ITALY Law and Practice Contributed by: Giorgio Vagnoni, Alessio Di Pietro, Alessandra Mosca and Cesare Placanica, LAWP Studio legale e tributario
public prosecutor, who has extremely effective means of seeking evidence. It is also worth mentioning that an acquittal sentence in a criminal trial in favour of the defendant also affects the rights of the claimant, as they may be prevented The parties have the right – but not the obligation – to take part in a trial. This considered, a judgment with - out trial may still occur in a trial where the defend - ant wilfully and knowingly fails to participate, despite being aware of its existence. In criminal proceedings, if a defendant decides not to appear, the court first has to verify whether they have actual knowledge of the proceedings against them. Once actual knowledge has been ascertained, the rel - evant trial continues even without the presence of the defendant, but they will continue to be represented by an attorney appointed by the court. from pursuing their civil claims. 2.6 Judgment Without Trial In civil proceedings, if the defendant decides not to take part in a proceeding (after the court has ascer - tained that they have been properly notified of the existence of the proceeding), the latter can continue without the defendant’s participation. The defendant is kept informed about the main events of the pro - ceeding (such as acts containing new claims, coun - terclaims, and court orders), and they will have the right to join it at any time until the hearing for closing arguments is held. If the defendant proves that the claimant’s request or its servicing is void and that the defendant was not aware of the existence of the trial as a result (Article 294 of the ICCP), the court may restore all the defendant’s reliefs and deadlines that would otherwise have been forfeited. 2.7 Rules for Pleading Fraud As a general rule, in civil proceedings the claimant (as the party damaged by the fraud) must fulfil the bur - den of proof and provide the necessary evidence to convince the court to uphold their pleadings against the defendant. In the event that the relevant claim, for which an order was executed, turns out to be manifestly ungrounded, or a party acted or resisted in court with bad faith or gross negligence, the same
party may be sentenced to pay damages in addition to court and legal fees (Article 96, paragraphs 1–2 of the ICCP). Following Decree 149/2022, in some cases, the court may now also impose monetary fines on the party bringing a manifestly ungrounded claim (Article 96, paragraph 4 of the ICCP). In the case of criminal proceedings related to fraud, the damaged party must make a complaint provid - ing the public prosecutor and pertinent authorities with any relevant detail, evidence and information in their possession, so that the public prosecutor and pertinent authorities can promptly run investigations and support the indictment. Anyone who makes a claim intentionally accusing someone they know to be innocent, or who fabricates evidence against them, may be prosecuted for slander (Article 368 of the Ital - ian Criminal Code). To a certain extent, false and/or ungrounded allegations may also trigger defamation and reputational damages claims. 2.8 Claims Against “Unknown” Fraudsters Under criminal law, it is possible to make a com - plaint against unknown suspects (ie, fraudsters who have not yet been identified), indicating to competent authorities any useful circumstances that may help their identification. Following the report, however, the public prosecutor may ask the court to dismiss the case or authorise the investigations to continue if investigations have not led to a solution within six months. Where the fraudsters are still not identified, the charges cannot be pushed forward and, conse - quently, no claim can be initiated. 2.9 Compelling Witnesses to Give Evidence Under both civil and criminal procedural laws, being a witness is a statutory duty. Once properly summoned in writing, witnesses are obliged to appear, to comply with the instructions given by the judge in relation to the trial, and to truthfully answer questions. If an inconvenience occurs impeding a witness’s abil - ity to appear, they must promptly inform the judicial authority or the party who called them, stating the justified reasons for their inability to attend. Where witnesses fail to appear at the hearing without any jus - tified reason, the court may order their forced appear -
219 CHAMBERS.COM
Powered by FlippingBook