“Letters rogatory” (a legal request -which will be referred to here simply as a “rogatory”), provide judicial authorities in Italy with reciprocal assistance and co-operation in legal proceedings.
POST BY AVVOCATI JESSICA ZAMA AND AGNESE MICOZZI
A rogatory is a tool used to notify and serve documents which have legal value in a different jurisdiction, in particular a way to judicially enforce a foreign obligation, on an individual or a company, for example when they are called to be a witness or to provide documentation for use in foreign court proceedings.
A rogatory is internal, when the different judicial authorities are all within Italy, whilst it is an international one when one of the authorities is outside of Italy.
The rogatory can be used both in civil and criminal proceedings; in the latter case, the use of a rogatory is more complicated, as more laws apply to it, both national and international, as well as the need to refer to the relevant international treaties between the different countries.
An international civil rogatory is divided in two categories: one that requires the assistance of an Italian Judge by a foreign court (called an “active rogatory”) and one where an Italian court will need a foreign court’s help (called a “passive rogatory”), in order to enforce documents with a foreign legal value in Italy.
In a passive rogatory, the Italian Ministry of Justice (the Ministero della Giustizia) will have the initial say on whether the rogatory can be notified on the relevant parties in Italy, using its political power to be able to veto the rogatory, if necessary. If it considers it appropriate to proceed, the document will be sent to the Italian Court of Appeal (the Corte d’Appello), which has the judicial power in this process.
In the case of an active rogatory, i.e. where Italian documents will have to be enforced in another country, only the Ministry of Justice has power of say. In this case, article 204 of the Italian civil procedure code will be relevant, and an Italian Judge will request the execution of a rogatory abroad, using the diplomatic route.
The procedure is the same as that of article 203 of the civil procedure code, relevant to internal rogatories, (which is in fact mentioned in art.204) with specific reference to the need of a rogatory in order to gather evidence in another jurisdiction, for use in Italian litigation proceedings.
It is therefore evident that, where it is necessary to effect service of a particular document or letter of request, or in any event there is the need for an instrument to obtain evidence outside its own jurisdiction, the judicial authority which is being asked to serve the letters of request will require the assistance of a Judge who does have this jurisdiction and competence.
The only way to request this help is by way of a rogatory. Each authority’s relevant powers and sovereignty are respected throughout, due to the fact that a diplomatic route is taken, and the enforcement of the legal documents, which are necessary for the civil proceedings, is guaranteed at the same time.
The fundamental principles and requirements of the civil matters are also respected, in particular in litigation proceedings, for example when a request is made to a party to provide documents as evidence, or to provide testimonial evidence.
Our firm has experience in this field, most recently in a case where we used a rogatory to notify a Subpoena issued by a Court in the U.S. on an Italian bank, by which a legal request was made to provide past bank statements belonging to a defendant in litigation proceedings in the U.S.
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For further information contact Jessica Zama j.zama@oliverpartners.it
