ITALY Law and Practice Contributed by: Giorgio Vagnoni, Alessio Di Pietro, Alessandra Mosca and Cesare Placanica, LAWP Studio legale e tributario
6. Privileges 6.1 Invoking the Privilege Against Self- Incrimination In criminal proceedings, the defendant may invoke a “right to silence”, by means of which they can refuse to provide information to investigators, to public pros - ecutors and to the courts. The defendant is also not obliged to tell the truth. Opting for silence may often prove inconvenient, as it can be interpreted and evalu - ated as evidence of guilt. In pre-trial examinations, the suspect only has the obligation to identify themselves, whereas in the event of a trial the defendant is exam - ined and cross-examined only if they so request or express consent. Unlike criminal proceedings, in civil proceedings, par - ties cannot take advantage of the right to silence or take the role of witness, as they are directly involved in the proceeding. However, parties may be subject to formal interrogation based on specific and sepa - rate questions predetermined by the counterparty in the relevant requests for evidence. Questions are addressed directly by the judge, either freely or based on those requests formulated by the parties in a detailed manner – and admitted by the judge beforehand. This interrogation can also be aimed at obtaining the judicial confession of facts unfavourable to the party to whom the judge refers. If a party does not appear or refuses to answer questions without any justified reason, the court may deem the allegations confirmed. 6.2 Undermining the Privilege Over Communications Exempt From Discovery Lawyers must maintain the utmost confidentiality when it comes to professional activity carried out in favour of their client, as well as concerning information they become aware of in connection with their office. Only limited exemptions are provided to this principle – for example, in those circumstances where it is nec - essary to prevent the commission of particularly seri - ous offences. Nevertheless, any authorised disclosure needs to be proportionate to the envisaged purpose. In criminal proceedings, wire-tapping of attorney–cli - ent conversations is prohibited. The seizure of any correspondence between the client and the attorney
is also forbidden, unless the court has a well-founded reason to believe that it constitutes the product or the result of the crime (Article 103 of the Italian Code of Criminal Procedure). 7. Special Rules and Laws 7.1 Rules for Claiming Punitive or Exemplary Damages Punitive damages are not expressly regulated in the Italian legal system. Nevertheless, in recent years, the Italian Supreme Court has finally acknowledged the applicability of punitive damages in some cases, as they are deemed “not incompatible with Italian public policy” (Supreme Court, Plenary Session, No 16601/2017). As a result, foreign judgments ordering punitive dam - ages may be acknowledged and enforced in Italy. However, there are certain conditions to be met – namely, the punitive damages imposed by the foreign judgment must be explicitly foreseen by the law of the “country of origin” and must also be foreseeable in their amount. A prelude to this conclusion can be seen in other specific matters not strictly related to fraud matters, where Italian laws provide monetary fines in a measure not corresponding to the harm suffered by the dam - aged party – for example, infringement of patents and trade marks, environmental damage, or compensation for damages – even ex officio, for procedural liability where it appears that a party has acted or resisted recklessly in court with bad faith or gross negligence (Article 96, paragraph 3 of the ICCP). 7.2 Laws to Protect “Banking Secrecy” The Italian legal system lacks an explicit legislative provision on banking secrecy. However, there are rules that – although not directly aimed at guaranteeing this secrecy – expand the protection of customers against financial operators by imposing a general obligation of correctness in the performance of legal relationships and an obligation of guaranteeing the confidentiality of data known by banks in relation to actual or potential customers.
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