ITALY Law and Practice Contributed by: Renato Fiumalbi, Simone Barnaba, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
to disputed facts; uncontested or widely recognised facts do not require evidence. Types of Evidence Evidence in Italian civil litigation can be classified based on various criteria: • By mode of development and submission in court: (a) pre-trial evidence, such as documents; and (b) evidence to be taken by the judge at trial, such as inspection, oath, confession, testimony and free questioning. • By effectiveness: (a) statutory evidence, such as notarised deed, legal presumptions, judicial confession and oath; (b) freely assessable evidence, such as testimony and simple presumptions; and (c) arguments of proof, such as conduct in court, which are not strictly evidence but serve to as- sess or reinforce existing evidence. • By subject: (a) direct evidence, such as testimony; and (b) indirect evidence, such as simple presump- tions. Court’s Powers Over the Evidence As to the court’s powers over the evidence, the court should ground the final decision on what the parties first claim and then prove, according to the principle of “parties’ disposal of evidence”. In this regard the court has the authority to: • assess the suitability and admissibility of the single evidence in the trial; and • evaluate the evidence according to its prudent assessment and free belief (except for statutory evidence). The court is not prevented from taking evidence on its own initiative, if needed. For example: • The judge may order the parties to appear for interrogation or conduct inspections of people or objects. • Witnesses may be called to provide information.
• The court can request written information concern- ing administrative acts or documents from the
public administration. 5.5 Legal Privilege
The Italian legal system recognises the concept of legal privilege (attorney-client or work product pro- tection) but only in very limited cases: • The legal privilege only applies in Italy to commu- nications between an external lawyer and a client relating to the client’s right of defence in a specific court case. • Italian courts have always applied the provisions on legal privilege restrictively. According to certain decisions of Italian courts (rendered in respect of the wiretapping of conversations between lawyers and clients, but which could also apply to other cases), the provisions on legal privilege do not prevent the authorities from collecting informa- tion, but rather from using it as evidence in case it is eventually established that it was protected by legal privilege. The key Italian law provisions on legal privilege are contained in the Code of Criminal Procedure (Arti- cle 103), laying down the rules applicable – and the extent, if any, to which the legal privilege applies – to searches, inspections and seizures of documents at the lawyers’ offices, the wiretapping of conversations or communications between lawyers and between a lawyer and the client and the seizure and control in general of the correspondence between the accused party and his defence attorney. Italian law also provides for the lawyers’ obligation of confidentiality and lays down the cases in which lawyers cannot be obliged to testify on facts of which they have obtained knowledge in the performance of their profession. Other similar provisions are contained in the Italian Law on the Legal Profession and in the Italian Code of Conduct for Lawyers. Special statutory provisions apply in certain matters. For example, the Italian Anti-money Laundering Law contains provisions aimed at balancing lawyers’ duty
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