Italy 1. Is it possible for evidence to be taken by videoconference either with the participation of a court in the requesting Member State or directly by a court of that Member State? If yes, what are the relevant national procedures or laws that apply? In Italian law, and in particular in the Code of Civil Procedure, there is no specific legal provision for the taking of evidence by videoconference. However, Italian law does contain references to videoconferencing. Article 202 of the Code of Civil Procedure provides that when the investigating judge orders evidence to be taken, "he shall stipulate the time, place and means of taking" that evidence. In compliance with the Regulation, the judge could also order the evidence to be taken by videoconference. It should also be recalled that Article 261 of the Code of Civil Procedure provides that the judge may call for filmed evidence, which entails the use of mechanical means, instruments or procedures. Videoconferencing is provided for explicitly in the Code of Criminal Procedure (e.g. in Article 205 ter). Therefore, as regards the procedure governed by Article 10 et seq. of the Regulation, the "incompatibility" with national law referred to in Article 10(4) does not apply in Italy's case and does not constitute an obstacle. The only obstacle which might arise with respect to a request for videoconferencing would be major practical difficulties. As regards the procedures for taking the various types of evidence, the Community Regulation, the Italian Code of Civil Procedure and the relevant implementing provisions apply. In the case of the procedure governed by Article 17, the requested State, once it has checked that the conditions set out in Article 17(5) are met, and has then authorised the direct taking of evidence, should "encourage" the use of videoconferencing, which, as it is merely a method of taking evidence, should be verified case-by-case at the court. Therefore, unless there are major practical difficulties, such as the requested court not having access to this means of communication, all the evidence taken in response to a legitimate request under Article 10 et seq. or authorised under Article 17 can be taken by videoconference. At present there is no case-law guidance concerning the taking of evidence by videoconference. 1
2. Are there any restrictions on the type of person who can be examined by videoconference - for example, is it only witnesses or can others such as experts or parties also be examined in this way? Videoconferencing is a useful instrument for hearing both witnesses and parties to the proceedings. In this respect there are no problems of compatibility with Italian law, which, on the contrary, provides for the taking of witness evidence, informal questioning of the parties and questioning of the parties under oath. For the hearing of experts, the issue of the admissibility of expert evidence would have to be addressed in advance, particularly for the taking of evidence (Article 17). In Italian law, expert evidence is governed by Articles 61 and 191-201 of the Code of Civil Procedure. Experts normally provide written reports (Article 195(2) of the Code of Civil Procedure), but the judge may also request clarifications. Therefore, once expert opinion has been declared admissible, there should be no obstacle to hearing experts by videoconference. The Italian Code of Civil Procedure provides that the presiding judge may, if he considers it appropriate, invite the expert to attend the discussion before the bench and express his opinion in chambers in the presence of the parties, who may clarify and develop their positions through their legal representatives. 3. What restrictions, if any, are there on the type of evidence that can be obtained by videoconference? In practical terms, videoconferencing seems to be an effective instrument for, above all, taking witness evidence, concurrent examination of witnesses and statements by the parties to the case. However, the Regulation does not directly address the subject different types of evidence and their weight, and in practice problems may arise in respect of expert evidence, for instance the opinions of handwriting experts, genetic data searches and telephone evidence. 4. Are there any restrictions on where the person should be examined by videoconference i.e. does it have to be in a court? We can assume that the evidence would have to be taken within a judicial structure of the requested State that has territorial jurisdiction, the necessary equipment and available technical support staff. At present, however, there have been no practical examples in civil law cases. For criminal cases, one of the appropriately equipped sites within the jurisdiction of the Court of Appeal of the requested court (an ordinary courtroom, a high security courtroom or a room in a prison) is generally used for videoconference purposes. 2
5. Is it permitted to record videoconference hearings and, if so, is the facility available? We do not envisage any legislative obstacles to recording hearings. However, taking evidence under Article 4 et seq. is subject to the provisions of Article 126 of the Code of Civil Procedure and Article 46 of its implementing provisions, concerning the drafting of reports of proceedings. In criminal proceedings, the only context in which videoconferencing is currently used for taking evidence, the system allows the videoconference to be recorded (audio and video recording) at the request of the parties, using the facilities available in equipped locations. 6. In what language should the hearing be conducted: (a) where requests are made under Articles 10 to 12; and (b) where there is direct taking of evidence under Article 17? This aspect is not directly governed by the rules. Article 5 of the Regulation, which provides that the request and communications must be drawn up in the official language of the requested Member State, could indicate the language in which the hearings should be held. In the case of requests made under Article 10 et seq., to which national law applies, the hearing must be in Italian. Article 122 of the Italian Code of Civil Procedure provides that "The Italian language shall be used throughout the hearing. When a person who does not speak Italian must be heard, the court may appoint an interpreter." By contrast, in the procedure referred to in Article 17 the law of the requesting State applies. This might have implications for the language in which evidence is taken. The language would then have to be also that of the requesting State. In that case, interpreters might be needed. The authority competent to authorise the direct taking of evidence could, however, specify the conditions under which it must be taken, including, perhaps, the language to be used. 3
7. If interpreters are required, who is responsible for providing them under both types of hearing and where should they be located? The rules do not include any particular provisions on this aspect. In the procedure referred to in Article 10 et seq., in which the law of the requested State applies, the interpreter should be appointed by the requested court. In that case, Article 122(2) of the Italian Code of Civil Procedure applies. This provides for the appointment of an interpreter when a person who does not know Italian must be heard. The assumption is therefore that the language of the proceeding (and of the presiding judge) is Italian. However, the costs of paying the interpreters are refundable and are charged to the requesting court. ( see Article 18). For proceedings under Article 17, see point 6. The language would then have to be also that of the requesting State. Hence, the law of the requesting State must be consulted to establish who is responsible for appointing the interpreter. In that case the authority competent for authorising the direct taking of evidence could request information about the appointment of the interpreter. 8. What procedure applies to the arrangements for the hearing and to notify the person to be examined about the time and place? How much time should be allowed when arranging the date of the hearing to enable the person to receive sufficient notification? Article 250 of the Code of Civil Procedure provides that the bailiff, at the request of the interested party, summons the witnesses to appear in the place, on the day and at the time set, specifying the court which will take the evidence and the case in which they must be heard. Article 103 of the implementing provisions of the Code of Civil Procedure provides that the summons must be issued to the witnesses at least seven days before the hearing at which they are asked to appear. The rules on witness evidence are set out in Articles 244 to 257 bis of the Code of Civil Procedure and Articles 102 to 108 of the implementing provisions of the Code. 9. What costs apply to the use of videoconferencing and how should they be paid? The costs of the videoconferencing provided for in Article 10(4) are reimbursed at the request of the requested authority, as provided in Article 18(2) of the Regulation. There is no provision for the compulsory reimbursement of the direct taking of evidence by videoconference for the purposes of Article 17. The absence of such provision suggests that the costs of the proceeding are to be borne directly by the requesting authority, which takes the evidence directly. 4
10. What requirements, if any, are there for ensuring that the person examined directly by the requesting court has been informed that the performance shall take place on a voluntary basis? The requesting authority is responsible for informing the person to be heard that the evidence is to be taken on a voluntary basis and this is one of the conditions for authorising the direct taking of evidence under Article 17. The Regulation does not impose any analogous obligation on the requested authority. 11. What procedure exists for verifying the identity of the person to be examined? The provisions on identifying the witness are set out in Article 252 of the Code of Civil Procedure, which stipulates that: "the investigating judge shall ask the witness for his name, surname, father's name, age and profession and shall ask him to state whether he has any family relationship... with the parties, or an interest in the case." The witness is identified after he has taken the oath under Article 251 of the Code of Civil Procedure. In practice the investigating judge also asks for an identity document and records the details. As regards the parties to be heard, if one of them is to be heard by proxy, a special power of attorney must also be provided. 12. What requirements for taking oaths apply and what information is needed from the requesting court when an oath is required during direct taking of evidence under Article 17? Article 251 of the Code of Civil Procedure applies. There are no specific provisions regarding the procedure under Article 17. It could be useful to receive information on the how giving false evidence or withholding evidence is treated under the criminal law of the requesting Member State. 13. What arrangements are there for ensuring that there is a contact person at the place of the videoconference with whom the requesting court can liaise and a person who is available on the day of the hearing to operate the videoconferencing facilities and deal with any technical problems? There are no specific provisions on this subject, among other things because there are no specific videoconference provisions in civil law. In the case of criminal proceedings, the competent department of the Ministry of Justice (the Department of Prison Administration) ensures that technical staff are always present in the places where the video link is set up and arranges all the preparatory activities (contacts, tests, etc.) and that the links are established on the day of the hearing. 5
14. What, if any, additional information is required from the requesting court? Together with its request for international judicial assistance, the requesting court should provide, if available, any technical data available on the videoconference system used in its country and in any case the name and telephone number of a contact, who should preferably be a specialist technician, and the language to be used during these activities. 6