Who has been arrested in Italy in an extradition or European arrest warrant proceeding has the right to be defended by a lawyer of his/her choice; if no attorney is retained by the arrested person or close relatives, a court appointed lawyer, who rarely has international criminal cooperation experience or even language skills, will assume the defense. No self defense is allowed in extradition or EAW proceedings. Please note that the court appointed lawyer has to be paid unless the conditions for Italian legal aid are met (means test applies, since the annual income has to lower than 11.400 approx.).
How to appoint a defense attorney in extradition cases?
A defense attorney of own choice has to be appointed with a formal declaration of the defendant during the arrest, or hearing at court, or in jail ("ufficio matricola") or with a written power of attorney; close relatives can appoint a lawyer as well, but the family member who signs the power of attorney has to give evidence of the kinship with the defendant (marriage certificate, ..).
How to choose an Italian extradition lawyer?
Under Italian rules, there are no formal lists or verified titles: even the lists of consulates often do only collect defense attorneys who may speak a foreign language, but without any assessment of competence.
Since processional misconduct of the appointed lawyer do irreparably impair the rights of the defendant it is strongly advisable to check che competence of the possibile defense attorney: Italian ethic rules do not permit to list the names of clients, but it could be a good start
- checking the lawyer's bio,
- the memberships of international criminal lawyers associations,
- the publications in the specific field of extradition or European arrest warrant,
- conferences held as keynote speaker or lectures held about extradition or European arrest warrant,
- LinkedIn profile,
- famous cases successfully tried, or ..
- simply with a Google search, verifying specific competences in international criminal cooperation.
Appointing a defense lawyer who has no experience in extradition cases or European arrest warrant cases can be very risky: a nice website or great ads .. are not enough to win an extradition case or a European Arrest warrant case!
Even if Italian ethic rules for lawyers say that a lawyer should not not accept cases without adequate competence, in Italy there is no specialisation in international criminal cooperation: it is therefore advisable for the client to carry out a rigorous check, also (but not only) by addressing the issue of competence with the lawyer during the first interview.
It should be noted that the lawyer's inexperience and errors cannot constitute grounds for overturning an unfavourable decision: the case law states that it is "onus on the defendant to choose a professionally valid lawyer and to supervise the exact observance of the assignment given" (among many others, Italian Supreme Court, judgement 20665/2012). The interpretation may be reconsidered in international criminal cooperation cases, but remedies for a missed deadline or another professional misconduct are really hard to obtain (here why).
The informative interview: a good start in an extradition or European arrest warrant defense
Fundamental to the fiduciary relationship is the (first) personal contact with the lawyer: during the first interview (which may be chargeable, as should be made clear) the client can assess competence and trustfulness. The first interview is obviously covered by the attorney-client privilege as well, and therefore the relevant facts should be disclosed.
The lawyer will give some general information, based on the facts disclosed by the client. Aspects relating to legal costs and risks associated with court proceedings have to be discussed.
Legal fees should not be the sole element in choosing a lawyer: on the contrary, an estimate that is much lower than that of other lawyers may be an indication of a lack of seriousness (absence of services, lack of updating literature, absence of software that is now indispensable for practising the profession, ..). If there are no particular reasons for urgency, it may be a good practice to contact several lawyers.
Pursuant to professional law the defense attorney has to disclose to the client the level of complexity of the case, providing all useful information on the conceivable burdens from the time of conferment to the conclusion of the assignment; the defense attorney is also required to disclose in writing the cost estimate. Furthermore, the lawyer is required to inform the client of the characteristics and importance of the litigation, the defies strategy, specifying the initiatives and possible solutions (and risks).
From the first contact and the way in which it is conducted (e.g. completeness of information, competence, strategy, but also boundary factors: presence or absence of a secretary, courtesy, waiting time, dedicated time, language skills ..) the client may draw important conclusions.
Needless to say that the promise of victory or - worse - the boasting of acquaintances with judges, opposing lawyers ... are indicators of very low professionalism (in addition to being illegal).
Be very careful in signing blank sheets of paper or multiple unaddressed mandates: the signature is, however, a very important act. If one or more blank signatures are unavoidable, at least a written receipt with purpose of the signature should be issued by the lawyer.
"Double defense" in Extradition and EAW proceedings
A lawyer in requesting State in extradition proceedings or issuing State in case of European Arrest warrants proceeding should be appointed (so called "double defense" or "dual legal representation"). That's why the memberships in international criminal cooperation associations (like Fair trials International, Delf, European Criminal Bar association, ..) are important.
Empowering more than one Italian defense attorney is rarely a good idea, but it could be appropriate in particular circumstances such as truly complex cases (and after prior consultation with the leading lawyer).
Client attorney relationship in extradition cases or European arrest warrant cases (which may last months!) is difficult to standardise, so here are some general indications:
- client should not hand over original documents without a receipt in return, only provide photocopies;
- Italian courts usually don't accept documents in foreign languages, so translation has to be considered;
- client should answer promptly to the lawyer's requests: the delay in responding to the lawyer's requests may seriously jeopardise the outcome of the extradition or EAW case;
- client should communicate prolonged absences and/or change of contact details (email, mobile phone, address, ..);
- client should always request copy of the case file and follow the progress of the case through regular interviews, preferably also through participation in his/her hearings: if something is not clear, client should simply ask;
- it is a sign of the utmost caution (and mistrust) not to receive a full copy of case file and related documents, which can in any case also be requested directly by the defendant in court;
- an extradition or European arrest warrant case has 2 instances: the Court of appeal acting as first instance judge and the Italian Supreme Court as appellate judge. The European Court of Human Rights is not a 'third instance' and can only be called upon in cases of violation of fundamental rights (within 4 months of the last decision). The Court of Justice of European Union can be involved only by the national court, not directly by the parties.
How can a defence attorney be replaced?
There are many reasons why the client revokes the defence lawyer's mandate: some are legitimate, others less so, but the client ... is (almost) always right!
Once the decision has been taken, the defense attorney has to be informed; the lawyer will promptly comunicate deadlines or hearings and hand out the case file with all the documents and information necessary for the continuation of the defence.
Changing lawyer cannot and must not be a way to avoid paying what is due: but in the event of a dispute as to the amount of the fee still due a subproceeding will be opened that begins with a request for intervention to the competent Bar Association.
If there is no longer trust in the lawyer, the sooner one changes, the better.
In criminal proceedings, if the revocation is not accompanied by a new power of attorney, a the court will appoint a new court appointed lawyer.