Taking of evidence and mode of proof - Italy

TABLE OF CONTENTS I. The burden of proof  1. a) What are the rules concerning the burden of proof?  b) Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to rebut these presumptions by producing evidence?  2. To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?  II. The taking of evidence  3. Does the taking of evidence always require the application of a party, or can the judge in certain cases also take evidence on his own motion?  4. a) If the application of a party concerning the taking of evidence is approved, what steps follow?  b) In which cases can the court reject an application of a party to obtain evidence?  5. a) What different means of proof are there?  b) 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?  c) Are certain methods of proof stronger than others?  d) In order to prove certain facts, are certain methods of proof obligatory?  6. a) Are witnesses obliged by law to testify?  b) In which cases can they refuse to give evidence?  c) Can a person who refuses to testify be sanctioned or forced to give evidence?  d) Are there persons from whom evidence cannot be obtained?  7. 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 new technology such as television or videoconferencing?  III. The evaluation of the evidence  8. Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?  9. As a party to the case, will my own statement count as evidence?

 

I. The burden of proof

1.

a) What are the rules concerning the burden of proof?

(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. 

b) Are there rules which exempt certain facts from the burden of proof? In which cases? Is it possible to rebut these presumptions by producing evidence?

The burden of proof is not necessary in the following cases:

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1. Where the law determines the legal effects of certain facts when evidence is taken, or allows the court to move from a known to an unknown fact. In the former case we talk about presumptions of law, which can take two forms: rebuttable presumptions which may be disproved by evidence to the contrary (juris tantum) and irrepubttable presumptions (juris et de jure, where no evidence to the contrary may be produced in court. The latter case involves what are known as simple presumptions that are left to the court to evaluate. The court may admit them only if they are based on serious, specific and concordant facts. Moreover, simple presumptions are not admitted in relation to facts where the law does not allow witness evidence;
2. In the case of notorious facts, which are known to most people at the time and place of the ruling, and therefore there can be no doubt as to their nature;
3. In the case of rules of experience, i.e. the logical principles and notions of shared experience from which general criteria for evaluating and judging facts can be drawn;
4. In the case of uncontested or admitted facts, i.e. facts cited by the parties in agreement or admitted - possibly tacitly - by the party that could have an interest in challenging them.

2. To what extent must the court be convinced of a fact in order to base its judgment on the existence of that fact?

(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.

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The court’s judgment may not be based on unproven facts, even if they are possible or even highly probable.

II. The taking of evidence

3. Does the taking of evidence always require the application of a party, or can the judge in certain cases also take evidence on his own motion?

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:

• Section 257 allows witnesses to be called who have been named by another witness.
• Section 317 allows a magistrate's court to order the taking of witness evidence of its own motion if the parties have named persons who may be aware of the facts. (This therefore does not apply to cases before district courts or appeal courts)
• Section 118 allows inspections of persons and objects to be ordered.
• Section 117 allows for the informal questioning of the parties.
• Sections 61 and 191 allow the court to take technical advice.

4.

a) If the application of a party concerning the taking of evidence is approved, what steps follow?

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.

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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.

b) In which cases can the court reject an application of a party to obtain evidence?

(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)

5.

a) What different means of proof are there?

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.

b) 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 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.

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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.

c) Are certain methods of proof stronger than others?

(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.

d) In order to prove certain facts, are certain methods of proof obligatory?

(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).

6.

a) Are witnesses obliged by law to testify?

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.

b) In which cases can they refuse to give 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.

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c) Can a person who refuses to testify be sanctioned or forced to give evidence?

Yes, as indicated above.

d) Are there persons from whom evidence cannot be obtained?

(adults without legal capacity, minors, persons with common interests with a party, persons who have been sentenced for certain criminal offences …)

See above.

7. 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 new technology such as television or videoconferencing?

(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.

III. The evaluation of the evidence

8. Where evidence has not been obtained legally by a party, are there restrictions placed on the court in reaching its judgment?

(such as illegal tape recordings, etc.)

The court takes no account of evidence that has not been formally submitted and admitted.

9. As a party to the case, will my own statement count as evidence?

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.

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Last update: 19-04-2007