Get PDF Diritto processuale civile: 9 (E-same da Avvocato) (Italian Edition)

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In this case, the victim, within ten days from receiving the notification, can object to the request for filing for more details see art c. According to Italian law, both the victim and his attorney may file a police report, i. The difference is that:. A lawsuit must be signed personally by the victim, even if he can charge the lawyer to file the report. However a police report can also be filed at the Italian Embassy and Consulates in the U.

A lawsuit must be filed within three months of the date the victim became aware of the crime, whereas for a complaint there is no deadline.

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In sexual assault cases only, a police report may be filed within six months of the date that the crime occurred. A police report, proposed in writing or orally, must always contain the description of the fact, the indication of the author if he is known and any witnesses. Nevertheless, it must be a more serious offense, for which the law calls for a penalty of life imprisonment or imprisonment of no less than two years, or more than six years, or an offence involving weapons of war and explosives.

The fundamentals of confinement are because of urgency, it is not possible to wait for action from the Public Prosecutor. At the validation hearing, the Judge can either approve or disapprove the request for validation. Moreover, if there are the conditions, the Judge can order the implementation of one of the precautionary measures provided by law or, alternatively, direct the immediate release of the arrested or confined person.

Precautionary measures are all those measures of privation or restriction of the rights of a person, adopted on the basis of a dual premise: the serious indications of guilt article c. The latter can be of three types: a preventing the pollution of the evidence; b preventing the danger of flight; c protecting the community. Among the precautionary measures, the custodial measures are particularly important because they exclude or limit personal freedom. They range from pre-trial detention art. The pre-trial detention has a maximum duration of two, four or six years, depending on the amount of the penalty for the offense for which the proceeding is being carried out.

In addition, there are also some established intermediate terms of duration, relating to each phase in which a procedure is divided. Even the intermediate terms are graded according to the severity of the offense for which the proceeding takes place. According to the art. If there are not the conditions for dismissing the case by a request for filing in the archives and after the term of art. If the Public Prosecutor files his request for trial in the office of the clerk of the Court, along with the request he also transmits the record containing the notice of crime, the documentation pertaining to investigations that have been completed and the minutes of acts carried out before the Judge of preliminary investigations.

The request for a trial must contain some formal requirements and, among them, the most important is a statement of the alleged criminal act, the aggravating circumstances, together with an indication of sources of evidence acquired. Trial hearings are normally public. Subsequently, cross examination may be addressed by the parties who did not ask for examination, in the order indicated in article The person who asked for examination of witness may conduct redirect examination.

The victim is ordered to appear at the first hearing and can ask for a compensation for damages, by a constitution of civil party see below. Travel expenses may be refunded by order of the Judge. After the acquisition of the necessary material for the decision, the discussion takes place, according to the order established by art.

The defendant, at his request, has the right to have the last word. After all the evidence has been heard and once the Public Prosecutor and the defence lawyers have argued their cases, the Judge retires to make his decision. A decision can be: a a sentence of nolle prosse if the penal action should not have been initiated or must not be continued ; b a sentence of acquittal if the defendant is found not guilty; c declaration of extinction of crime e.

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This decision can be appealed first before the Court of Appeal and then before the Supreme Court but only for matters of law and in some cases established by art c. After being found guilty, the defendant- but also the Public Prosecutor if he is not satisfied with the decision- can bring an action: the former to clear his name or to reduce the previous sentence, the latter to get the conviction of the accused or an increase in the penalty.

Generally the judgment is based on the verbal evidence heard during the trial of first degree, so that, it is not necessary for the defendant and victim to appear again. Appeal before the Supreme Court is provided only for some questions of law as the facts - already established in any previous degree - are no longer questionable. This kind of appeal is an unfailing remedy expressly provided by the Italian Constitution, against all judgments affected by violation of the law art.

Italian law provides several alternative procedures to an ordinary trial. Three of them avoid the trial, so the Judge's decision is founded on evidence in the file of the Public Prosecutor abbreviated trial, plea bargaining, proceeding by decree. The other two come directly to trial, jumping the previous phases: the preliminary hearing immediate trial or the preliminary investigation and the preliminary hearing summary trial.

Abbreviated trial: in the preliminary hearing or in the conversion of another special proceeding, the accused can always ask the Judge to be judged on the basis of the evidence gathered in the preliminary investigation stage, giving up the trial. If convicted, he receives a reduced sentence to the extent of one third.

The court is bound to accept this request and the Prosecutor has to accept and respect this. The accused may also make the request for abbreviated trial, subordinating it to additional evidence. In this case, however, the Judge is not obliged to accept the request. The judgment of abbreviated trial can be appealed.

Plea bargaining: this is an agreement between the accused and the Prosecutor on the extent of the penalty to be applied and, implicitly, on the affirmation of guilt. It also may be requested either in the preliminary hearing or upon conversion of another special proceeding. This proceeding allows you to take advantage of a discount of up to one-third of the original penalty. In proceedings not preceded by preliminary hearing the plea agreement may be required prior to the opening statement of the trial.

International Encyclopaedia for Civil Procedure

The agreement must be presented to the Judge who can accept or reject it. If the Judge accepts the agreement, the judgment becomes final rapidly. Otherwise the decision can only be challenged in the Supreme Court. Summary trial: as the immediate trial, it skips the preliminary hearing, but this depends entirely on the initiative of the Public Prosecutor in case of evidence of proof. This special procedure can be used when the accused was arrested in the act of committing an offence or made a confession and moreover, in other cases, specifically provided by law, including crimes relating to weapons or explosives and those related to the violence at sporting events.

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The defendant may request a time to defend not more than ten days in order to prepare his defence. He may also request, instead of this proceeding, to proceed with the forms of abbreviated trial or a plea bargaining. Immediate judgment: it skips the preliminary hearing and the trial comes quickly, to the request of the Prosecutor or the accused. The accused may ask for it after the notification of preliminary hearing or after notification of the penalty notice see below.

The Public Prosecutor may ask for it when the evidence is clear and the suspect was heard or did not appear despite the summons to be interrogated, or he is in precautionary custody. Condition for the Prosecutor to formulate his request, is that the review procedure see art. If the Judge admits the immediate judgment on the request of the Prosecutor, the accused - within fifteen days - may ask for the abbreviated trial or plea bargaining.

Mancini, F. Schockweiler, J. Moitinho de Almeida, P. Kapteyn, C. Gulmann, J. Murray, P. Jann, H. Ragnemalm and L. He is a member of the Bar of Stuttgart, where he is an "independent collaborator" in a set of chambers Buerogemeinschaft although he does not have chambers of his own in Germany.

His income is taxed entirely in Italy, his country of residence. No criticism has been made of him in relation to his activities in those chambers. In response to a written question from the Court, Mr Gebhard stated that he instructed them from time to time to act in judicial proceedings involving Italian clients in Italy. They complained of his use of the title avvocato on the letterhead of notepaper which he used for professional purposes, of his having appeared using the title avvocato directly before the Pretura and the Tribunale di Milano and of his having practised professionally from "Studio Legale Gebhard".

It does not appear that the Bar Council has taken any formal decision on that application. It states that a lawyer providing services is to adopt the professional title used in the Member State from which he comes, expressed in the language or one of the languages of that State, with an indication of the professional organization by which he is authorized to practise or the court of law before which he is entitled to practise pursuant to the laws of that State Article 3.

As far as the pursuit of all other activities is concerned, the lawyer remains subject to the conditions and rules of professional conduct of the Member State from which he comes, without prejudice to respect for the rules, whatever their source, which govern the profession in the host Member State, especially those concerning the incompatibility of the exercise of the activities of a lawyer with the exercise of other activities in that State, professional secrecy, relations with other lawyers, the prohibition on the same lawyer acting for parties with mutually conflicting interests, and secrecy Article 4 4.

For the purpose of the pursuit of the professional activities referred to in the preceding paragraph, the establishment on the territory of the Republic either of chambers or of a principal or branch office is not permitted. It is therefore necessary to consider the scope of the concept of "establishment".

Subject to the exceptions and conditions laid down, it allows all types of self-employed activity to be taken up and pursued on the territory of any other Member State, undertakings to be formed and operated, and agencies, branches or subsidiaries to be set up. The fact that the provision of services is temporary does not mean that the provider of services within the meaning of the Treaty may not equip himself with some form of infrastructure in the host Member State including an office, chambers or consulting rooms in so far as such infrastructure is necessary for the purposes of performing the services in question.

Such a national comes under the provisions of the chapter relating to the right of establishment and not those of the chapter relating to services. Membership of a professional body may be a condition of taking up and pursuit of particular activities. It cannot itself be constitutive of establishment.


Such provisions may stipulate in particular that pursuit of a particular activity is restricted to holders of a diploma, certificate or other evidence of formal qualifications, to persons belonging to a professional body or to persons subject to particular rules or supervision, as the case may be. They may also lay down the conditions for the use of professional titles, such as avvocato. Consequently, they must take account of the equivalence of diplomas see the judgment in Thieffry, paragraphs 19 and 27 and, if necessary, proceed to a comparison of the knowledge and qualifications required by their national rules and those of the person concerned see the judgment in Vlassopoulou, paragraph On the other hand, where the taking-up or the pursuit of a specific activity is subject to certain conditions in the host Member State, a national of another Member State intending to pursue that activity must in principle comply with them;.

Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court. The temporary nature of the provision of services, envisaged in the third paragraph of Article 60 of the EC Treaty, is to be determined in the light of its duration, regularity, periodicity and continuity. The provider of services, within the meaning of the Treaty, may equip himself in the host Member State with the infrastructure necessary for the purposes of performing the services in question.

A national of a Member State who pursues a professional activity on a stable and continuous basis in another Member State where he holds himself out from an established professional base to, amongst others, nationals of that State comes under the provisions of the chapter relating to the right of establishment and not those of the chapter relating to services. The possibility for a national of a Member State to exercise his right of establishment, and the conditions for the exercise of that right, must be determined in the light of the activities which he intends to pursue on the territory of the host Member State.

Where the taking-up of a specific activity is not subject to any rules in the host State, a national of any other Member State will be entitled to establish himself on the territory of the first State and pursue that activity there. National measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it.

Member States must take account of the equivalence of diplomas and, if necessary, proceed to a comparison of the knowledge and qualifications required by their national rules and those of the person concerned. This site uses cookies to improve your browsing experience. Would you like to keep them?