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Taking of Evidence abroad in civil or commercial matters

The Hague Convention of 18 March 1970 and its application in Italy.

Taking of Evidence abroad in civil or commercial matters

 

 

 

 

 

 

 

 

In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of that State, request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act.

A Contracting State shall designate a Central Authority which will undertake to receive Letters of Request coming from a judicial authority of another Contracting State and to transmit them to the authority competent to execute them. Letters shall be sent to the Central Authority of the State of execution without being transmitted through any other authority of that State.

A Letter of Request shall specify: the authority requesting its execution and the authority requested to execute it, if known to the requesting authority; the names and addresses of the parties to the proceedings and their representatives, if any; the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto; the evidence to be obtained or other judicial act to be performed.
Where appropriate, the Letter shall specify: the names and addresses of the persons to be examined; the questions to be put to the persons to be examined or a statement of the subject-matter about which they are to be examined; the documents or other property, real or personal, to be inspected; any requirement that the evidence is to be given on oath or affirmation, and any special form to be used.

A Letter of Request shall be in the language of the authority requested to execute it or be accompanied by a translation into that language.

The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed. However, it will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties.

In the execution of a Letter of Request the person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence: under the law of the State of execution; or under the law of the State of origin, and the privilege or duty has been specified in the Letter, or, at the instance of the requested authority, has been otherwise confirmed to that authority by the requesting authority.

The execution of a Letter of Request may be refused only to the extent that: in the State of execution the execution of the Letter does not fall within the functions of the judiciary or the State addressed considers that its sovereignty or security would be prejudiced thereby.

A diplomatic officer or consular agent of a Contracting State may, in the territory of another Contracting State and within the area where he exercises his functions, take the evidence without compulsion of nationals of a State which he represents in aid of proceedings commenced in the courts of a State which he represents.

A diplomatic officer or consular agent of a Contracting State may, in the territory of another Contracting State and within the area where he exercises his functions, also take the evidence, without compulsion, of nationals of the State in which he exercises his functions or of a third State, in aid of proceedings commenced in the courts of a State which he represents, if a competent authority designated by the State in which he exercises his functions has given its permission either generally or in the particular case, and if he complies with the conditions which the competent authority has specified in the permission.

In Italy, the Hague Convention of 1970 on the taking of evidence abroad in civil or commercial matters, entered into force August 21, 1982. The designated central authority is the Ministry of Foreign Affairs, while the Court of Appeal are competent to authorize foreign judicial personnel to be present at the execution of a Letter of Request, authorize foreign diplomatic officers, consular agents or commissioners to take evidence; to grant the judicial assistance provided for the Convention.

By Mr. Luca Santaniello
Lawyer at Santaniello & Partners

Please see also:

European Enforcement Order

Debt Recovery in EU countries

English Speaking Lawyers in Italy

Italian Lawyers for U.S. citizens in Italy

Published on 08 December 2012

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