Italy - Witness interviews in internal investigations: the Italian perspective

Witness interviews in “ordinary” internal investigations conductedby in-house functions are not legally privileged in Italy. To benefit from legal privilege, entities must comply with the formalities governing defensive investigations under the Italian Code of Criminal Procedure ("ICCP").

The key role of the external defence counsel in conducting witness interviews

Under the ICCP, an external defence counsel must be appointed by the company to lead the interviews. Said counsel is empowered to gather information about suspected criminal offences committed against the company or by its employees and managers, even where no criminal proceedings are pending.

Efficacy and confidentiality of interviews led by the appointed defence counsel

Obtaining witness statements through a formally appointed external defence counsel in accordance with the ICCP formalities offers several key advantages:

• Reliability of the information: if witnesses decide to respond, they are obliged to tell the truth - providing false statements constitutes a criminal offence;

• Confidentiality and legal privilege: witnesses are prohibited from disclosing, including to the Public Prosecutor, the specific questions asked and answers given to the defence counsel;

• High probative value: in the event of criminal proceedings, witness statements collected in this manner carry the same evidentiary weight as those obtained by the Public Prosecutor.

Allowed interactions with witnesses and required formalities

In practice, witness statements may be obtained under the ICCP through:

1. An undocumented witness interview (useful, for example, for assessing whether the interviewee can provide relevant information);

2. A written statement from the witness; or

3. A documented witness interview.

In all cases, interviewees must receive a formal ­invitation with adequate prior notice. Before starting the interview, the defence counsel must provide the requisite statutory warnings, including the right to remain silent and potential criminal liability for false statements. For written statements and documented interviews, minutes and recordings are required to preserve authenticity.

Ordinarily, witnesses have no right to legal assistance during the interview; however, exceptions apply where the witness is involved in criminal proceedings as a suspect or victim. Additional requirements may arise in specific circumstances, such as the involvement of an interpreter or the assistance of psychologists when minors are heard. There is no obligation to notify a works council or other employee representative body prior to conducting the interview.

Conclusion

Under Italian law, it is advisable that witness interviews are conducted by an external  defence counsel in compliance with all ICCP formalities. Only then will the statements be reliable, protected from disclosure to the Public Prosecutor, and afforded full evidentiary weight in criminal proceedings.

Francesca Cannata
Matteo Nicolì