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Professional misconduct of defense attorney in international criminal cooperation: remedies?

31 March 2023, Nicola Canestrini

International criminal cooperation is a complex matter, and – unfortunately – often foreign defendants simply appoint .. inexperienced lawyers: that's why the choice of an experienced Italian extradition  defence attorney is very important. If in doubt, please see  how to choose an Italian extradition defence lawyer  in Italian international criminal cooperation procedures such EPPO, extradition or European arrest warrant proceedings.

Inexperience and lack of ethic by the appointed Italian trial attorney can easily lead to professional mistakes, and the question is if professional mistakes of defense attorney do irreparably impair the rights of the defendant.

As an example, most often mistakes consist in the fact that strict deadlines in criminal cooperation procedures are not met (for example: request for retrial of in absentia convictions, which has to be filed within 30 days from knowledge of the conviction!) , and thus the remedies are not available any more for the convicted defendant.

The short answer to the question if the client has to suffer the consequences of professional misconduct of the appointed criminal defense attorney in Italy is (regrettably) .. yes.

Arguing merits of the defense strategy is quite difficult and the burden of proof is very high for the (bad represented) client: but even in the easiest case of professional misconduct, which is missing a deadline, things gets complicated if the goal is not a compensation but being returned in the time set. 

Italian law permits in principle to ask for being returned within the time limit set, if the defendant can prove that he/she was unable to observe it due to fortuitous event (an event which cannot be foreseen) or force majeure (an event which can not be resisted); it should be highlighted that the request for return within the time limit shall be mandatory made within ten days from the day in which the fact constituting fortuitous event or force majeure ceased to exist (so form when the mistake has been discovered).

Italian case law and doctrine rule that the so called fortuitous event consists "in that unforeseen and unforeseeable event that is suddenly inserted into the action of the subject, and cannot in any way, not even by way of fault, be traced back to the psychic activity of the agent"; force majeure "postulates the existence of a vis maior cui resisti non potest, i.e., of an event resulting from nature or man's actions that cannot be foreseen, or which, even if foreseen, cannot be prevented".

Professional misconduct will usually fall under the definition of fortuitous event, but Italian case law affirms since decades that mistakes committed by the appointed defense counsel prejudice defendant’s rights, since the client always has the possibility – and thus: the duty! – to control counsel’s actions using ordinary diligence.

This interpretation obviously prevents the configurability of the so-called fortuitous event in relation to the professional errors of the lawyer: it has been stated that "the failure or inexact performance by the appointed lawyer of the assignment to file an appeal, for whatever cause attributable, are not suitable to realize the hypotheses of fortuitous case or force majeure - which legitimize the return within the time limit -, because they consist in a false representation of reality, which can be overcome by normal diligence and attention, and because a duty of the assisted person to supervise the exact compliance with the given assignment cannot be excluded, presumptively, in cases where the control over the defensional fulfillment is not prevented to the ordinary citizen by a complex regulatory framework" (Italian Supreme Court, judgment n. 3631/2016).

This interpretation should be reconsidered specifically when it comes to international criminal cooperation cases, at least if the defendant is detained and thus especially vulnerable.

Usually in such cases the defendant is

  • foreign national,
  • does not speak Italian language,
  • has no cultural familiarity for Italian national procedures,
  • is detained in a prison of another state than that of his nationality without knowledge of the language of the prison where he is held and
  • without the possibility of having any contact with anyone 

and thus in the absolute impossibility of exercising that "normal diligence and care" which jurisprudence requires from the client with regard to the appointed counsel of choice (for mistakes committed by court appointed lawyers  may be easier for the defendant to request to be restored in missed deadlines).

Therefore, one cannot agree with that part of the jurisprudence according to which the failure or inexact fulfillment by the appointed defense counsel of the assignment to bring an plea, "for whatever cause attributable" is not capable of realizing the hypothesis of fortuitous event or force majeure that legitimizes restitution within the time limit; because if it is true that, as has been said, it is up to the defendant to choose a professionally valid defense counsel and to supervise the exact observance of his/ her duties, but it cannot be reasonably expected that the defendant, in choosing the defense counsel, checks in advance (without, moreover, possessing the relevant cultural knowledge) his mastery of ordinary rules of law that should constitute the technical background of any person legitimized to the legal profession through passing the state exam.

It should then be noted, that, according to European Court of Human Right's jurisprudence, the national court has a duty to restore the defendant's fundamental procedural rights when defensive deficiencies are manifest and- as highlighted in this appeal - are brought to its attention (see judgments April 9, 1984, Goddi v. Italy; November 24, 1993, Imbrioscia v. Switzerland; April 27, 2006, Sannino v. Italy; Jan. 18, 2007, Hany v. Italy); the national court has mandatorily to apply and interpret the domestic rule in a manner consistent with the ECHR as interpreted  by the Court of Strasbourg.

Indeed, Strasbourg teaches that every criminal trial must be fair, and .. there can be no fair trial without the right to an effective defense.

The European Convention of Human rights guarantees not theoretical or illusory rights, but concrete and effective rights.

Even Italian jurisprudence preaches the need for defensive assistance, which has to be evidently effective: the Italian Constitutional Court emphasized the need for "technical assistance of a defense counsel, which is also - in a general way - an integral part of the right of defense at every stage and level of the proceedings" (judgment 113/20), or the Court of Cassazione in its most authoritative composition, which requires that "the effectiveness of the defense cannot therefore be reduced to a mere formal presence of a legal technician who (. .) is unable to adequately master the case material" (Sezioni Unite judgment 2016).

It should be noted that that the jurisprudence of the European Court of Human Rights, precisely in a case concerning Italy and the lack of assistance of a court appointed defender (!) has established that "the Convention seeks to guarantee not theoretical or illusory rights, but concrete and effective rights; this is particularly true of the rights of the defense, given the pre-eminent place occupied in a democratic society by the right to a trial quo, from which they derive. (...) Article 6 para. 3 (c) (art. 6-3-c) speaks of "assistance" and not of "appointment": the mere appointment of a lawyer does not guarantee effective assistance, since the lawyer appointed for the purpose of judicial assistance may die, become seriously ill, be prevented from acting for a prolonged period, or BREACHES HIS DUTIES" (European Court of Human Rights, ARTICO v. ITALY, 1980, § 34, emphasis always added).

The right of every accused to be effectively defended by counsel, in case of need also court appointed, is one of the fundamental elements of a fair trial (Poitrimol v. France, 1993, § 34, Series A no 277-A, and Demebukov v. Bulgaria, 2008 § 50).

Article 6 § 3 (c) ECHR does not specify the conditions for the exercise of the right it enshrines and thus leaves it up to the contracting States to choose the appropriate means to enable their judicial system to guarantee it, since the Court's task is to investigate whether the path they have followed meets the requirements of a fair trial. In this regard, it should not be forgotten that the Convention aims to "protect concrete and effective rights and not theoretical or illusory ones," and that the appointment of a defense counsel does not in itself ensure the effectiveness of the assistance that can be provided to the accused (EDU Court, Imbrioscia v. Switzerland, 1993, Series A no 275, § 38; quotation taken from court EDU, Salduz v. Turkey, Sept. 20, 2008, § 50 ff).

While it is true that the guarantees of Article 6 can be waived, it is still necessary that the waiver must be made of one's own free will, explicitly or tacitly, unequivocally expressed, and must be accompanied by minimum safeguards commensurate with its importance (Edu Court, Sejdovic v. Italy [GC], 2006, § 86; Dijkhuizen v. Netherlands, § 58, Hermi v. Italy [GC], 2006, § 74; Sejdovic v. Italy [GC], 2006, § 87), a waiver here evidently never made.

By way of comparison, the Supreme Court of the United States of America (Strickland v. Washington, 466 U.S. 668 (1984) on the subject of due process guaranteed by the Sixth Amendment overlapping with Art. 6 ECHR and Art. 24 and 111 of Italian Constitution has held that this implies a defendant's right to counsel who provides "reasonably effective assistance given the totality of the circumstances":, the defendant having to show, first, that counsel's performance (a) was deficient and, second, that the deficient performance has (b) prejudiced the defense so as to deprive the defendant of a fair trial:

(a) the proper standard for judging counsel's performance is that of reasonably effective assistance, considering all the circumstances of the proceedings. When a convicted defendant complains of ineffective assistance of counsel, he must show that his representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance must be highly deferential, and a fair evaluation of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of the challenged conduct of counsel, and to evaluate the conduct from the perspective of counsel at the time. The court must grant a strong presumption that the lawyer's conduct falls within the broad range of reasonable professional assistance. These standards need no special expansion to define the lawyer's duty to investigate, the duty at issue in this case;

(b) with regard to the necessary showing of prejudice, the correct standard requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court considering a claim of ineffectiveness must consider the totality of the evidence presented to the judge or jury.