In brief. Mutual legal assistance (MLA) is the mechanism by which one State asks another to carry out investigative or evidentiary acts on its territory — hearing witnesses, seizing documents, freezing assets, serving notices. In Italy the regime is set out in artt. 723-729-quinquies of the Code of Criminal Procedure (c.p.p.), supplemented by multilateral conventions and bilateral treaties. The traditional vehicle is the rogatory letter (rogatoria). MLA is slower and more formal than the EU’s European Investigation Order, but it remains essential whenever evidence sits outside the EU. For the defence, MLA is both a risk — incoming requests that build a case against the client — and an opportunity to gather exculpatory evidence abroad.

Mutual legal assistance (assistenza giudiziaria in materia penale) is cooperation between judicial authorities of different States for the purpose of a criminal proceeding. It covers the gathering of evidence, the service of procedural documents, searches and seizures, the freezing and confiscation of assets, the temporary transfer of detained persons to give evidence, and the exchange of criminal records.

MLA is distinct from extradition and surrender: it concerns evidence and procedural acts, not the handover of a person. It is also distinct, within the EU, from the European Investigation Order (EIO), which has largely replaced rogatory letters between Member States. MLA in the classic sense now governs cooperation principally with non-EU States.

The domestic rules are in Book XI of the c.p.p., artt. 696-746-ter, with mutual assistance proper in artt. 723-729-quinquies c.p.p. (as rewritten by Legislative Decree 149/2017):

  • art. 696 c.p.p. — primacy of EU law and international conventions, with the Code applying only where they are silent;
  • artt. 723-726-sexies c.p.p. — passive requests: requests from a foreign authority addressed to Italy, forwarded by the Minister of Justice (who may refuse in the cases provided by law) and executed under Italian law by the public prosecutor at the district-capital court or, for acts reserved to a judge, by the preliminary-investigations judge (art. 724);
  • art. 727 c.p.p. — active requests: rogatory letters issued by Italian authorities to foreign States;
  • art. 729 c.p.p. — the rule on usability of evidence: the Italian court is bound by the conditions on use set by the requested State; where that State executed the request in a manner different from the one indicated, the acts are unusable only where the law so provides; statements about the content of unusable acts can never be used (and art. 191 c.p.p. on prohibited evidence still applies).

These provisions are layered on top of the European Convention on Mutual Assistance in Criminal Matters (Strasbourg, 1959) and its protocols, the 2000 EU MLA Convention, the UN Convention against Transnational Organized Crime (Palermo, 2000) and the UN Convention against Corruption (Merida, 2003), plus bilateral treaties such as the Italy-US MLAT.

Rogatory letters in practice

A rogatory letter (rogatoria) is the formal request through which one State asks another to perform a specific act. The classic flow is:

  1. the requesting authority drafts the request, specifying the offence, the legal basis, the acts sought and any conditions (for example, the presence of a defence lawyer);
  2. the request is transmitted — historically through diplomatic or central-authority channels (the Ministry of Justice), increasingly through direct judicial channels where a convention allows;
  3. the requested State executes the act according to its own procedural law (locus regit actum), while honouring, where possible, specific formalities requested by the requesting State so the evidence is usable back home;
  4. the results are transmitted back to the requesting authority.

Rogatory letters are slow — months, sometimes more — and formality-sensitive: a defect in transmission, in the description of the offence, or in the conditions of execution can, in the cases provided by law, render the resulting evidence unusable under art. 729 c.p.p.

Cross-border evidence gathering

MLA is the engine of modern economic-crime and organised-crime investigations, which routinely span several jurisdictions. Typical measures requested to or from Italy include:

  • bank and financial records, increasingly central in money-laundering and corruption cases;
  • search and seizure of documents and electronic data;
  • witness and suspect examinations, sometimes by videoconference;
  • freezing and confiscation of assets located abroad;
  • service of summonses and judgments on persons resident abroad.

Each measure carries conditions. Where Italy requests evidence, it must specify the formalities needed for the evidence to be admissible in the Italian trial; where Italy executes a foreign request, it must respect Italian fundamental guarantees, including those on defence rights and on offences that are political or contrary to public order (grounds to refuse assistance).

The role of the defence

MLA is often treated as a matter purely between States, but the defence has a real and active role, on both sides of the request.

  • Scrutinising incoming evidence. When the prosecution relies on evidence gathered abroad, the defence checks the chain: was there a valid legal basis, were the conditions of the rogatory respected, was the defence allowed to participate where required? A breach can trigger unusability under art. 729 c.p.p.
  • Driving exculpatory requests. The defence can press the Italian authority to issue rogatory letters or EIOs to obtain exculpatory evidence located abroad — bank trails, witness statements, foreign court records.
  • Protecting the client in passive requests. Where a foreign State seeks evidence about the client from Italy, the defence can raise grounds for refusal and ensure procedural guarantees are observed.
  • Coordinating across jurisdictions. Because the act is executed under the law of the requested State, effective defence requires local counsel in that State working in step with the Italian team.

How ILA handles MLA matters

ILA acts on the full spectrum of mutual legal assistance: defending clients whose cases are built on foreign-gathered evidence, challenging the usability of that evidence under art. 729 c.p.p., and proactively driving rogatory letters and EIOs to secure exculpatory material abroad. With Italian offices in Naples, Milan and Rome and an international network of correspondents, the firm coordinates the Italian procedural strategy with action on the ground in the requested State.

FAQ

What is the difference between a rogatory letter and a European Investigation Order? A rogatory letter is the traditional MLA tool, used mainly with non-EU States and routed through central or diplomatic channels — slower and more formal. The European Investigation Order (Directive 2014/41/EU) is a faster, mutual-recognition instrument used between EU Member States and has largely replaced rogatory letters within the EU.

Can evidence collected abroad be used against me in an Italian trial? It can, but within limits. Under art. 729 c.p.p. the court must respect the conditions on use set by the requested State, and evidence is unusable in the cases provided by law (including art. 191 c.p.p. on prohibited evidence). Reviewing the legality of the cooperation is a core defence task.

Can my defence obtain evidence located in another country? Yes. The defence can push the Italian judicial authority to issue a rogatory letter or, within the EU, a European Investigation Order to obtain exculpatory evidence abroad — financial records, witness statements, foreign court documents — coordinated with local counsel.

For the wider framework of cross-border cooperation and the EU instruments that sit alongside MLA, see our pillar guide to judicial cooperation, or contact the firm via the Contact page.