary to take a double path with duplication of procedures, stress and legal costs.
The Cartabia Reform maintained the possibility of immediately requesting only the protection order in case of physical or moral violence, but in addition to this, it introduced the possibility of requesting, with a single judgment, both the separation and the order of removal of the violent spouse.
The form of the application is that of an appeal.
The Lawyer, in the same application with which he requests separation, must immediately indicate the means of proof and documents. In the case of minor children, the elements to reconstruct the income and assets of the parties and must give an account of the definitive or pending proceedings relating to abuse or violence, attaching in addition to the relevant provisions also a copy of the investigations carried out and the minutes relating to the taking of summary information and testimonial evidence. He must therefore describe the conduct of physical, economic, psychological or sexual violence held by the other spouse or cohabitant.
Faced with this, the Judge will have to proceed without delay, carrying out the necessary checks and investigations in order to decide whether to issue provisional measures.
To this end, he must ask the Public Prosecutor and other competent Authorities whether there are any proceedings relating to abuse and violence that are underway or have already been decided.
The Public Prosecutor and other Authorities to whom such a request will be addressed have a deadline of 15 days to respond and send all the information.
The Judge will set a hearing in which to listen to the parties but, in order to protect the safety of the alleged victim of violence, he may avoid the simultaneous presence of the parties inside the courtroom.
When the victim of the abuse or violence reported has been placed in a protected placement, the Judge, if he deems it appropriate for his safety, may order the address where the victim lives to be kept secret. There are also rules to avoid the so-called secondary victimization.
We speak of secondary victimization when the same Authorities called to protect the victim they underestimate the violence and do not adopt the necessary protections towards the victim to protect her from possible conditioning and repetition of violence.
In order to avoid this risk, the new legislation provides that the parties are not required to appear in person at the hearing.
The Judge may order the hearing remotely or establish time slots for the comparison of the parties in order to avoid their meeting.
However, if the parties appear, as stated, it is expected that the Judge will not attempt conciliation nor invite the parties to turn to a family mediator.
In the event of presence in the courtroom, the Judge listens to the parties by proceeding to free questioning on the alleged facts and may also avail himself of experts or other assistants with specific expertise in the matter. He may also take summary information from persons informed of the facts, may listen to witnesses and acquire intervention reports from the Police Forces.
The Judge may acquire documents ex officio or assume ex officio any other means of evidence in compliance with the adversarial procedure, in order to ascertain the validity or otherwise of the alleged facts. In the case of minor children, the Judge proceeds personally, without delay, to listen to the minor but must avoid any contact between the latter and the person indicated as the perpetrator of the violence.
Finally, once all the investigations have been carried out, if the Judge finds the allegations to be well-founded, he/she adopts the most suitable measures to protect the victim and the minor. If he/she then deems it necessary to protect the victim and the minor child, he/she can order the intervention of social services, regulating the right of visitation of minors in such a way as not to compromise the safety of the persons to be protected. The measures are those provided for protection orders pursuant to art. 473 bis.70 cpc
As already mentioned, the only option available is to appeal to the Judge for the sole purpose of obtaining a protection order, whereby the alleged victim requests that the Magistrate order the perpetrator of the violence to immediately leave the family residence and the places
Protection orders can last up to one year.
