Fichas Belgas
Measure Implementation
Measure possibility

Legal Framework
Applicable Framework

Competent authority
Request/decision
Execute/recognise measure

Accepted Languages
Languages

Execution Deadline
Deadlines

Legal info
Special requirements
Other information

Fiches Belges: Italia

Interceptación de correo (104)

1. MEASURE IMPLEMENTATION

Italia

Is this measure possible in your Member State under International Judicial Cooperation?

Yes, it is.

2. LEGAL FRAMEWORK

Italia

International legal framework applicable for this measure in your Member State

As the so-called MAP Convention has not yet been ratified, the main instruments that can be used at present for requests for co-operation are the following: A) European Convention on Mutual Assistance in Criminal Matters signed in Strasbourg on 20 April 1959, ratified by Law of 23 February 1961, no. 215 (hereinafter referred to as CoE). B) Convention Implementing the Schengen Agreement of 19 June 1990, ratified by Law 20 September 1993, no. 388 (hereinafter referred to as SIC). C) United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed in Vienna on 20.12.1988, ratified by Law of 5 November 1990, no. 328. D) United Nations Convention against Transnational Organised Crime, signed in Palermo on 13 - 15 December 2000, ratified by Law of 16 March 2006, no. 146. E) United Nations Convention against Corruption, signed in Merida on 9 - 11 December 2003, ratified by Law of 3 August 2009, no. 116. Italy has also signed other bilateral or multilateral conventions with respect to specific offences (including numerous conventions on terrorism), and they allow for the application of this measure.

3. COMPETENT AUTHORITY TO:

Italia

* receive the request/decision for judicial cooperation

In the cases, and under the conditions, laid down in Article 15 CoE or Article 53 SIC, requests for legal assistance may directly be addressed to the Court of Appeal of the place where they shall be executed or to the Court of Cassation when the requested activity is supposed to be executed in more than one Court of Appeal district; the Court of Cassation shall identify the competent Court of Appeal, and in doing this account will be taken of the number of measures to be adopted as well as their type and importance with reference to the location of the judicial offices concerned (Article 724 of the Code of Criminal Procedure). If a direct transmission is not allowed, letters of request shall always be addressed to the Ministry of Justice that gives effect to the proceedings and transmits them – together with the documents enclosed therewith, if any – to the Office of the Prosecutor General attached to the competent Court of Appeal (or to the Court of Cassation for a preliminary identification of the competent Court of Appeal), unless: 1) the requested measures are considered to jeopardise the sovereignty, security or other essential interests of the State; 2) it is evident that the requested measures are expressly prohibited by the law or are contrary to the fundamental principles of the Italian legal system; 3) there are reasons for believing that considerations on grounds of race, religion, sex, nationality, language, political opinions or personal or social conditions may have a negative impact on the course or outcome of the trial and apparently the defendant has not spontaneously given his or her consent to the letter of request; 4) the requesting State does not provide adequate assurances of reciprocity (Article 723 of the Code of Criminal Procedure).

* execute/recognise the measure (if other than the receiving authority)

The execution of letters of request shall be ordered by the Court of Appeal, and in doing so it shall delegate, for the execution, one of its members or the Pre-trial Investigation Judge of the place where the measures have to be enforced. The Public Prosecutor may not be delegated for the execution. The actual execution of the requested activity shall be referred to the Judicial Police.

4. ACCEPTED LANGUAGES

Italia

Accepted languages for the request/decision

Requests for cooperation submitted under the Strasbourg Convention or the Convention Implementing the Schengen Agreement may be drafted either in English or French. In the other cases the use of the Italian language is required.

5. EXECUTION DEADLINE

Italia

Deadlines for the execution of the request/decision (where applicable)

None.

6. CONCISE LEGAL PRACTICAL INFORMATION

Italia

a. Special requirements

In general The Code of Criminal Procedure stipulates that the Court of Appeal shall refuse to execute a letter of request: a) if the requested measures are prohibited by the law and are contrary to the legal principles of the State; b) there are reasons for believing that considerations on grounds of race, religion, sex, nationality, language, political opinions or personal or social conditions may have a negative impact on the course or outcome of the trial and apparently the defendant has not spontaneously given his or her consent to the letter of request; c) if the fact, in respect of which a foreign authority has instituted proceedings, does not constitute an offence in the Italian system and apparently the defendant has not spontaneously given his or her consent to the letter of request. However, the latter provision shall not be invoked where a convention applies that rules out the requirement of dual criminality. In general terms, the Code also prescribes that: - the execution of a letter of request be suspended if it may jeopardise investigations or criminal proceedings that are pending in the State; - the Italian procedural rules shall apply to execute the requested measures in compliance with the forms expressly requested by the foreign judicial authority provided that they are not contrary to the principles of the domestic legal system. Details on this specific measure As to the law provisions specifically applicable to the interception of remote communications, the rules laid down in the domestic legislation shall apply as there are no detailed convention provisions on this specific issue, and this is an instrument that has an impact on a right protected by the Constitution. The domestic system requires that: 1) there be serious elements of guilt for the offence in respect of which proceedings have been instituted; 2) this offence shall be punishable, in the Italian system, by life imprisonment or a maximum term of imprisonment of more than 5 years (many exceptions are provided to this rule, based on the kind of offence: crimes relating to narcotic and psychotropic substances, smuggling, crimes related to child pornography et alia); 3) interception needs to be absolutely indispensable to further conduct investigations. For the aforementioned reasons a letter of request needs to be accompanied by a detailed statement of facts. The measure may be authorised for 15 days and extended for additional 15-day periods upon a specific request.

b. Other useful information

When activities are requested that have to be conducted in more than one Court of Appeal district, it may be appropriate to draft distinct letters of request (each one addressed to the Office of the Prosecutor General that has jurisdiction in a single district), so as to avoid a preliminary intervention by the Court of Cassation as already mentioned above, and execute letters of request more expeditiously.

Last reviewed on 6 julio 2016 by Secretariado de la RJE

Guía para la primera visita
Si no sabe usar las fichas belgas para solicitar asistencia judicial mutua, visite esta página

  • ® 2021 EJN. Todos los derechos reservados