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purpose to ascertain in which cases and at which conditions the starting
of a procedure of international request demand, whose aim is the execution
of an act of foreign factorizing, the law vests the investigated subject
with a right to be noticed at the right time, it is useful to detect which
discipline of rules can be applied concretely. The rule regime in the matter
of international requests is generally outlined by article 696 c.c.p. which,
according to art. 10 of the Constitution. reproduces the international
law prevailing over the internal right principle, pointing out as the main
rule that of the international conventions and generally of the international
law on force in the Italian State. So the provision of law of the Italian
code of crime procedure has only a subsidiary rôle, about this matter.
In the complex and changing general view of the international sources concerning
international requests, the European Convention About Crime Matter subscribed
in Strasbourg on April 20th 1959 and ratified by most of the countries
of the continent, including Italy Switzerland and Great Britain, is surely
of main importance. At art. 3 this Convention states the locus regit actum
principle, in force of which the validity verification of the investigating
acts carried out abroad and their utilisation must be examined thoroughly
according to the polity of the State where such acts have been carried
out. So the existence of a right of being noticed in the case of a require,
whose aim is a factorizing process act, must be evaluated according to
the internal polity of the required State.
Switzerland The international request matter is completely and deeply disciplined by the Swiss right by the means of a Federal Law of 1981 (LAIMP Federal law concerning crime matter international aid). In the section concerning the discipline of the adverse remedy to the Canton authorities decision which arises from of a require petition, art. 80 h points out, among the subjects legitimised to adverse remedy to such decisions, those who are “personally and directly affected by a judicial aid measure “ and that have “an interest which merits protection when repealing or modifying the measure “; furthermore art. 80 k points out the beginning of the stated term to make a petition (30 days for the final decision, 10 days for an incidental decision) starting from the day the involved subject has been noticed on write of the decision of the competent authority; finally, art.80 l, disposes the proceeding stay at the remedy act. Nevertheless it must be specified that, according to art. 80 m, all disposals of the execution authority and remedy decision are to be noticed only to whom are resident or have taken up residence in Switzerland. So stated, it only remains to verify if the owner of properties or documents consigned care of thirds, for which it is petitioned a require in Switzerland has or not the right to be noticed about the request ahead, before being it executed, so giving the chance of stay the development of the require by the means of impeachment. The LAIMP devotes to this particular case art. 80 n, vesting the documents holder with “the right to advise his principal about the being of a petition and all facts related “, save the competent authority having, exceptionally, explicitly forbid it. It's evident how this norm suits specially the existing relationship between a legal professional, a bank, a financial company or a trust company and their customer who has, so, the right to be noticed about the procedure ahead, on the basis of the conferred commission . All ways, it must be deemed opportune, in a preventive way, the drawing up of an on write instruction delivered to one's own mandate holder to obtain his engagement so to notice immediately the customer or his attorney, care of whom he has taken up residence in Switzerland, any judicial decision concerning a professional, banking or financial relationship, requiring the transmission of a copy of the applied disposals. The possible prohibition, stated at art. 80 n LAIMP, the required authority can, in case, oppose to the mandate holder right to notice his principal can arise from of a requiring authority petition or it can depend on an one's own authority evaluation of the same Swiss authority. In any case it must be alleged, time restricted and explicitly noticed (that means by an on write act) to the documents consignee, care of factorizing must be executed. The terms to make a petition start naturally under the notice date to whom the law vests with the right, so that the required authority cannot, being on force the prohibition, take measures that can bring an irreparable damage as the immediate delivery of the acts to the requiring authority. At this purpose it must be pointed out the fact that, starting from April 1988, the Swiss authorities have compelled the bank institutions to a general prohibition of noticing their own customers the execution of require procedures concerning drug commerce and recycling. Specially, it must be underlined that the recycling crime could be used seizing the opportunity to extend prohibition of notice to the involved subjects, also relating with investigations effectively aimed to persecute other kind of crimes. Great Britain The right to impugn the decisions
concerning the require matter and following the right to be noticed when
commencing such procedure seems to be less evident in the Anglo-Saxon,
lacking a special discipline of this matter.
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This way it can be contested, about form and merits, the validity
of the act, and in case of a positive result, it will be obtained the bar
of the delivery of the object of the seizure to the requiring authority.
It must be added that, recently, the member states of the Council of Europe
have subscribed a convention specially concerning the matter of the international
aid in the proceedings acts of search, seizure and confiscation (Convention
on laundering, search, seizure and confiscation of proceeds from crime,
Strasbourg, 8/11/90). Art. 5 this convention compels the subscribing
states to adopt legal measure needed to ensure the subjects affected by
the provisions object of the require an effective tutelage. Related to
this disposal is the acknowledgement of the citizen right, even if resident
abroad, to be noticed of the measure ahead in the required country;
the notice must contain, beside the title of the proceeding, the indication
of the allowed legal remedies (art. 21).
Defense right On the basis of the principle of the private international law and beside the right application of the foreign norms which regulate the incorporation of the act object of the require ahead, it must be considered, to verify the employability of the collected documents, also the complying with the principles of public policy which regulate the Italian polity (art. 16 L. 218/95). This way, if the norms of the polity of the requiring country would not be able to ensure the tutelage of the unrenounceable principles of the internal law, the norms of the requiring country will prevail again imposing the complying of special proceedings. Following the new code of crime procedure coming into force, thanks to the call therein at art. 729 c.c.p. (employability of evidences), doctrine and jurisprudence could extend the concept of public policy also to the complying of the defense rights during the evidences assumption proceedings or preliminary acts having evidence value (see Court of Milan, Ord. 13/10/1993, edited by Giust.Pen.,1994, III, 336; Cost. Court, sent.25/7/98, in Dir. pen. proc., 1995,1396). So, independently from which is the foreseen regime by the polity of the required country, it is possible to assert that, to make the seizure not to be declared void, it must be noticed the lodge of the minutes of the carried out acts, according to art. 366 c.c.p., to the investigated subject's attorney. Nevertheless the appliance of this discipline to requires creates two kind of problems: first, being not foreseen the counsel right to be previously noticed, this notice is destined to reach the involved subject only when the act has been already executed; if the object of the enquire concerns documents, specially in banks factorizing process, and those documents do not belong to the investigated subject or do not result entitled at his name, the right to be noticed about the lodge is deemed not requirable by the prevailing jurisprudence (see Court of Cassation , section I, 16/10/92, n.3272). Special purpose principle The Swiss polity is very clear about the prohibition to the enquiring country of the employability of the transmitted acts to persecute facts other than those that have alleged the requirement. The prohibition, that expresses the so called special purpose principle, has been explicated therein at a reserve inserted in, in 1996, by the Swiss Government when ratifying the European Convention about legal aid in crime matter which reproduces substantially the text of art. 67 LAIMP. The condition is absolute if regarding crimes for which it is ruled out any aid (i.e. not nasty fiscal crimes), while it is admitted the employability of the investigating acts to persecute crimes that constitute different juridical kind of the material cases the require has been demanded for or to extend investigations to other subjects deemed accomplices of the first investigated subject. It keeps on excluding, on the other hand, the employability of the acts object of the enquire within proceedings related to facts at all independent from those the same require has been demanded for. At art. 729 c.c.p. there in at the first paragraph it is imposed to the Italian Judicial authority the complying of the stated conditions about the employability of the acts that the foreign state have been demanded for, the reserve stated by Switzerland becoming this manner a legally binding prohibition for the Italian state. The existing of the same explicit condition to the international requires concession cannot be asserted when concerning the English polity. Nevertheless it can be deemed that the principle of the special purpose must be deemed as a generally applied principle in international law and so it can found application even if not specifically foreseen. The same Convention on laundering, search, seizure, above mentioned, acknowledges, among others, ex art 321 I c., the general validity of this principle. Anyway, the English internal procedure in this matter decrees the obligation for the requiring authority to point out precisely and detailed the full particulars of the investigated subjects the act is required for, the type of crime it is being prosecuted, to avoid the utilization of the collected material for proceedings at all independent from the first one. Akin assurances are stated quite detailed there in at art. 31 of the Convention above mentioned.
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