ITALY Law and Practice Contributed by: Giorgio Vagnoni, Alessio Di Pietro, Alessandra Mosca and Cesare Placanica, LAWP Studio legale e tributario
in which the court adjudicates in a single-judge com - position, even in the absence of the aforementioned prerequisites. The same Decree 149/2022 also provided for the option for the court – during the course of the civil proceeding and upon request by a party – to issue an immediately enforceable order approving or reject - ing the claimant’s requests when the facts are already proven and the counterparty’s claims appear mani - festly ungrounded (Article 183-ter and 183-quater of the ICCP). The approving order under Article 183-ter of the ICCP is modified by Decree 164/2024 provid - ing that the relevant provision, not further appealable, constitutes a title for the registration of a judicial mort - gage. Criminal Proceedings All the stages of criminal proceedings are separate, and distinguishing between a pre-trial phase and a trial phase is important. In the former, guarantees to the accused person are attenuated, whereas in the lat - ter the due process principle must be fully observed. Investigation is carried out at a pre-trial stage by the public prosecutor and the judicial police, at the end of which, the public prosecutor assesses the evidence in their possession and proposes either the indictment of the suspect or the dismissal of the investigation to the judge for preliminary investigation. Preliminary investigations need to be carried out with - out any risk of interference by the suspect or third parties, which may be detrimental to investigative efforts. For this reason, investigations start without prior notice to the defendant and all the relevant acts are subject to secrecy, until notice of indictment is delivered to the defendant. In situations requiring the presence of the defendant’s attorney (eg, examination of the suspect, inspections, technical assessments, research, and seizures), the public prosecutor’s office must send the defendant a notice of investigation indicating the alleged charg - es, together with an invitation to exercise the right to appoint a lawyer (Article 369 of the Italian Code of Criminal Procedure).
Furthermore, if a provisional measure is ordered (see 1.7 Prevention of Defendants Dissipating or Secreting Assets ), its issuance is carried out ex parte – although the suspect targeted with the pro - visional measure may challenge it by filing a request for review. The request for seizure is presented by the public prosecutor to the court, which will decide on the existence of the requirements and whether to ulti - mately approve the measure. 2.5 Criminal Redress A civil action can be exercised by the damaged party directly in a criminal trial, through the establishment of a civil party (Articles 74 et seq of the Italian Code of Criminal Procedure), or in a civil case that is then transferred to the criminal trial. This right, enforced by Decree 149/2022, must be exercised within the preliminary hearing. When a civil action regarding a crime is taken before a civil court, it may be transferred into a criminal pro - ceeding until a judgment on the merits has been pro - nounced in the civil proceeding (even if it is not final). Conversely, the civil action may continue in the civil proceedings if it is not transferred to the criminal pro - ceedings or if it has started when the incorporation in judgment of a civil party is no longer permitted. If the victim decides to bring the action in a civil court, this proceeding will be independent of a criminal trial. However, the court may still suspend the civil pro - ceeding where another trial is pending, which may affect the outcome of the decision at hand. The damaged party still has the option to directly act in the criminal proceeding or to initiate an autono - mous civil action for obtaining compensation for dam - ages suffered, taking into consideration that the civil proceeding – even if independent and despite being subject to a less rigid burden of proof – could in cer - tain cases be suspended pending the rulings of the criminal court. In the civil action, the damaged party must prove the facts regarding the claims for compensation. How - ever, in a criminal trial, the burden of proof regard - ing the elements constituting the offence lies with the
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