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EUROPEAN INJUNCTION

The European Parliament and the Council adopted on 12 December 2006 the Regulation (EC) No 1896/2006 establishing a European proceeding for injunction order aimed to rapid and effective collection of commercial claims arisen from cross-border legal disputes – in which at least one of the parties' domicile or residence is in one of the European Union Member States and it is different from that of the court seized (except from Denmark).

The European injunction is issued upon creditor's request in order to obtain the fulfilment of his/her obligation, such as payment of a sum of money.

The European enforcement procedure is merely optional and yet not substitute for the national procedure of injunctive relief. This is to say that such a procedure does not prevent the creditor, whenever certain conditions are met, from recourse to other debt collection procedures subject to European and national regulations.

With the introduction of this procedure, the objectives of the European legislator were simplification, speed-up and cost reduction of procedures for cross-border disputes concerning pecuniary claims (debt collection procedures) not subject to objection, and in addition the will of guaranteeing free circulation of European injunction orders in all States, except from Denmark.

Therefore, the establishment of the European injunction regards only those uncontested claims.

This regulation applies if the following conditions are fulfilled:

- civil and commercial matters (procedures of customs, administrative, fiscal, bankruptcy matters are not covered, as well as agreements and similar procedures, wills and testaments, inheritance and social security);

- in presence of cross-border disputes, that is one of the parties' domicile or residence is in one of the Member States, which is different from that of the court seized, with the exception of Denmark;

- the claim for which protection is sought shall be pecuniary in nature, of a fixed amount and due (that is of a certain fixed sum and not subject to any term or condition, as well as payable on the date for which the request for European injunction is submitted), uncontested by the debtor and of a contractual nature, as the Regulation exempts extra-contractual claims.

PROCESS OF ISSUING OF EUROPEAN INJUNCTION

The application for European injunction order, aimed at obtaining the European injunction, may be submitted by means of a standard application form, attached to the Regulation, before the competent court, to be determined in accordance with the EU legislation contained in the Regulation No 44/2001.

In the application for European injunction, the following content shall be listed:

- name and address of the parties, and, if applicable, of their representatives, as well as the court whom the application is submitted to;

- the claim amount and, if applicable, interest, contractual penalties and costs;

- in case interest on the claim are required, interest rate and time period for which the interest is demanded;

- the cause of action, including a description of the circumstances invoked as the basis of the claim;

a description of evidence supporting the claim;

- grounds for jurisdiction;

- the dispute cross-border nature.

In particular, it should be noted that Italy accepts the application for European injunctions only if submitted on paper form and in Italian language.

Once the application is submitted, the Court shall verify that all above-mentioned formal requirements are met and may call on the applying party to complete or modify the application, if found necessary.
Once the required conditions are examined, the Court may:

- reject the application for different reasons, as procedural, general (lack of jurisdiction for instance) albeit rare of merit.

The rejection of the application shall not be right of appeal.

- approve the application and in this case issue the injunction order on a ready-drafted form, within 30 days from date of submission.

The issued European injunction will be notified to the debtor, who may pay or oppose the injunction order within 30 days from the date of notification.

If the debtor does not oppose, the European injunction will become enforceable in the State of origin and will be recognised in all Member States (without a necessary declaration of enforceability and without being possible to oppose its reconsignment), as well as transmitted to the applicant.

OBJECTION TO EUROPEAN INJUNCTION

The eventual objection to the European injunction shall be put before the Court who issued it, by filling – in this case as well – a standard form envisaged by the regulation. The objector shall not be required to specify the reasons of the objection.

In that event, the European injunction will lapse but a new proceeding for debt collection will begin before the competent Courts of the Member State of origin, in accordance with the rules of ordinary civil procedure therefore, a full-knowledge proceeding that extends to the substance of the opposed claim and to the exceptions raised by the objector.

Do you wish to receive additional information about the European Injunction and how to submit the application or make an objection? Contact us.

E-mail: info@arnonesicomo.com / Tel: 0039 0916124005

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Criminal rehabilitation Italy: what criminal rehabilitation is

The criminal rehabilitation procedure in Italy allows persons who have been convicted of a crime by a judgement having the force of res judicata or by criminal judgement not objected to request, to obtain deletion of offences from the italian criminal record and subsequently discharge of the offences, provided that certain requirements are met.

The request for criminal rehabilitation in Italy may be submitted by the party concerned in person or by his/her lawyer whose assistance is essential during the trial.

The party concerned may submit a request of rehabilitation in regard to some specific convictions (this is know as partial rehabilitation) or in regard to all recorded convictions.

The Italian competent authority that makes the decision on the request for rehabilitation is the Supervisory Court of the place in which the judgement or the final criminal conviction decree seems to have been issued.

Criminal rehabilitation Italy: requirements to submit the criminal rehabilitation application

The criminal rehabilitation is granted when:

- at least 3 years have elapsed since the day of execution of penalty;

- the party convicted has effectively and constantly provided evidence of good conduct.

In case of crimes committed by repeat offenders, the term is eight years, and in case of habitual offender, professional criminals or persons with a criminal tendency, the term is ten years.

The criminal rehabilitation in Italy cannot be granted when the party convicted:

- is subject to security measures;

- has failed to fulfil his/her obligations of compensation derived from the crime, unless he/she demonstrates to be unable to fulfil those.

Criminal rehabilitation Italy: starting point for application

The useful benchmark from which to calculate the time for submitting application for criminal rehabilitation in Italy runs from the date in which the conviction has been executed or has been declared extinguished.

Where a suspended sentence has been granted, the starting point begins from the same moment in which the period of suspended sentence begins.

CRIMINAL REHABILITATION ITALY: how the procedure is conducted

After filing the motion for criminal rehabilitation, the preliminary phase begins and it is managed by the Supervisory Court.

Once the preliminary phase is terminated, the Court schedules a hearing for debating. The party concerned is notified on the scheduled date for the hearing.

At the end of the hearing, the Court makes decision on the application by order which will be notified to the party concerned and to all the relevant Offices, including the Office for Criminal Records.

Criminal rehabilitation Italy: the effects of criminal rehabilitation application in relation to foreigners

Many are the cases in which a foreigner discovers to have been convicted of a crime in Italy, and because of this conviction he/she is subject to negative consequences for his/her own life.

The rehabilitation of foreigners is of great importance, for instance, in regard to procedures for granting of the Italian citizenship or for release of the Italian long-term residence permit.

In these latter cases, the rehabilitation, as it wipes out “any penal effect of conviction”, is a procedure absolutely to take into consideration if one wishes to obtain specific benefits envisaged by the Italian
immigration guidelines.

In such circumstances, it is always preferable to be assisted by a criminal lawyer, who not only formulates the motion, but is also capable to correctly identify which documents to attach to the motion in order to prove the existence of all suitable factors to demonstrate the essential requirement of “good conduct”.

For more information, please, contact us.

E-mail: info@arnonesicomo.com / Tel: 0039 0916124005

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Criminal rehabilitation Italy: what criminal rehabilitation is

The criminal rehabilitation procedure in Italy allows persons who have been convicted of a crime by a judgement having the force of res judicata or by criminal judgement not objected to request, to obtain deletion of offences from the italian criminal record and subsequently discharge of the offences, provided that certain requirements are met.

The request for criminal rehabilitation in Italy may be submitted by the party concerned in person or by his/her lawyer whose assistance is essential during the trial.

The party concerned may submit a request of rehabilitation in regard to some specific convictions (this is know as partial rehabilitation) or in regard to all recorded convictions.

The Italian competent authority that makes the decision on the request for rehabilitation is the Supervisory Court of the place in which the judgement or the final criminal conviction decree seems to have been issued.

Criminal rehabilitation Italy: requirements to submit the criminal rehabilitation application

The criminal rehabilitation is granted when:

- at least 3 years have elapsed since the day of execution of penalty;

- the party convicted has effectively and constantly provided evidence of good conduct.

In case of crimes committed by repeat offenders, the term is eight years, and in case of habitual offender, professional criminals or persons with a criminal tendency, the term is ten years.

The criminal rehabilitation in Italy cannot be granted when the party convicted:

- is subject to security measures;

- has failed to fulfil his/her obligations of compensation derived from the crime, unless he/she demonstrates to be unable to fulfil those.

Criminal rehabilitation Italy: starting point for application

The useful benchmark from which to calculate the time for submitting application for criminal rehabilitation in Italy runs from the date in which the conviction has been executed or has been declared extinguished.

Where a suspended sentence has been granted, the starting point begins from the same moment in which the period of suspended sentence begins.

CRIMINAL REHABILITATION ITALY: how the procedure is conducted

After filing the motion for criminal rehabilitation, the preliminary phase begins and it is managed by the Supervisory Court.

Once the preliminary phase is terminated, the Court schedules a hearing for debating. The party concerned is notified on the scheduled date for the hearing.

At the end of the hearing, the Court makes decision on the application by order which will be notified to the party concerned and to all the relevant Offices, including the Office for Criminal Records.

Criminal rehabilitation Italy: the effects of criminal rehabilitation application in relation to foreigners

Many are the cases in which a foreigner discovers to have been convicted of a crime in Italy, and because of this conviction he/she is subject to negative consequences for his/her own life.

The rehabilitation of foreigners is of great importance, for instance, in regard to procedures for granting of the Italian citizenship or for release of the Italian long-term residence permit.

In these latter cases, the rehabilitation, as it wipes out “any penal effect of conviction”, is a procedure absolutely to take into consideration if one wishes to obtain specific benefits envisaged by the Italian
immigration guidelines.

In such circumstances, it is always preferable to be assisted by a criminal lawyer, who not only formulates the motion, but is also capable to correctly identify which documents to attach to the motion in order to prove the existence of all suitable factors to demonstrate the essential requirement of “good conduct”.

For more information: info@arnonesicomo.com / https://goo.gl/ivDpLI

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SIS SCHENGEN: what it is and what it is for

The SIS Schengen (Schengen Information System) was established as a consequence of the introduction of an area for free movement of people, which is subsequent to the abolition of interior border checks among Member States, and set by the Schengen Agreement singed on 14 June 1985 and the related implementing Convention of 19 June 1990.

In this regard, it has been recognized the need to introduce a system which is able to guarantee security and public order of contracting Member States in addition to those measures already taken by each Country, such as the strengthening of police and judicial cooperation and the harmonization of policies regarding visas and asylum.

In line with these, the Schengen Information System (also called SIS II) has been established, it is to be meant as a system of information common to each Member State within the Schengen area (data network), fed through the utilization of national data bases, each of these connected to one central database, located in Strasbourg and integrated by a network called SIRENE (Supplementary Information Request at the National Entries).

All data, which is considered relevant by each Member State, converges into SIS, in order to track migrations, effectively fight against organized crime, develop decisive cooperation and allow the access to people's and objects' data to avoid security-related shortage.

The SIS therefore allows for accessing in few minutes any alert issued by a Schengen State's police authority within the Schengen area.

Records can be issued for persons:

- wanted or under surveillance by the police;

- missing or in need of protection (such as minors);

- non-citizen of a Schengen Member State, to whom is interdicted to enter or even move within the Schengen area.

In order to prevent violation of personal rights, the “Supervisor for protection of personal data” is entitled to monitor the correct handling of data contained in the computer database, whose involvement may occur ex officio or upon request of the party concerned.

SIS SCHENGEN: How to know if one is registered in the database

Anyone may request to access the SIS for consulting information and disclosing data related to one's own person.

To those who are concerned, they are recognized the right to obtain correction of data in case errors occur or to request for deletion if data proves to be invalidated by an error of law.

Following modifications introduced by Legislative Decree no. 196/2003 (Data Protection Law), in terms of the concerned party's exercise of the right of access SIS and other recognized rights, as correction, supplementation and deletion, from 1 January 2004 the access has to be considered “direct”.

In other words, the above mentioned rights may be executed directly against the authority who holds the core competence of S.I.S. (Schengen Information System) national section, that is the concerned party can contact the Ministry of Interior – Department of Public Security – directly and no longer through the only Supervisor.

In case the Ministry of the Interior fails to provide a satisfactory answer, the concerned party may lodge a complaint to the Supervisor for protection of personal data.

SCHENGEN INFORMATION SYSTEM: cases of unlawful registration

It is important to question oneself about what being registered in the Schengen archive may result in, that is which consequences the registration bring about.

First of all, the registration in the S.I.S common database impedes freedom of movement within the Schengen area, with all those negative consequences that this may lead to. One may think about all those persons who have the need to move from one Country to another to work and the serious economic loses they might experience for the only reason of being reported to the S.I.S.

However, there might be cases of totally unlawful alerts, and for this reason worthy to be appealed. Measures taken by Authorities after confirmation of SIS registration may also be unlawful.

The most common assumptions:

- it may happen that a Member State in the Schengen area under Article 96 of the Schengen Convention issues an alert while the person is lawfully resident in another Member State.

That is because a regularly resident in a Member State of the Schengen area cannot simultaneously be registered in the SIS as “undesirable” person in the Schengen area.

In this case, the concerned party is recognized the right to obtain deletion of the alert;

- a general refusal of regularization on the national territory has been issued for the single mere report of the concerned party to the Schengen Information System, hence without the competent Authority for resident permit issuance having denoted the actual circumstances which justified the refusal measure, to allow the concerned party understanding the reasons why a decree of expulsion has been issued and being able to properly defend himself/herself in the competent law courts;

- the foreigner's expulsion from the Italian territory occurs in presence of a conviction for certain offenses, without the competent Authority having ensured the person's effective social hazardousness. In other words, this is to evaluate if the conviction may or not be included among those recognized as precluding the foreigner's to enter Italy and renovate the resident permit previously issued (Art. 4 paragraph 3 of the Consolidated Law):

- the refusal measure of accomplishment of regularization procedure on the national territory is based on the concerned party's report to the Schengen Information System, although the concerned party at the same time has obtained from those foreign authorities who issued the alert in the S.I.S. deletion of the latter.

SIS SCHENGEN: what to do in case of unlawful alert

Under the Schengen Convention, only the State which has issued the alert inserted in the S.I.S. can modify or delete it.

The modification or deletion procedure therefore varies according to the State of Schengen area which has issued the report.

In Italy, it will be necessary to request the access to the file which is archived in the Italian Head Office of S.I.S. (Schengen Information System SIS) at the Ministry of Interior, and simultaneously request for which authority has issued the alert and reasons behind the issuance.

Subsequently (if unlawful alerts will be reported), it will be possible to resort to the Authority who issued the alert by submitting a request of deletion or modification of personal data in the database.

The request may be drafted in Italian language or English and must be supported by suitable and proved reasons.

In case of unjustified and unlawful refusal of the deletion/modification request, the concerned party could always bring legal proceeding before the Regional Administrative Court (It. TAR). In this case, it is necessary to be assisted by a lawyer.

Do you think you have been victim of an unlawful alert to the S.I.S. and want to have more information about? Contact us.

For info: info@arnonesicomo.com / Tel: 0039 0916124005

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Transcription of foreign decree absolute: the governing law

The exponential increasing number of foreigners registered in recent years in Italy, as well as of marriages between people of different citizenship, and as a consequence of divorces, has brought the attention to the Italian recognition of foreign decrees of non-litigious jurisdiction.

While previously rulings of dissolution of matrimonial ties issued by foreign Tribunals and Courts became effective on the Italian territory after deliberation of the Court of Appeal (which recognized those rulings as valid through issuance of a decree subsequently recorded in the civil registry of the competent Municipality), today, compatibly with the principle of international movement of judicial proceedings, foreign decrees and proceedings, whenever they meet requirements envisaged by the law (Articles 64, 65 and 66 of Law 218/1995), are automatically recognized.

It is for the Civil Registrar to establish the existence of unfailing requirements for transcription purposes.

If the Civil Registrar does not consider existing those envisaged requirements for transcription of a foreign divorce decree or proceeding, the Registrar will withhold the performance and transmit the files to the Public Prosecutor.

The Prosecutor may issue an opinion endorsing the transcription (in this case the Civil Registrar will record the decree while serving notification on the party concerned), or denying the request of recognition (in this case the Civil Registrar will serve notification of decision of refusal on the party concerned by denoting reasons and advising on the possibility to bring the matter before the competent Court of Appeal in order to submit a request for checking if recognition requirements are met).

The request of transcription must be submitted to the Civil Registrar of the Municipality whose registry the marriage has been recorded in, personally by the party concerned, through the Italian consular Authority or through a lawyer with special power of attorney.

Arrangements differ in terms of ecclesiastical judgments with regard to annulment of marriages, since they are issued by a foreign State, as in the case of the Vatican City State, they must be subject of enforceability by the Court of Appeal.

In this latter case, the Civil Registrar will not automatically recognize the ecclesiastical judgment by transcribing it directly in the Civil registry, but the Registrar will record the decree issued by the Court of Appeal by means of which the ecclesiastical judgment will be recognized effective on the Italian territory.

The Civil Registrar, who records the foreign divorce decree by transcribing it in the margin of the marriage certificate, will notify on behalf of each spouse both the Register Office of the Municipality of residence for modification of civil status from married to single, and the Municipality of birth for the transcription.

Transcription of foreign decree absolute: necessary requirements

Before establishing that the foreign divorce decree meets all necessary requirements for the transcription, the Civil Registrar will establish that everything is consistent from a formal point of view, that is:

- the Municipality has received a true copy of the divorce certificate;

- the divorce certificate has been duly legalized by the Italian consular or diplomatic Authority located in the State in which the decree has been issued;

- a certified translation in Italian language of divorce certificate is submitted;

- the divorce certificate has been received in full-form.

By the end of this phase, the Civil Registrar will establish the existence of the substantive requirements in accordance with Article 64 of Law 218/1995 for transcription of foreign decree absolute of divorce (divorce by consent, uncontested divorce, judicial divorce), those are:

- the judge of the foreign State who issued the decree could know about the lawsuit according to jurisdiction principles of the Italian Law;

- the act instituting court proceedings has been brought into knowledge by the defendant according to what is envisaged by the law of the State in which the trial took place and no essential right of defense has been infringed;

- the parties have appeared before court according to the law of the State in which the trial took place or the contumacy has been declared in accordance with the law;

- the decree has become absolute in accordance with the law of the State in which it has been issued;

- the decree is not contrary to another judgment issued by an Italian judge and become final;

- no proceeding is pending before an Italian Judgefor the same object and between the same parties which has begun prior to the foreign proceeding;

- the decree provisions do not produce any effect contrary to the Italian public policy.

Transcription of foreign decree absolute: decrees issued in European Union Countries (except for Denmark)

In regard to transcription of foreign divorce decrees issued in a European Union Country, the arrangement in Regulation EC 2201 of 27 November 2003 is implemented.

The Civil Registrar will receive from the judicial Authority or the competent Authority of the Member State in which the divorce decree has been issued, together with the request of the party concerned, a certificate drafted utilizing a numerical coding system, which does not need any translation or legalization.

The party concerned will submit a statement in lieu of notary deed stating that between the parties and for the same reason, a judgment given in a proceeding between the same parties in the required Member State or a prior judgment concerning the same parties given in another Member State or in a third country does not exist.

The Regulation EC 2201/2003 is applicable to transcription of divorce and separation decrees whose proceeding started after 1 March 2005, and also to those ones on-going on that date, provided that they started after 10 March 2001, date on which the previous Regulation EC 1347/2000 became effective.

Transcription of foreign decree absolute: decrees issued in non-EU Countries and Denmark

The transcription of an Italian citizen's divorce given by a foreign court of a country which is not part of the European Union, or in Denmark, and also those issued BEFORE 1 March 2001 in the European Community Countries require the Civil Registrar to examine the divorce decree for verification of requirements in accordance with Articles 64 et seq of Law 218/1995.

The required documents for transcription purposes are the following:

- divorce certificate, the original document or a true copy of it, issued by the foreign Judicial Authority. The certificate must be legalized by affixing the “Apostille” in application of what provided by the Hague Convention of 1961 for the acceding countries or legalized by the consular Office for the other countries;

- certification of decree absolute in accordance with the governing law in the State of issuance;

- translation in Italian language declared conforming to the original by the local Italian diplomatic/consular Office, or certified translation before an Italian court;

- statement in lieu of notary deed in accordance with Article 47 of Law 445/2000 stating that a judgment between the same parties and for the same reason has not been pronounced by the Italian Judge and that no proceeding is pending in Italy prior to the foreign one.

Do you wish to receive assistance in Italy for transcription procedure of a foreign divorce decree? Contact us.

For info: info@arnonesicomo.com /Tel: 0039 0916124005

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ITALIAN CRIMINAL RECORD CHECK: TYPES OF RECORD IN ITALY

The criminal record contains information of final conviction decrees and other decrees of civil and administrative matter on a specific person.

More particularly, the Office for Criminal Records which is present at any Public Prosecutor's Bureau, issues the following certificates subject to payment of administrative fee (€ 23,84 plus € 3,84 if urgent):

- general certificate: it contains final decrees of criminal, civil and administrative matter;

- criminal certificate: it contains final criminal conviction decrees;

- civil certificate: it contains decrees related to one person's capability (judicial disqualification, incapacitation, legal disqualification, support administration), decrees related to bankruptcy (which can no longer be stated from 1 January 2008), expulsion decrees and appeals against the latter ones.

Currently, the criminal record is issued by any Public Prosecutor's Bureau, regardless place of birth or place of residence of the party concerned.

The certificate may be requested:

- by the concerned party or by another person designated by him/her;

- by the public administrations and by the public service operators;

- by the criminal judicial authority;

- by the defendant's lawyer.

Non-EU citizens, who are not passport holders, may request for release of criminal record, however they need to submit a copy of the residence permit.

The criminal record can be used for 6 months after release.

ITALIAN CRIMINAL RECORD CHECK: When it's free?

The criminal record is free when it is required for the purpose of:

- being exhibited during adoption procedures and guardianship of minor children (Art. 82 of Law 184/83);

- being exhibited during labour disputes, compulsory social security benefits and assistance (Art. 10 of Law 533/73);

- being exhibited during a proceeding in which the party concerned is eligible to benefit from free legal add (Art. 18 of Presidential Decree 115/2002);

- being attached to the application for redress of justice miscarriage (Art. 176 of Implementing Procedures of the Civil Code).

ITALIAN CRIMINAL RECORD CHECK: Record of pending trials

Should one hypothesizes of being suspect of a criminal offence in Italy, it is possible for him/her to submit a request for record of pending trials.

The record of pending trials contains information of on-going criminal trials on a particular person and the eventual related judgements of indictment.

The record is issued by the Public Prosecutor's Bereau of place of last residence of the party concerned.

The record may be requested:

- by the concerned party or by another person designated by him/her;

- by the public administrations and by the public service operators;

- by the criminal judicial authority;

- by the offended party and witness's lawyer.

If otherwise, one is certain of being suspect of a criminal offence in Italy, he/she may submit an application 335 of the Code of Criminal Procedure, following which information concerning the status of criminal proceedings against him/her (number of proceeding, the Public Prosecutor's name and surname, offence for which the Judicial Authority is undertaking procedures in Italy) will be disclosed.

ITALIAN CRIMINAL RECORD CHECK: THE “VISURA”

The “Visura” allows access to information available without providing reasons of the request, it contains all registrations against the party who requests it, including those which are not stated in the Criminal Record requested by the same party. The visura is not valid as certificate and therefore cannot be exhibited for administrative purposes or work purposes.

The visura is not subject to payment of any administrative fee.

Do you want to receive advice on Italian criminal record? Please, contact us.

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Italian criminal procedure: how it is implemented

The Italian criminal procedure begins when the Police or the Public Prosecutor becomes acquainted with a fact which could be considered a crime. Some crimes require criminal complaint by the injured party in order to proceed. Some others (the more serious ones) do not require any criminal complaint but procedure will be triggered automatically.

Once the crime is reported, investigation will take place and its duration is dependant upon type of crime.

Over the course of investigation, the person who may have committed the crime and the injured party supported by their lawyers or their technical advisers could carry out defence investigation, whose result will be submitted to the Public Prosecutor in charge for the criminal procedure, in order to support defence of each party.

Once investigation is closed, the Public Prosecutor will determine if sending the case to trial or submitting to the Judge in charge for Preliminary Investigation (Giudice per le Indagini Preliminary) a request for filing in the archives .

The suspect and the injured party may object to the request for filing in and a hearing of debate will be scheduled after the objection. In this case, the Judge in charge for Preliminary Investigation will determine if new investigation has to be carried out or rather archiving the case. For certain assumptions, the Judge may also order the Public Prosecutor to formalize an indictment against the suspect (i.e. enforced indictment).

For certain types of crime, between the end of preliminary investigation and the beginning of criminal trial, the Italian criminal code additionally provides for a “preliminary” hearing.

The preliminary hearing gives greater safeguards to the person who may have committed the crime, since during the debate, the defence attorney will explain the reasons why a trial against the suspect should not commence, as evidence gathered by the Public Prosecutor is considered to be insufficient or unsuitable to support the complaint. It will be for the Court to determine if going to trial or rendering a “pronouncement of acquittal”.

In case the criminal trial takes place, the defendant has the possibility to ask to be heard, to submit documents and witnesses on his/her behalf. The same rights are recognized to the injured party (the victim of the crime), who can participate in the criminal trial in order to obtain compensation for pecuniary and non-pecuniary losses as consequence of crime.

The list of witnesses for each party must necessarily be submitted at least seven days prior to the date scheduled for the beginning of the criminal trial (criminal case), penalty for that is the revocation of the right to submit witnesses.

The Italian criminal law allows the defendant to request for an alternative proceeding for definition of the trial against him/her. The choice of an alternative proceeding will allow for a reduced sentence, in case of conviction.

Once the first degree of judgement ends, the Court will render a judgement which must be justified and can be challenged by the defendant (in case of conviction) or by the Public Prosecutor (in case of acquittal).

The injured party is also recognized the right to challenge the judgement.

In Italy, there are three degrees of judgement: Court (collegiate or monocratic structure), Court of Appeal and Court of Cassation (i.e. Supreme Court).

Italian criminal procedure: safeguards for foreign defendants

Foreigners involved in a criminal procedure in Italy are very often not informed of their rights recognized by the Italian law.

Few foreigners charged with a crime in Italy, or even simple victims of crime know that they have the right of being assisted by an interpreter of the language they speak. The right of assistance and translation of procedural documents in the foreigner's mother tongue provided for in the Article 143 of the penal code is guaranteed by the Italian Constitution as well as the European Convention on Human Rights, and its foundation lies in the right of defence recognized to any party in the contest of the Italian criminal procedure.

In the Italian criminal procedure, in fact, the first who has to defend himself/herself on the pending charges is the person who is alleged to have committed the crime. Therefore, if the foreigner is not made capable of understanding the content of a measure directed to him/her, or stating his/her own oral defence in his/her mother tongue, subsequently the person will not be able to adequately prepare his/her defence, neither to support his/her defence attorney to draw up a correct defence strategy and the best one.

The omission of translation of an essential measure directed to the foreigner will result in the measure invalidity, cases in which the criminal procedure is resumed to redress invalidity are very frequent.

Similarly, if during the trial foreign witnesses had to be heard, they would also have the right to be supported by an interpreter speaking their language.

The Italian criminal law recognizes the right to free language assistance to foreign defendants or suspects in order to communicate with their defence attorney before being questioned, or for submit a request or a statement of defence during criminal procedure.

Italian criminal procedure: safeguards for foreign injured parties


If the foreign person, who is victim of crime, thinks that the language barrier could interfere with his/her own right to obtain a compensation for the damage suffered during an Italian criminal trial, such a belief is absolutely wrong.

The Italian legislator has indeed projected the possibility that the foreign injured party also has the right to be assisted by an interpreter, in case the person does not know neither speaks Italian language.

The foreign injured party, who has suffered a damage as a result of a crime, can participate in the trial through a special prosecutor.

In this latter case, it is generally the injured party's defence attorney who acts on behalf of his/her client. It will be sufficient to confer a special power of attorney drafted in two languages (Italian and the foreigner's language) on the lawyer, it will empower the prosecutor to participate in the trial instead of the injured party and submit a request for compensation for damage on his/her behalf.

Italian criminal procedure: what does it happen in reality?

Although the Italian law provides a series of procedural safeguards for foreigners, these are not always known or disclosed to foreigners, who perhaps while travelling in Italy are involved in a crime as defendants or victims.

Those institutions assigned to ensure compliance with the law regulations very often omit information regarding the foreigner's rights within an Italian criminal procedure. These rights already exist before the trial takes place (for instance, the identification phase or the foreigner's information retrieval during investigations), and their violation may interfere in the negative on the outcome.

Among many cases that happen the most, it is when the foreigner, who is alleged of committing a crime, is brought to the Police Office for identification, in this phase he/she is provided with a public defender. In the majority of cases, the foreigner is not informed of the fact that identification is the preliminary act to implementation of criminal investigation against him/her, neither is notified that already in that phase he/she is assigned with a public defender. As a consequence, the foreigner simply goes back to the home country, confident that nothing has happened, while on the contrary he/she is suspected to have committed a crime in Italy and risks that the criminal trial takes place without him/her, resulting in a potential conviction.

Cases in which the foreigner comes to know of penal conviction rendered in Italy without even being informed that a criminal procedure against him/her has taken place are very frequent. Since the Court has to verify if the foreign defendant knows Italian language, it very often happens that just simply pronouncing an Italian word may determine the certainty that the defendant is capable of understanding and comprehending our language.

That is why the assistance of Italian lawyers, who speaks other languages, becomes essential in case one is involved in a criminal trial in Italy, even as victims.

For info: goo.gl/rRSwVU

E-mail: info@arnonesicomo.com

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RESPONSABILITA' MEDICA: cosa è cambiato con il decreto Gelli

Con la pubblicazione in Gazzetta Ufficiale e l’entrata in vigore della legge 8 marzo 2017, n. 24, recante “Disposizioni in materia di sicurezza delle cure e della persona assistita, nonché in materia di responsabilità professionale degli esercenti le professioni sanitarie", giunge a compimento il percorso di riforma della responsabilità penale e civile degli operatori sanitari.

Il provvedimento, di estrema importanza, affronta vari temi ed è destinato ad incidere sulla responsabilità degli operatori sanitari, tanto da un punto di vista civilistico quanto da un punto di vista penalistico. Tra i più rilevanti: la sicurezza delle cure e del rischio sanitario; la responsabilità dell’esercente la professione sanitaria e della struttura sanitaria pubblica o privata; le modalità e caratteristiche dei procedimenti giudiziari aventi ad oggetto la responsabilità medica; l’obbligo di assicurazione; l'istituzione del Fondo di garanzia per i soggetti danneggiati, che risarcirà i pazienti danneggiati nel caso in cui gli importi eccedano i massimali coperti dalle polizze assicurative delle strutture o dei professionisti, nonché in caso di insolvenza degli stessi.

Viene introdotta la nuova figura del Garante per il diritto alla salute, cui i cittadini potranno segnalare eventuali malfunzionamenti del sistema, in merito alla mancata osservanza dei “Livelli essenziali di assistenza”.

A livello regionale, poi, verrà istituito il Centro per la gestione del rischio sanitario e della sicurezza del paziente. Mentre, a livello nazionale, ad essere istituito sarà l’Osservatorio nazionale delle buone pratiche sulla sicurezza nella sanità.

RESPONSABILITA’ CIVILE DEL MEDICO: l’inversione dell’onere della prova

Con la riforma, la responsabilità civile del professionista non verrà più considerata come contrattuale ma verrà inquadrata nell’ambito della responsabilità extracontrattuale, ai sensi dell’art. 2043 c.c..

La differenza rispetto al passato non è di poco conto ed infatti: se in passato era il medico a dover provare che l’evento dannoso si era verificato per cause a lui non imputabili, con la riforma l’onere della prova è totalmente invertito, a carico del paziente. Quest’ultimo dovrà dimostrare la colpa del medico, fornendo prova dell’evento (la lesione), la causa (colpa del medico), ed il nesso di causalità tra evento e causa.

Il nuovo inquadramento della responsabilità professionale del medico avrà dei risvolti soprattutto sul fronte risarcitorio.

Infatti, mentre in passato, veniva data rilevanza al rapporto diretto tra medico e paziente, il primo (nonostante fosse dipendente della struttura medico-ospedaliera pubblica presso la quale operava) poteva essere chiamato a rispondere direttamente per il danno causato. Il medico era coobbligato in solido con la struttura ospedaliera.

Con la riforma, il diritto del paziente ad ottenere un risarcimento è invece maggiormente garantito, nella misura in cui il danneggiato potrà agire direttamente contro la struttura ospedaliera, essenzialmente più solida e dunque più solvibile.

RESPONSABILITA’ PENALE DEL MEDICO: aperta la strada ad una nuova area di non punibilità

Nella ridisegnata cornice della responsabilità, viene introdotto nel codice penale un nuovo articolo, 590 sexies (responsabilità colposa per morte o per lesioni personali in ambito sanitario).

L’articolo 590 sexies, nel richiamare le pene previste per i delitti di cui agli artt. 589 e 590 c.p., se i fatti sono commessi nell’esercizio della professione sanitaria, al secondo comma recita: “qualora l'evento si è verificato a causa di imperizia, la punibilità è esclusa quando sono rispettate le raccomandazioni previste dalle linee guida come definite e pubblicate ai sensi di legge ovvero, in mancanza di queste, le buone pratiche clinico assistenziali, sempre che le raccomandazioni previste dalle predette linee guida risultino adeguate alle specificità del caso concreto".

Niente più differenze tra i gradi della colpa.

Se in passato, infatti, la punibilità si configurava anche nei casi di colpa lieve oggi questa è venuta totalmente meno, ai fini dell’accertamento della responsabilità penale medica.

L’art. 590 sexies c.p. àncora la non punibilità ai seguenti presupposti:

- la verificazione dell’evento a causa d’imperizia;

- il rispetto delle linee guida;

- l’adeguatezza alle specificità del caso concreto delle linee guida.

A ben guardare, dunque, viene introdotta all’interno del codice penale una nuova causa di non punibilità.

L’imperizia, tale da determinare nel paziente un danno, sarà punibile solo nei casi di colpa grave, nella misura in cui il medico non riesca a fornire la prova di aver rispettato le linee guida come definite e pubblicate ai sensi di legge ovvero dalle buone pratiche clinico assistenziali.

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Tel: 091 256124005 / E-mail: info@arnonesicomo.it

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BREXIT: the path towards divorce between the United Kingdom and Brussels

June 23, 2016, represents a memorable day for the European Union (if still definable this way), since on that day the British were called to express through a consultative and not binding referendum their own will to continue benefiting from the right of being European citizens.

The 'Brexit vote' saw a percentage of 51.9% voting in favour of leaving the EU, against 48.1% voting in favour of remaining.

Internal disagreements have clearly emerged. The outcome resulted into a schism among States of the United Kingdom. England and Wales registered the majority of votes in favour, contrary to Scotland and Northern Ireland.

The Scottish Parliament expressed the will of holding a second referendum to achieve independence. The request was not taken into consideration and Scotland therefore tried to propose a second referendum in regard to the secession from London.

Another crucial step towards the end of the British European experience, which lasted for 44 years, was the handover by the British ambassador, Tim Barrow, to the President of the European Council, Donald Tusk, of a letter containing the United Kingdom's official request of actuation of the exit procedure from the European Union, in accordance with Article 50 of the Treaty of Lisbon, signed by Theresa May.

Following that letter, Great Britain is now about to leave the EU and within two years' time has to discuss with the other member States terms, especially those economic ones, to exit the Union.

BREXIT: consequences and hunt for the Italian citizenship

After proclamation of Brexit referendum results, a true race for the request of Italian citizenship by the British has started, caused by their concern of losing all of those advantages and benefits recognized to European citizens.

One of the major risks is the loss of fiscal benefits (low aliquots on companies' incomes, currently set at 20%), which the United Kingdom at present benefits from, especially for multinational corporations. The United Kingdom's exit from EU actually sets the Country outside the European regulations, which implicate VAT bureaucratic simplification mechanisms, and in addition, decrease of royalty and dividend withdrawal fees for multinational corporations.

Moreover, from a commercial point of view, great changes will also occur. Until now, import-export operations have been regulated by European common laws, by the imposed intraCommunity purchase self-invoicing and consumption taxation, as no border existed. In the future, goods will have to be declared by customs bills, as if it were an extra-EU transfer.

This and much more have determined what could be considered a true “hunt for dual citizenship”.

BREXIT: regulations and procedures to obtain the Italian citizenship

The Italian citizenship may be acquired according the following requirements:

- by natural paternity/maternity: children whose father or mother are Italian citizens;

- by birth on Italian soil: 1) persons whose parents are unknown, Stateless or cannot pass on their citizenship according to the laws of the State of which they are citizens; 2) children of unknown parentage found on Italian soil and whose natural citizenship is impossible to ascertain;

- during minor age, as result of judiciary recognition/declaration of natural paternity/maternity, adoption or parental naturalization. In this latter case, the minor has to live with the parents, and once achieved the major age, the person can decide to renounce, if in possession of dual citizenship;

- by marriage to an Italian citizen, in presence of the foreigner's 2 year-time residence in Italy or 3 year-time residence abroad after wedding;

- by at least 10 year residence on Italian soil, for non-EU citizens. Cases of inferior required period occur (Article 9 L. 91/92);

- result of special credits, by special laws or benefits by law.

- Recognition of citizenship to descendants from emigrant Italian ancestors. The required conditions of such recognition are based on one side on proof of lineage of the subject who was originally appointed of citizenship (the emigrant ancestor), and on the other side proof of lack of interruption in transmission of the Italian citizenship.

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REAL ESTATE INVESTMENTS IN ITALY: Foreign and love for Italy

Despite a historical period marked by a deep economic crisis, the "Italian dream" never stop to be alive in the hearts of people from al lover the world.

Culture, good food, entertainment, buildings and landscapes are the main strengths that attract foreign investors increasing their desire to buy property in the "Bel Paese" for holiday or retire.

INVESTMENT PROPERTY IN ITALY: the most requested Italian regions


According to the estimates made from 2014 to the present, the most attractive places in Italy are:
- Liguria;
- Puglia;
- Sardinia;
- Lombardy;
- Sicily;
- Umbria;
- Piedmont.

Among International buyers who in recent years has demonstrated a growing interest in real estate properties in Italy, Chinese, acquired an important position and they seem to prefer the big cities like Rome, Milan, Venice, Como and also the Adriatic coast.

The increase in the Chinese investments flow in Italy did not happen by chance but it is due to some incentives for the purchase granted by the Italian Embassy in Beijing. First of all a "tourist visa – for the elective residence" for a period of five years which give right to property purchases in Italy only for tourism purposes or simply for investment.


INVESTMENT PROPERTY ITALY: passion for "the Sicilian East"


Sicily with its Mediterranean climate, rich in beauty and landscape, palaces, castles, rural areas, traditional food represent an ideal place of investment for foreign investors.

Among the chosen destinations stand out Taormina, the country houses with vineyards on Etna, Palermo, villas on sea and noble residences in Val di Noto, Cefalu, but also Ragusa Ibla and the Aeolian Islands.

The main investors are from Northern Europe and they are British, German, French and Swiss, who are particularly interested in the ancient buildings and historical and rural areas. The extra-European investors, Americans and Australians, prefer the town of Ragusa, Modica and Marina of Ragusa.

INVESTMENT PROPERTY ITALY: important guidelines for international buyers


Who can buy a property in Italy:
- A foreigner who is not legally residing, provided that it is permitted by an international treaty, or there is a reciprocity condition with the country of origin (it is therefore permitted to an Italian to buy a home);

A person legally residing in Italy and his family for less than three years, with residency permit or residence card;

- An European citizen, EFTA and stateless resident for more than three years.

The useful guidelines to invest in real estate:
- Obtain the tax code, by making a request to the Tax Office, required for the purchase deed;
- If you do not know the Italian language use an interpreter during the preparation of the deed, or if it is possible ask the notary to draw the act in foreign language;

Have the residence permit (if the person will remain in the State for a period exceeding 30 days) and a residence card (which allows a foreigner to stay legally in Italy);

An extra Schengen person in order to entry the Italian territory, need to show at the border-crossing point a valid passport or any other document (eg identity card) and financial funds in relation to the stay in Italy, and visa if required. It is important not being considered as dangerous individual.

INVESTMENT PROPERTY ITALY: useful tips to invest today in real estate


Given the complexity of the purchase of a property in Italy, there are many important aspects to check under the technical and legal aspects.

Make sure of the regularity of the building and that the owner has the building permit and the certificate of habitability.

If the building was orginally built illegally, it necessary to ensure that the owner has made application for the building amnesty and that he is possession of the related document issued by the Municipality. Without this document the notary not only will refuse to proceed with the deed, but, also the new owner would risk being called to answer for a criminal offense committed by others.

Verify that there are no mortgages, namely, that the owner has not incurred debts offering as collateral his apartment. In this sense, it will be useful to carry out a mortgage title search at the land register.

Make sure the seller has the right to sell. For example, if he is not the only owner then everyone must agree on the sell.

There is also another aspect to consider: the history of the flat, particularly in cases where it is received by the seller by inheritance or donation.

In consideration of all Italian bureaucratic procedures and in case of a property purchase in Italy, it is always advisable to ask for a professionals experts advice, such as lawyers and / or consultants, which can provide assistance at any stage of the sale, which will lead successfully to the final deed avoiding the potential risks to which you may incur.

For more information: goo.gl/bZoA0f

E-mail: info@arnonesicomo.com

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#- Liguria #Puglia #Sardinia #Lombardy #Sicily #Umbria #Piedmont #Investmentpropertiitaly
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