5 Oct 2014

Legal aid in Italy

Nicola Canestrini

In Italy legal aid depends on income of the applicant (and of her/his cohabiting relatives if he request regards a criminal court proceeding): more specifically, under italian law legal aid is granted to everybody, citizen and non citizen, but only in litigation and only to those who are considered indigent.

If the applicant lives alone, the income must not exceed approximately € 11.530 (updated august, 2015, adjusted every two years) in the previous year; if the request regards a criminal trial, the income that has to be considered is increased by approximately Euro 1.000 for each cohabiting relative. For example, if the family is formed of two persons, the total income of the applicant and his cohabiting relatives must not exceed € 12.400 (11.530 + 1.000); if the family is formed of three persons, the total income must not exceed € 13.000 (11.530 + 1.000 + 1.000), etc.

Obviously that means that in Italy legal aid is granted to a very small number of persons and that most of them have to pay thier attorney fees by there own.

If admitted, the applicant does not have to pay any sum to the lawyer, who can be chosen by the applicant; legal aid fees are directly paid by the state to the appointed lawyer, who has to be filed (even) as legal aid lawyer; the fees are severely  reduced by law provisions and practice.

Foreigners have to declare (and prove) their income in the home country.

INTRODUCTION 

Section 24(3) of the Italian Constitution guarantees the fundamental right to proper representation in court.

This protection is an extension of the fundamental right of every person to have access to the courts to initiate legal proceedings to protect his or her rights.

In 2001, the new legal aid system became applicable to all litigation matters, including civil and administrative law cases.

The current legal aid system is available in all phases of litigation and before any court.

Legal aid is available only in litigation.

Furthermore, it is available to Italian, non-Italian citizens, and stateless individuals who satisfy specific objective requirements of the law.

In criminal cases legal aid is available to non-citizens regardless of whether they are regularly present in Italy; in civil and administrative cases residency in the country is required.

In criminal cases, applications for legal aid are addressed to the court before which the case is pending. In all other cases the request is addressed to the Bar, specifically to the Council or governing body of the bar of the district where the competent court is located.

Once granted legal aid, the beneficiary can appoint the attorney of his or her choice, with one limitation: the attorney must have registered for legal aid purposes with the Court of Appeals in the district in which the court hearing the case is located. Registration is conditional upon meeting certain requirements including membership of the bar for at least two years.

The fees paid to the attorney providing legal aid are determined by a ruling of the court that decided the case. Such fees may not exceed the average of those set by ministerial decree for the type of work done, reduced by 33% by law (and even more in practice).

In civil, administrative and tax law proceedings if the legal aid beneficiary wins the case, the court may order the other party to refund the state for the fees paid to the attorney representing the indigent party.

 

***

MORE INFORMATION

1) What is legal aid?
It is a service which allows everyone to be assisted by a lawyer or by an expert witness free of any legal fees or costs.

2) In what trials is legal aid granted?
In all criminal, civil, administrative, accounting or fiscal proceedings, "voluntary jurisdiction" and whenever the presence of a lawyer or expert witness is required by law.

Legal aid is granted for all grades or stages of the trial including all further connected incidental and contingent proceedings.

3) Before which Courts is legal aid granted?
Before Tribunals, Courts of Appeal, the Supreme Court, surveillance courts and judges, Regional Administrative Tribunals, Judicial Review Committees, Provincial and Regional Fiscal Commissions, and the State Auditors' Court.

 

SUBJECTIVE CONDITIONS

4) Who is entitled to legal aid?
Subjective conditions for entitlement are:

a) Income
Those considered indigent when applying for legal aid and who remain so throughout the proceedings.

If you live alone, your income must not exceed approximately Euro 11.530 (adjusted every two years). All income earned within the last year and subject to income tax, like wages, pensions, fees, etc. is calculated. Any income not subject to income tax such as invalidity allowance or war pension is also assessed.

If you live with your family, your income is added to the income of your spouse and other cohabiting relatives. If you are in a legal action against your family, only your own income is considered for the purposes of the law.

In criminal trials, the income limit is increased by approximately Euro 1.000 for each cohabiting relative. For example, if the family is formed of two persons, the total income must not exceed 11.530 + 1.000; if the family is formed of three persons, the total income must not exceed 11.530 + 1.000 + 1.000, etc.

b) Citizenship
Before Criminal Courts: any Italian or foreign citizen, including minors, or stateless person resident in Italy. Before all other Courts: any Italian citizen or foreign citizen (if lawfully resident in Italy), stateless person (even not resident in Italy), or non-profit societies or associations not running a business.

c) Role within the proceedings
Before Criminal Courts: any person who is under investigation, a defendant, a sentenced person, or an injured party planning to be plaintiff in a subsequent trial, or persons liable for damages and civilly accountable for any fine. 
Before all other Courts: any party in a case or willing to be plaintiff and not already sentenced in a preceding trial (in which legal aid was granted), except for a suit for damages in a criminal trial

d) Exclusions
State funded legal aid is not granted:
Before Criminal Courts: for any person who is under investigation, defendant or person sentenced for tax evasion or any person defended by more than one lawyer.
Before other Courts: for any person whose claim is manifestly unfounded, or any party in a proceeding for a third party's debt assignment, whenever the assignment is not the payment for pre-existing debts.


APPLICATION FOR LEGAL AID

5) Who can sign the application?
Only you, the applicant, under penalty of rejection. Your signature must be certified by your lawyer, or by the Official who receives the application. Oral applications are not admissible even during the hearing.

6) Who can file the application?
You, or your lawyer, by registered mail.

7) When is the application filed?
Before or during the trial, but its effects start from the time the application is presented.

8) Where is the application filed?
Before Criminal Courts: to the Justice's Record office, or to the judge of the hearing; to the prison director if you are in prison or to a Police Officer if you are under detention at home or in hospital. 
Before other Courts: to the Bar Association

9) What do you write in the application?
The application form must include: the request for legal aid, the registered number of the trial, your personal data (name, family name, place and date of birth, residence) and Italian tax code and those of your cohabiting relatives. You must declare under your own liability, that you are in the economic situation required by law to be eligible for legal aid, specifying your income. You must also undertake to give notice of any variation in income after the legal aid application is filed. The application shall be rejected in default of any of the above mentioned items.

Non European Union citizens must also declare their incomes abroad.

You must sign the application form and your signature must be certified by your lawyer or by the Official receiving the legal aid application.

Before other Courts: the facts and reasons of the case must be declared together with the relevant evidence, in order to allow an assessment of the grounds of the action.

10) Which documents must be attached?
None for Italian and EU citizens. Citizens not belonging to non EU Countries must attach a certification from their Consulate to confirm the truth of their income declaration.

Self-certification is admitted only when documentary evidence cannot be provided.

Citizens not belonging to EU Countries sentenced or under arrest are entitled to produce the necessary certification from their Consulate within 20 days, also through their lawyer or a relative.

After filing the application, the judge, or the Bar Association can ask you to give written evidence of the truth of your declaration, or, when impossible, by further self-certification.

11) How long does it take to decide on admission?
Before Criminal Courts: the decision is taken immediately if the application is filed at the hearing, or otherwise within ten days of filing the application. Delay in deciding on the application entails the absolute nullity of all subsequent measures.
Before other Courts: within ten days of filing the application.

CHOOSING A LAWYER

12) How do you choose a lawyer?
Only one lawyer can be appointed and the lawyer appointed must be a member of the Bar Association of the Region where the trial is taking place. This lawyer must be on the special list of legal aid lawyers. This list is available at the local Bar Association.

 

COSTS

13) What do you have to pay?
Nothing. All costs are paid by the State, so you don’t have to pay either your appointed lawyer or your expert witnesses. Lawyers or expert witnesses who ask for advance payment of their fees incur severe disciplinary sanctions.

14) What happens if you are granted legal aid by mistake?
You must refund the State all advance payments and pay for all fees and legal costs.

15) What happens if you give false information?
Persons granted legal aid can be checked by Excise Officers, and also by bank investigations.
Perjury or omission in the declaration of income and failure to notify increases in income declared are subject to a prison sentence from 1 year to 6 years and 8 months and a fine from Euro 309,87 to Euro 1549,37. In addition, all sums paid by the State for legal aid must be refunded.

Please refer also to the slides of the Madrid conference 2015 about legal aid: http://www.slideshare.net/nicolacanestrini/legal-aid-aed-madrid 

 Final Note:
This information is provided by the Italian Association of democratic lawyers (www.giuristidemocratici.i); translation by Anne Collins and Gianfelice Corsini; it gives you an idea of the Italian law on legal aid and an indication of whether you are eligible. To apply for legal aid and avoid sanctions you are advised tocontact a lawyer or the local Bar Association.


Please note also that this document could be out of date and that there exist significant problems with applying non-Italian terminology and concepts of law and justice to the Italian justice system.

Recent publications

Interpol: a weapon against Human Rights defenders?

Established 1956 in Vienna, the INTERNATIONAL CRIMINAL POLICE ORGANIZATION - INTERPOL enables police in around 190 member countries to work together "to fight international crime": more in detail, its aim is to facilitate international police cooperation even where diplomatic relations do not exist between particular countries [1].

Extradition from Italy

In general, extradition is the process whereby one nation or state (the requested state) surrenders a suspected or convicted criminal to another nation or state (the requesting state); hereinafter, for the purposes of this introduction to the extradition rules from Italy, only the the extradition* from Italy to a foreign country* will be considered.

Client - Attorney confidentiality in Italy: core value of democracy or just window dressing ?

Confidentiality is recognised as essential for the proper administration of justice, access to justice and the right to a fair trial, as required under the European Convention of Human Rights, inter alia, in the CCBE Charter of Core Principles of the European legal profession of 2006 (principle 6), in the Code of conduct for european lawyers of 1988 (sub 2.3), in the Recommendation Rec(2000)21 of the Committee of Ministers to member states on the freedom of exercise of the profession of lawyer of 2000 (principle I.6), European Parliament resolution on the legal professions and the general interest in the functioning of legal systems of 2006 (whereas E and H), and in the United Nations Basic Principles on the Role of Lawyers of 1990 (principle 8 and 22).

Criminal records in Italy

There are essentially 6 main kinds of records in Italy:

Treatment of classified information before the ECJ

In the post 9/11 context of global terrorism and global counter-terrorism, the question of secrecy, usually grounded in national security-related concerns, has become one of the most interesting legal issues.In the wake of an increasingly transnational terrorism phenomenon, the balancing of security, secrecy and fundamental procedural rights represents an increasing challenge for both the Executive and the judicial authorities.