ITALY Law and Practice Contributed by: Renato Fiumalbi, Simone Barnaba, Alessandra Lucchini and Valeria Daloiso, Eversheds Sutherland
This principle, known as the “burden of proof”, is codified in Article 2697 of the Civil Code. It applies only to disputed facts; uncontested or widely recognised facts do not require evidence. Types of Evidence Evidence in Italian civil litigation can be classified based on various criteria: • By mode of development and submission in court: (a) pre-trial evidence, such as documents; and (b) evidence to be taken by the judge at trial, such as inspection, oath, confession, testimony and free questioning. • By effectiveness: (a) statutory evidence, such as notarised deed, legal presumptions, judicial confes- sion and oath; (b) freely assessable evidence, such as testi- mony and simple presumptions; and (c) arguments of proof, such as conduct in court, which are not strictly evidence but serve to assess or reinforce existing evidence. • By subject: (a) direct evidence, such as testimony; and (b) indirect evidence, such as simple pre- sumptions. Court’s Powers Over the Evidence As to the court’s powers over the evidence, the court should ground the final decision on what the parties first claim and then prove, accord- ing to the principle of “parties’ disposal of evi- dence”. In this regard the court has the authority to: • assess the suitability and admissibility of the single evidence in the trial; and
• evaluate the evidence according to its pru- dent assessment and free belief (except for statutory evidence). The court is not prevented from taking evidence on its own initiative, if needed. For example: • The judge may order the parties to appear for interrogation or conduct inspections of people or objects. • Witnesses may be called to provide informa- tion. • The court can request written information concerning administrative acts or documents from the public administration. 5.5 Legal Privilege Our legal system recognises the concept of legal privilege (attorney-client or work product protec- tion) but only in very limited cases: • The legal privilege only applies in Italy to communications between an external lawyer and a client relating to the client’s right of defence in a specific court case. • Italian courts have always applied the provi- sions on legal privilege restrictively. According to certain decisions of Italian courts (rendered in respect of the wiretapping of conversations between lawyers and clients, but which could also apply to other cases), the provisions on legal privilege do not prevent the authorities from collecting information, but rather from using it as evidence in case it is eventually established that it was protected by legal privilege. The key Italian law provisions on legal privilege are contained in the Code of Criminal Procedure (Article 103), laying down the rules applicable – and the extent, if any, to which the legal privilege applies – to searches, inspections and seizures
663 CHAMBERS.COM
Powered by FlippingBook