The rules of evidence in Italy: an overview on the role of expert witnesses under Italian Law

Under Italian law, where the claimant/plaintiff 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.

The rules governing the burden of proof in Italy 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 claimant/plaintiff to prove the facts underlying his or her claim and 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.

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 by way of witness evidence

The taking of evidence

Under the Italian legal system, the court may not take evidence of its own motion that could help to establish the facts and 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.

The facts submitted by each party must be relevant, i.e. the demonstration of their existence or otherwise must appear to have some bearing on the judgment of the case.

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.
• 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 by way of expert evidence.

The role of expert evidence

In the Italian legal system technical expert advice is given by an expert during the part of the proceedings that deal with evidence. Its purpose is to provide technical support to the judge or to the parties.

Unlike in the UK, where the Supreme Court recently abolished the immunity from suit for breach of duty enjoyed by expert witnesses in legal proceedings, according to the Italian legal system, an expert witness appointed by the Court both in criminal and civil proceedings may incur in civil, criminal, and disciplinary liabilities.

The Italian criminal system is based on the inquisitory criminal procedure as opposed with the contentious or accusatory Anglo-American procedure and the expert witness appears fundamentally as an auxiliary to the investigating magistrate or to the trial judge in getting at the truth.

In Italian civil proceedings, there are two different kinds of expert: the court technical expert appointed by the judge ( “Consulente Tecnico d’Ufficio” or “CTU”) and the expert appointed by the parties (“CTP”).

The CTU is an assistant of the judge, who performs his or her activity at the judge’s request, when the lawsuit requires specific technical skills.

As a general rule, the expert’s report is not considered to be proper evidence as it is required to supplement the activity of the judge and provide him with technical information through a non-binding report. Before giving evidence, the CTU takes an oath. The judge then outlines the questions which the CTU must, in strict terms, answer through his or her expert report.

The expert then holds inquiries, which the judge has commissioned. He provides the judge with any clarifications that he may need. When a court expert is appointed, the parties may require the assistance of CTPs. The CTPs can comment on the CTU’s work and file a report, which supports or criticises the court expert’s report.

Therefore, if the judge deems it necessary to have technical assistance on specific issues or for the entire proceedings, he must issue an order to appoint an expert and also fix the hearing for his appearance. In this order the judge also gives leave for the parties to appoint a CTP. According to article 61 of the Italian Code of Civil Procedure, the CTU must be chosen from the “Albo dei Periti”. This is a register which is divided into categories each of which includes people with specific professional and technical skills. Each court has such a register and it is managed by the President of the court. The CTU must be neutral and impartial and cannot be connected to one of the parties (e.g. husband, wife or parent etc.). This also means that the CTU must not have any interest relating to the proceedings or in another proceeding, which is pending on the same issue.

When appointed, the expert is obliged to accept his own appointment and may only reject it for well-grounded reasons which the judge shall evaluate.

Therefore, although the expert has the right to abstain from giving advice to the court, he must also comply with the second paragraph of art. 61. The parties may also object to an expert’s appointment if there is a conflict of interest or he is not impartial.