ITALY Law and Practice Contributed by: Giorgio Vagnoni, Alessio Di Pietro, Alessandra Mosca and Cesare Placanica, LAWP Studio legale e tributario
2.3 Obtaining Disclosure of Documents and Evidence From Third Parties Together with the measures described in 2.1 Disclo- sure of Defendants’ Assets , in Italy it is possible to obtain documents and evidence from third parties through disclosure orders, which may be released by the courts. Criminal Proceedings In addition to general measures to disclose evidence (see 2.2 Preserving Evidence ), additional remedies are granted to secure obtainment of evidence held by professionally qualified parties (eg, attorneys, notaries and investigators). These disclosures may include – upon request – acts and documents, data, information and computer programs, and anything else held by such parties by reason of their profession. However, the parties can refuse to fulfil the order if they declare that documents contain confidential information inher - ent to their profession. Such measures may also be invoked before the commencement of proceedings. Civil Proceedings Under Italian civil proceedings, the parties have an obligation to support their own cases by producing all the relevant evidence (Article 115 of the ICCP). How - ever, a party may face some obstacles in this process in cases where important proof is held by a counter - party or a third party. To overcome such hurdles, the court may – under Article 210 of the ICCP and at the request of a party – order the other party or a third person to disclose a document or any other item or asset deemed essential for the trial. Disclosure orders have the same limita - tions as established for civil inspection (see 2.1 Dis- closure of Defendants’ Assets ) – namely, orders must be essential for the discovery of relevant facts and must be carried out without causing serious prejudice to the involved party or third person, and the involved parties cannot be forced to violate professional or state secrets. In the event of non-compliance, the court may order the payment of monetary fines. When disclosure orders involve a third party, the court may require its direct participation in the trial. The third party may file an opposition against the disclosure order.
The court may also require a public authority to pro - vide written information regarding acts and docu - ments held by the public authority itself, which the court considers necessary to be acquired within the proceeding (Article 213 of the ICCP). The public authority must answer the request within 60 days, jus - tifying any refusal. 2.4 Procedural Orders Despite the due process principle embedded in the Italian Constitution, certain provisions allow for the issuance of special and provisional ex parte measures restricting this principle in some cases (albeit tempo - rarily). Civil Proceedings To obtain the measures referred to in 1.7 Prevention of Defendants Dissipating or Secreting Assets and 2.2 Preserving Evidence (ie, conservative and judicial seizure), the procedure requires the filing of an appli - cation to the competent courts. This is followed by a summary proceeding, with the participation of both claimant and defendant – at the end of which, an order is issued on the provisional measure. However, when there is the need to obtain an imme - diate order or the participation of the defendant may prejudice the application of these measures, the claimant may request an ex parte order for the issu - ance of the provisional measure. The court, having ascertained these needs, may immediately issue the order and postpone the debate to a hearing with the defendant, which must be held as soon as possible. At the hearing, the court may confirm, reform or revoke the urgent order. The Decree 149/2022 introduced the option to have a civil proceeding with simplified investigation, which allows a faster decision on the merits (albeit with full participation of the defendant), when the facts of the case are not controversial, when the request is based on documentary evidence, or when the request requires a non-complex investigation activity (Article 281-decies of the ICCP). The possibility of resorting to this simplified procedure has been extended by Decree 164/2024 to the oppositions provided for by Articles 615 (first paragraph), 617 (first paragraph) and 645 of the ICCP and, on an optional basis, to all cases
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