ITALY Law and Practice Contributed by: Giorgio Vagnoni, Alessio Di Pietro, Alessandra Mosca and Cesare Placanica, LAWP Studio legale e tributario
and records of social security institutions in order to acquire all information pertaining to the discovery of assets and claims to be enforced (Article 492-bis of the ICCP). Criminal Proceedings Criminal law provides the option to acquire docu - mentary evidence in order to disclose relevant infor - mation regarding the defendant (Article 234 of the Italian Code of Criminal Procedure), including digital documents and data stored abroad (Article 234-bis of the Italian Code of Criminal Procedure). Documents representing the terms and the means of the offence may be acquired regardless of the person/entity who owns them (Article 235 of the Italian Code of Criminal Procedure). Evidence may be obtained by several means (ie, inspection, search, seizure, order to disclose secret documents, wire-tapping) and can be searched for by authorities on third parties’ property, as well as by checking databases, documents, mail, information and software. All these activities and measures are ordered by the judicial authority. If evidence linked to the offence is found as a result of searching, it may be seized. Seizure may be car - ried out at third parties’ premises, including banks, IT providers, and telecommunications companies (Arti - cles 254-bis and 255 of the Italian Code of Criminal Procedure). By way of example, the judicial authority may proceed with the seizure of documents, values, sums deposited in current accounts and anything else from banks – even where contained in safety deposit boxes – when it has justified reasons to believe that they are pertinent to the offence, even if they are not registered in the name of the offender. 2.2 Preserving Evidence Procedures for preserving evidence in circumstances where it is feared that important evidence might be destroyed or suppressed are established both under criminal and civil procedural law. Criminal Proceedings The court may issue provisional measures – in par - ticular, probationary seizure (see 1.7 Prevention of Defendants Dissipating or Secreting Assets ) – when
it is necessary to preserve evidence in circumstances where there is a serious and actual fear that it may be destroyed or suppressed (Article 274a of the Italian Code of Criminal Procedure). Generally, investigations are conducted by public prosecutors’ offices and police officials (see 2.4 Pro- cedural Orders ). However, the defendant may also carry out parallel and additional investigations through an attorney in order to adequately protect the defend - ant’s right to defence (Article 327-bis of the Italian Code of Criminal Procedure) – for example, research - ing and requesting access to documents, interview - ing persons in possession of relevant information, accessing public and private properties – and with the support of private investigators. In certain instances (eg, when it is necessary to access private properties), the court’s authorisation is required. Civil Proceedings When there is a risk that evidence may be lost or dis - sipated (periculum in mora), prior investigation pro - ceedings can be activated. These allow a claimant to obtain the disclosure of evidence that is relevant and likely to be admissible (fumus boni iuris) before the start of a trial, on the merits. In such cases, the claimant may resort to one or more of the following remedies: • prior examination of witnesses (Article 692 of the Italian Code of Criminal Procedure), which may be required if there is a well-founded reason that one or more witnesses may not be examined when called in an ordinary trial; and/or • prior technical assessment and judicial inspection (Article 696 of the Italian Code of Criminal Proce - dure), which may be required if there is an urgency to verify – before the start of a trial – the quality and conditions of assets and places, which would not be the same if evidence assessment was post - poned until an ordinary trial starts. Prior evidentiary proceedings may also be requested after the start of a trial. These are in addition to the judicial seizure (see 1.7 Prevention of Defendants Dissipating or Secreting Assets ).
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