(Which party bears the burden of proof for which facts? What are the implications if doubts about a specific fact cannot be solved?)
The rules governing the burden of proof apply 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 and “the party challenging the validity of those facts or claiming that the enforced 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 underlying his or her claim or having the cited legal effects. The defendant, on the other hand, must provide evidence to support facts precluding liability or showing that rights have been exhausted or changed that may result in the dismissal of the applicant’s claim and render it invalid.
Where the applicant cannot provide evidence of facts relating to the exercising of his rights, the application is dismissed, irrespective of whether the defendant offers a defence and evidence in support thereof.
Section 2698 of the Civil Code renders null and void any agreement intended to transfer or alter the burden of proof relating to non-negotiable rights or having the effect of making it overly difficult for one of the parties to exercise their rights.Flawed evidence harms the case of the party - applicant or defendant - required to prove or disprove the facts, as the flaws are considered to amount to a lack of evidence.
The burden of proof is not necessary in the following cases:
(Must the court be entirely convinced of the fact, or is it sufficient if the fact is highly probable, but certain doubts remain?)
The court’s judgment in favour of an application or of a line of defence must be based purely on facts clearly proven directly or by way of presumption.
The court’s judgment may not be based on unproven facts, even if they are possible or even highly probable.
Under the Italian legal system the taking of evidence is governed by the principle of party prosecution set out in the first subsection of section 115 of the Code of Civil Procedure, whereby “apart from in those cases specified in law” the court must base its judgment on the evidence submitted by the parties. To be examined the facts submitted must be relevant, i.e. the demonstration of their existence or otherwise must appear to have some bearing on the judgment of the case.
Therefore, as a rule, the court may not take evidence of its own motion that could help to establish the facts.
However, there are certain exceptions to this rule set out in the following sections of the Code of Civil Procedure:
An application by one party for the taking of evidence allows the opposing party to apply to prove the contrary. In this case the court grants both applications, as long as it believes that the facts submitted will be relevant for the purposes of reaching a judgment.
If the court admits the evidence, it then proceeds to hear it.
After the evidence has been taken and all the steps prescribed by the law have been taken, the case is deliberated.
(such as in cases where the proof is not suitable or achievable or admissible)
The court rejects applications for the obtaining of evidence where the evidence is inadmissible under the law (for example, an attempt to prove that real estate was sold on the basis of witness statements) or where the facts to which the application refers are irrelevant for the purposes of the judgment (for example, testimony concerning a fact unrelated to the subject of the dispute)
Italian law distinguishes between documentary and non‑documentary evidence.
Documentary evidence covers both public and private documents. Typical forms of private documentary evidence are telegrams, domestic files and records, the accounts of registered companies, mechanically or electronically produced copies, copies of official documents and documents of acknowledgement or renewal.
Non-documentary evidence consists of confessions, sworn statements, witness evidence, inspections and technical advice.
Witness evidence is admitted by the examining court, which orders the witness to appear to give evidence on pain of coercive measures and a fine if he or she fails to appear.
This obligation also applies to technical experts summoned by the court.
Technical experts draw up written reports if asked to do so by the court, which may also confine itself to asking the experts to give oral evidence at a hearing.
(for example written evidence instead of testimony, certified document instead of private document)
The Italian legal system attaches most weight to public documents, which may be challenged only on the grounds that they are forgeries, and to irrebuttable presumptions juris et de jure.
(for example, is written evidence necessary for debts above a certain threshold?)
The law requires that certain facts be proven only by means of specific forms of evidence, in some cases public documents and in other written documents (public or private).
Witnesses are required to testify, unless the law provides otherwise. There is provision for incapacity to testify, a ban on giving testimony and the option to refrain from giving evidence.
(such as when the witness is a relative of a party (which?), or if giving evidence would cause damage to the witness)
In the cases covered by sections 199 and 200 of the Code of Criminal Procedure, which are referred to by the Code of Civil Procedure.
Yes, as indicated above.
(adults without legal capacity, minors, persons with common interests with a party, persons who have been sentenced for certain criminal offences …)
(Who conducts the hearing of a witness? Can the judge put questions to the witness? Is the other party allowed to cross-examine the witness?)
The court examines the witness, asking direct questions concerning the facts admitted and any questions requested by defence counsel during the examination.
At present, the law does not allow witness evidence to be taken using technologies such as television or videoconferencing.
(such as illegal tape recordings, etc.)
The court takes no account of evidence that has not been formally submitted and admitted.
It does not count as evidence in my favour. However, it may count as evidence against me if my statement is a confession made during a formal interview.Top
Last update: 19-04-2007