Avviso di garanzia: what it means and what to do in Italy

The prosecutor sends the notice, in the words of the current law, «to protect the right of defence»: whenever a step is due at which the defence lawyer is entitled to be present, the notice goes to the person under investigation and to the victim (art. 369 of the Code of Criminal Procedure, c.p.p.). This happens, for instance, before an interview or before an unrepeatable technical examination of people, objects or places that are bound to change (art. 360 c.p.p.).

One consequence is not obvious: not every suspect receives this notice. An investigation can run for a long time without such steps, and the person may learn about it only from the notice that the investigation has been closed. Even then, at the latest together with that notice, the prosecutor must tell them which court-appointed lawyer has been assigned to them and what their rights are (art. 369-bis c.p.p.).

Law no. 114 of 9 August 2024 partly rewrote art. 369 c.p.p. The notice must now contain a brief description of the facts, the provisions allegedly breached, the date and place of the facts and the invitation to appoint a lawyer of one’s choice. It also informs the person of the right to be told what has been entered in the register of criminal complaints, and of the option of restorative justice programmes.

The way it is delivered has changed too. Delivery by the police is allowed only in urgent situations where ordinary service is not possible, and must then protect the recipient’s privacy. Finally, the text of the notice may not be published until the preliminary investigation or the preliminary hearing is over (arts. 369(1-quinquies) and 114(2) c.p.p.).

The facts described, the provisions listed and the dates set out the first boundaries of the investigation: read them with your lawyer, because every later decision depends on them.

Receiving the notice does not mean being sent to trial: at the end of the investigation the prosecutor may ask for the case to be dismissed. The law protects this stage expressly. Being entered in the register of criminal complaints cannot, by itself, have adverse civil or administrative effects on the person concerned (art. 335-bis c.p.p.).

Public authorities, moreover, may not publicly describe a suspect or a defendant as guilty until guilt has been established by a final judgment or criminal conviction order. If they do, the person may ask for a correction, which must be made within forty-eight hours if the request is well founded (art. 2 of Legislative Decree no. 188 of 8 November 2021).

What remains to be checked, case by case, are the obligations that may arise from contracts, internal rules, company offices or professional rules: a check to make at once, before the news is shared with anyone.

Time limits run from the day the person’s name was entered in the register, not from the date of the notice. As a rule, the prosecutor must close the investigation within one year; the limit is six months for minor offences (contravvenzioni) and eighteen months for the serious offences listed in art. 407(2) c.p.p. (art. 405 c.p.p.). For complex investigations the judge may grant a single extension of up to six months (art. 406 c.p.p.), within an overall maximum of eighteen months (one year for minor offences), or two years for those serious offences (art. 407 c.p.p.).

Investigative steps taken after the deadline cannot be used (art. 407(3) c.p.p.). This is why the date of entry in the register matters: the suspect may ask the prosecutor’s office to disclose the entries concerning them, except for certain serious offences and unless secrecy is ordered, with reasons, for up to three months (art. 335 c.p.p.).

If the files show that the entry was delayed, the suspect may ask the judge to establish this and to backdate it. The request must be filed within twenty days of the moment the documents showing the delay became available, and the judge grants it when the delay is unequivocal and unjustified (art. 335-quater c.p.p.).

1. Keep the notice together with the envelope or the certificate of service: the date of delivery is needed to calculate the time limits.
2. Appoint a defence lawyer of your choice. Otherwise the person is assisted by a court-appointed lawyer, who must still be paid unless the conditions for state-funded legal aid are met (art. 369-bis c.p.p.).
3. Ask for disclosure of the register entries, to learn the date and the legal qualification of the facts.
4. Reconstruct the facts with your lawyer, gathering and ordering documents, messages and dates without altering them, and consider whether to carry out the defence’s own investigation.
5. Prepare for the announced step. Ahead of an unrepeatable technical examination you may appoint technical experts, who are entitled to take part and to make observations and reservations; before the expert is instructed, the suspect may also reserve the right to request the early taking of evidence before a judge, the incidente probatorio (art. 360 c.p.p.).

This is why, in our criminal defence work in Milan, we step in from the very first notices: checking charges, time limits and documents at once avoids choices that are hard to undo later.

The most common mistake is trying to «clear things up» alone. Contacting the victim, possible witnesses or other suspects about the facts, deleting messages or files, asking for agreed versions: such conduct can be read as a danger to the gathering or the genuineness of evidence, one of the grounds on which a judge may order precautionary measures (art. 274 c.p.p.).

Avoid also spontaneous statements to the police without a lawyer, comments on social media and messages to colleagues, partners or clients that have not been agreed with your lawyer. Silence, on the other hand, is no fault: the law rules out that refusing to make statements or to admit the charges can found that danger (art. 274(1)(a) c.p.p.).

When the facts concern a company’s business, an investigation into a person may also reach the company. Under Legislative Decree no. 231 of 2001, a company is liable for offences committed in its interest or to its advantage by those who manage or direct it, or by people under their supervision, if the offence is among those listed by that decree (art. 5 of Legislative Decree 231/2001).

In such cases the defence of the individual and that of the company must be coordinated from the outset, avoiding conflicts. The company takes part in the proceedings through its legal representative, unless that person is charged with the offence on which the company’s liability depends (art. 39 of Legislative Decree 231/2001): whoever is personally involved should not handle the company’s position alone as well.

Take the director of a Milan company who receives a notice on the eve of a technical examination of the company’s servers. Before discussing the merits, an IT expert must be appointed, someone must be designated to represent the company, automatic data deletion must be suspended and internal communications agreed – without touching anything that will be examined.

If the prosecutor needs to question the suspect, they send a summons that briefly states the facts and must be served at least three days in advance; if the person fails to appear without a legitimate reason, the prosecutor may have them brought in (art. 375 c.p.p.). Before the interview, the person is warned that what they say may be used against them and that they have the right to remain silent (art. 64 c.p.p.). The Constitutional Court has made clear that these warnings must be given even before the questions provided for by art. 21 of the implementing rules of the Code, which come before the interview proper (judgment no. 111 of 2023). Whether to answer or remain silent is a choice to prepare with your lawyer, after reading the documents available.

At the end of the investigation, unless they ask for dismissal, the prosecutor serves the notice of closure of the investigation and files the evidence. From then on there are twenty days to examine it, submit briefs and documents, file the defence’s investigation, ask for further investigative steps or ask to be questioned – in which case the prosecutor must do so (art. 415-bis c.p.p.). It is often the first time the evidence gathered can really be seen, and a concrete opportunity to obtain a dismissal or to plan the choice of procedure.