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Criminal, banking and subjective defence investigations: how to collect sensitive information useful in court

We often hear about defensive, criminal, banking and subjective investigations, but in truth, very little is known about them. When it comes to investigations, the activities conducted by police forces and police headquarters immediately come to mind, but, in reality, defensive investigations in the area of white collar crime and cyber crime, go far beyond the public interest.

ILA’s lawyers are experts in criminal, banking and subjective defence investigations, specialising in the collection of sensitive information useful in court.

Civil and criminal proceedings, both in the preliminary investigation and execution phases, may in fact require, in the subjective interest of one or more individuals, an information and intelligence activity that presupposes the need to collect certain sensitive information on third parties who, on the contrary, do everything possible to keep it confidential or secret.

In order to provide a broader protection to his client, the lawyer, from the moment of the granting of the professional mandate, is entitled to carry out investigations in order to research and identify every possible element in favour of his client. This activity is carried out regularly, and in an proactive manner, by all the lawyers and professionals who collaborate with the International Lawyers Associates team.

Defence investigations: here are the cases in which they are indispensable

This activity of acquiring the secret information underlying the conduct of defensive, criminal, banking and subjective investigations may prove to be fundamental and unavoidable if one intends to take legal action.

Think of the case in which it is necessary to show evidence, prove a circumstance, unmask a malicious plan. It may also be the case that it is necessary to prove one’s case or even to know the actual asset status of a person or a company in order to – just to give one example – file an enforcement or debt collection case.

Many law firms find themselves in the position of entrusting criminal, banking and subjective defence investigations to third parties and, very often, they do so by turning to more or less serious private investigation agencies.

Perhaps they are not aware of the activity conducted by the law firm International Lawyers Associates, which operates with criteria of fairness, precision and legality that are unmatched elsewhere.

The team of this firm, in fact, personally manages the fact-finding investigations developed thanks to its completely in-house investigation department.

The latter consists of skilled professionals with decades of experience in the world’s leading companies in the investigative sector. No investigation is excluded from the work carried out by these professionals, who are also involved in investigations aimed at tracing people, assets, and assets with a worldwide reach, as they operate not only nationally and internationally, but across the globe.

How to meet the need for procedural timeliness and confidentiality in defence investigations

Given that the timeframes for carrying out defence, criminal, banking and subjective investigations are inevitably short, precisely in accordance with the defendant’s and/or the prosecution’s needs, it is easy to understand how it becomes imperative to carry out due defence investigations on time.

In this case, therefore, it is a duty to act with extreme timeliness, as well as, of course, with fairness, precision and politeness.

When carrying out defence investigations, account must be taken of the exquisitely forensic aspects to be analysed on a case-by-case basis, always adhering to the criteria of fairness, confidentiality and common sense required, particularly in the field of intelligence gathering. The fact that a lawyer may carry out defensive investigations with necessary supports from professionals in other disciplines such as forensic accountants or cyber crime experts, to search for and identify evidence in favour of his client, is expressly provided for in Article 327 bis of the Code of Criminal Procedure, introduced by Article 7 of Law No. 397/2000.

The manner in which the defence lawyer is required to carry out such investigations, on the other hand, is regulated by articles 391 bis to 391 decies of the Code of Criminal Procedure, constituting Title VI bis of Book V of the Code of Procedure. The lawyer’s ‘modus operandi’, in this specific context, is also the subject of the ‘Rules of Conduct of the Criminal Lawyer in Defence Investigations’ approved by the Union of Italian Criminal Chambers in 2007 and of Articles 14 and 52 of the Forensic Code of Ethics.

The investigations with which, as has been specified, Articles 391 bis and 391 ter of the Code of Criminal Procedure deal consist of three distinct modalities: a) the “interview” which must be informal, i.e. undocumented; b) the “statements” which must be in writing and signed by the witness to be accompanied by a report of receipt of the written document, drawn up by the defence counsel; c) the “information” which the defence counsel takes by means of a special report signed by him and the witness.

The undocumented interview with persons able to report useful information may be limited to acquiring information useful for investigative purposes; this informal approach is also permitted for investigators and technical consultants.

The written statement may be requested from potential witnesses, in which case the statement must be signed by the declarant and authenticated by the defence counsel or substitute. On this subject, the Supreme Court has repeatedly reiterated that: “On the subject of defence investigations, written statements taken by the defence counsel, pursuant to Article 391 bis, paragraph 2 of the Code of Criminal Procedure, are unusable without the analytical record of the warnings listed in paragraph 3 of the aforesaid article, which he is required to address to the declarant. (In the case in point, the Court held that the statements recorded with a mere summary reference to the warnings pursuant to Article 391 bis of the Code of Criminal Procedure were unusable)”. (Criminal Court of Cassation, judgment no. 51073/2016).

Potential witnesses may also render, to the defence counsel or his substitute, the so-called documented information (the relevant minutes must contain the warnings referred to in paragraph 3).

As is well known, in order not to condition the declarant, the person under investigation, the injured party and, after the criminal prosecution has been brought, other private parties may not attend the taking of such statements.

In general, special rules are laid down for listening to the person victimised by the offence, which are provided for by both the CNF and the Union of Italian Criminal Chambers. Both these bodies have established that: “In order to confer with, request written statements from or take information from the person offended by the offence, the defence counsel shall proceed by written invitation, after giving notice to the lawyer of the offended person himself, if he is known to exist. If the offended person is not assisted, the invitation shall indicate the opportunity for a lawyer to be consulted and to intervene in the act”, and again: “If the offended person is assisted by a defence counsel, the latter shall be given notice at least twenty-four hours in advance. If he is not assisted by a defence counsel, the invitation shall state that a defence counsel should nevertheless be consulted and intervene in the proceedings’.

These bodies also provide for special precautions in the case of the hearing of a minor. In this regard: ‘In the case of a minor, the invitation shall also be communicated to the person exercising parental authority, with the right to intervene in the proceedings’, and again: ‘In the case of a person under the age of 14, without prejudice to the foregoing provisions, for the taking of information or the request to make statements, the defence counsel may avail himself of the presence of an expert appointed for this purpose as defence counsel’.

It is also possible to interrogate the co-defendant or co-defendant, subject to notice to the defence counsel (if the defence counsel is not present, the case cannot proceed and an ex officio appointment is required). The detainee may also be heard subject to authorisation by the Judge, but the presence of the defence counsel is not required.

In conclusion, it is worth pointing out how, among the various activities that the defence lawyer may perform in the context of defence investigations are undoubtedly those provided for and regulated by Art. 391 quater and 391 sexies of the Code of Criminal Procedure. In the event of refusal by the P.A., the lawyer may apply to the public prosecutor, requesting the seizure of the documents. If the public prosecutor also decides not to order the seizure, the request must be forwarded to the judge for preliminary investigations for a ruling. Pursuant to Article 391 sexies of the Code of Criminal Procedure, then, the defence counsel may have access to public or private places, in order to inspect them or carry out various types of verifications.

How defensive investigations are carried out

Every single operation related to the proper conduct of defensive, criminal, banking and subjective investigations takes place after a dialogue and interface with the assisted person.

It is precisely by taking into account the needs that emerge at the outcome of this dialogue that the operational methods of concrete action aimed at obtaining the key information required are defined.

In order to carry out defence, criminal, banking and subjective investigations in a workmanlike, timely and effective manner, International Lawyers Associates operates by offering the following services.

Subjective, criminal and defence investigations

  • personal investigations;

tracing of missing persons;

  • wide-ranging personal investigations;

audits of satellite, GPS and computer communication systems.

In the field of banking investigations

  • world-wide banking investigations;
  • location research on national banking institutions and geo-localisation of positions;
  • credit management services;
  • research on domestic and foreign bad payer databases;
  • debtor tracing;
  • enquiries on local and national registrars;
  • in-depth analyses of Italian companies;
  • asset and heir search;
  • assets and heirs research;
  • worldwide credit recovery;
  • customised advice on how to protect or recover credit.

Defence investigations can really change the outcome of a case.

Within ILA’s legal staff we have specialised professionals, lawyers experienced in defensive, subjective and banking investigations.

We are fully aware of how such investigations can disrupt the outcome of a case. They can oten be determinative of victory or failure.

That is why it is vitally important to rely on experienced personnel, legitimised to work in the field and able to do so with honesty, competence, professionalism and timeliness.

In conclusion, it is absolutely essential to emphasise the cardinal principle of our legal system according to which the defence lawyer may never and under no circumstances ‘filter’ and modify what is found during the defence investigation carried out in order to take elements in favour of the client.

Thisnethical duty, however, unlike that of the Public Prosecutor who must include in his file all documentation of the investigative acts carried out, must be reconciled with the right granted to the lawyer to choose whether or not to use what is found during the investigation; he may decide whether to produce to the Judge the evidence gathered or he may choose not to do so if he considers such evidence not useful to the chosen line of defence.

In this way, the duty of loyalty is reconciled with the defendant’s institutional task and ethical duty to gather and find elements in defence of his client.