Taking of evidence - Italy
TABLE OF CONTENTS
- 1 The burden of proof
- 1.1 What are the rules concerning the burden of proof?
- 1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?
- 1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?
- 2 The taking of evidence
- 2.1 Does the taking of evidence always require the application of a party, or can the judge in certain cases also take evidence on his/her own initiative?
- 2.2 If the application of a party concerning the taking of evidence is approved, what steps follow?
- 2.3 In which cases can the court reject an application by a party to obtain evidence?
- 2.4 What different means of proof are there?
- 2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?
- 2.6 Are certain methods of proof stronger than others?
- 2.7 In order to prove certain facts, are certain methods of proof obligatory?
- 2.8 Are witnesses obliged by law to testify?
- 2.9 In which cases can they refuse to give evidence?
- 2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?
- 2.11 Are there persons from whom evidence cannot be obtained?
- 2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?
- 3 The evaluation of the evidence
1 The burden of proof
1.1 What are the rules concerning the burden of proof?
The burden of proof is governed by the principles set out in Section 2697 of the Civil Code, which states that: ‘Those intending to enforce a right before a court shall provide evidence of the facts supporting the claim. A party challenging the validity of those facts, or claiming that the right has changed or is exhausted, shall provide evidence of the facts supporting such objection.’
These principles therefore require the applicant to prove the facts on which his or her claim is based, i.e. the facts that have the legal effects claimed. The defendant, on the other hand, must provide evidence of facts precluding liability, or showing that a right has been exhausted or changed in such a way that the applicant’s claim should be dismissed.
If the applicant is unable to substantiate his or her claim, the application is dismissed, irrespective of whether the defendant submits argument and supporting evidence in defence.
Section 2698 of the Civil Code renders null and void any agreement intended to transfer or alter the burden of proof in respect of an inalienable right or which makes it overly difficult for either of the parties to exercise their rights.
Insufficient evidence harms the case of the party – be it the applicant or the defendant – who has to prove or disprove the facts, as insufficient evidence is considered to be equivalent to no evidence.
1.2 Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to produce evidence in order to prove that a specific legal presumption is not valid?
The burden of proof does not apply in the following cases:
- In the case of presumptions, i.e., where the law itself determines the evidential value of certain facts, or allows the court to draw conclusions about an unknown fact from a known fact (Section 2727 of the Civil Code).
Presumptions are divided into:
- legal presumptions, those established by law, which may be rebuttable (iuris tantum), meaning that they may be overthrown if evidence is produced to the contrary, or irrebuttable (iuris et de iure), meaning that they cannot be overthrown by seeking to produce contrary evidence in court;
- simple presumptions, which the court must assess in its discretion, accepting only serious, precise and consistent presumptions; simple presumptions are not admitted in relation to facts in respect of which the law does not allow witness evidence (Section 2729 of the Civil Code);
- well‑known facts (fatti notori), i.e. facts which are generally known at the time and place of the ruling, so that they are not open to doubt (Section 115 of the Code of Civil Procedure);
- uncontested or admitted facts, i.e. facts put forward by both parties or admitted – even tacitly – by the party that might have an interest in challenging them (Section 115(1) of the Code of Civil Procedure).
1.3 To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?
The court’s decision to uphold a claim or any objections against it must be based purely on facts that are fully proven, either directly or by way of presumption.
The court’s judgment may not be based on unproven facts, even where they are possible or highly likely (Section 115(I) of the Code of Civil Procedure).
2 The taking of evidence
2.1 Does the taking of evidence always require the application of a party, or can the judge in certain cases also take evidence on his/her own initiative?
Under the Italian legal system the taking of evidence is governed by the principle that the scope of the proceedings is determined by the parties (principio dispositivo), laid down in Section 115(1) of the Code of Civil Procedure: the court must base its judgment on the evidence submitted by the parties, ‘apart from those cases specified by law’.
However, certain exceptions to this rule are set out in the following sections of the Code of Civil Procedure:
- Section 117: allows the informal questioning of the parties;
- Section 118: allows inspections of persons and objects to be ordered;
- Sections 61 and 191: allow the court to request expert opinions;
- Section 257: allows the court to summon a witness who has been mentioned by another witness;
- Section 281 ter: allows a general court (tribunale) sitting with a single judge to order the taking of witness evidence if the parties’ account of the facts mentions individuals who would appear to be acquainted with the facts.
In labour disputes, the principle that the scope of the proceedings is determined by the parties is replaced by a system marked by inquisitorial elements, specifically under the following provisions:
- Section 420: provides for the free questioning of the parties during the hearing on the case;
- Section 421: provides that the court may at any time on its own initiative order the admission of any type of evidence, even beyond the limits set by the Civil Code.
In divorce proceedings, the court may order the taking of evidence on its own initiative, but only as concerns investigation into income and living standards.
2.2 If the application of a party concerning the taking of evidence is approved, what steps follow?
If one party applies for the taking of evidence, the opposing party can apply for the taking of contrary evidence. The court will grant both applications if it has reason to believe that the facts submitted will be relevant for the purposes of arriving at its judgment.
If the court admits the evidence, it will then proceed to hear it.
After the evidence has been taken, the case will be adjudicated.
2.3 In which cases can the court reject an application by a party to obtain evidence?
The court will reject an application for the taking of evidence where the evidence would be valueless or inadmissible under the law (for example, if a claim that a piece of real estate was sold is based only on witness statements), or where the facts to which the application refers would be irrelevant for the purposes of the judgment (for example, testimony concerning a fact unrelated to the subject‑matter of the dispute).
2.4 What different means of proof are there?
Italian law distinguishes between documentary and non‑documentary evidence.
Documentary evidence includes:
- public documents (Sections 2699 et seq. of the Code of Civil Procedure);
- private documents (Sections 2702 et seq.);
- telegrams (Sections 2705 et seq.);
- domestic files and records (Section 2707);
- accounting records of businesses (Section 2709);
- mechanically produced copies (Section 2712);
- copies of documents and contracts (Sections 2714 et seq.).
Non-documentary evidence includes:
- witness evidence (Sections 2721 et seq. of the Code of Civil Procedure);
- confessions (Sections 2730 et seq.);
- sworn statements (Sections 2736 et seq.);
- inspections (Sections 258 et seq.).
There are also expert reports, which provide the court with the technical knowledge it lacks.
2.5 What are the methods of obtaining evidence from witnesses and do these differ from the means employed to obtain evidence from expert witnesses? What are the rules in relation to the submission of written evidence and expert reports/opinions?
Witness evidence is admitted by the court (Section 245 of the Code of Civil Procedure); the court’s order requires the witness to appear to give evidence on pain of coercive measures and a fine if he or she fails to appear.
The court establishes the place, time and manner of the taking of evidence. On the request of the concerned party, the court bailiff serves the summons on the witness. The witness reads out a commitment to tell the truth, and is then questioned by the judge — the parties may not question witnesses directly.
A recently introduced provision allows the court, with the parties’ consent, to take evidence in writing (Section 257 bis of the Code of Civil Procedure).
Expert witnesses are appointed by the court, which gives them questions they are asked to answer; they will also appear at the hearing and swear to tell the truth. As a rule, expert witnesses prepare a written report, but the court may also order them to appear and be questioned orally at the hearing (Section 195 of the Code of Civil Procedure).
Written evidence forms part of the proceedings once it is placed on the party’s file, at the time of first appearance or later, subject to the time limits laid down in law.
2.6 Are certain methods of proof stronger than others?
The Italian legal system attaches the greatest weight to public documents and to irrebuttable presumptions.
Public documents (Sections 2699 et seq. of the Civil Code) are documents drafted, with the required formalities, by a notary (notaio) or other public official authorised to confirm their public status in the place where the document was prepared. Public documents have full value as evidence unless they are shown to be false. Barring this challenge, they constitute absolute and unconditional proof.
Irrebuttable presumptions (Section 2727 of the Civil Code) are even more effective, as they do not admit any proof to the contrary.
2.7 In order to prove certain facts, are certain methods of proof obligatory?
The law requires that certain facts be proven only by means of specific forms of evidence, in some cases requiring public documents, and in other cases requiring written documents that may be public or private.
2.8 Are witnesses obliged by law to testify?
Witnesses are required to testify, unless the law provides otherwise. There are provisions covering the following cases: incapacity to testify; bans on certain persons giving testimony; and the option to refrain from giving evidence. The witness’s obligation to give evidence stems indirectly from the power that Section 255 of the Code of Civil Procedure gives to the court, if the witness fails to appear, to order that the witness be brought to court and to impose a fine.
2.9 In which cases can they refuse to give evidence?
In the cases laid down in the Code of Criminal Procedure, to which the Code of Civil Procedure refers: these cover individuals who may refuse to give evidence because they are bound by professional secrecy, official secrecy or State secrecy.
2.10 Can a person who refuses to testify be sanctioned or forced to give evidence?
Under Section 256 of the Code of Civil Procedure, a witness who attends court but refuses to testify without proper justification, or who gives good reason to suspect that he or she is giving false testimony or withholding evidence, will be reported to the public prosecutor by the court by forwarding of a copy of the minutes of the hearing.
2.11 Are there persons from whom evidence cannot be obtained?
Individuals having a personal interest in the facts of the case cannot give evidence, because their interest means that they might be entitled to join the proceedings as a party (Section 246 of the Code of Civil Procedure).
Children younger than 14 may be heard only if their evidence is required by special circumstances (Section 248 of the Code of Civil Procedure).
2.12 What is the role of the judge and the parties in the hearing of a witness? Under what conditions can a witness be heard via videoconferencing or other technical means?
The judge examines the witness, asking direct questions concerning the facts allowed as relevant to the proceedings and any questions on the same facts requested by the parties’ lawyers during the examination.
Videoconferencing, while not expressly provided for by the Code of Civil Procedure, is not excluded. Section 202 of the Code of Civil Procedure provides that, when ordering the taking of evidence, the court shall ‘establish the time, place and manner of obtaining evidence’, and this allows a court to order the hearing of a witness via videoconferencing.
Section 261 of the Code of Civil Procedure also provides that the court may order video recording requiring the use of mechanical means, tools or procedures.
Videoconferencing is expressly provided for by the Code of Criminal Procedure (e.g. in Section 205 ter).
3 The evaluation of the evidence
3.1 Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?
The court takes no account of any evidence which was not formally submitted and admitted.
3.2 As a party to the case, will my own statement count as evidence?
Your own statement does not count as evidence in your favour. However, it may count as evidence against you if it is a confession made during formal questioning.
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Last update: 22/01/2018