10.06.04
The right to legal defence
Free copy issued by Assocazione Giuristi Democratici
http://www.giuristidemocratici.it
Updated: october, 1st, 2003.
No copyright reserved.
FIRST OF ALL
The right to legal defence.
The Constitution of the Italian Republic Clause 24.
“Everyone is allowed to take legal action for the protection of her/his
rights and legitimate interests. Defence is an inviolable right at any
grade of the proceedings. The means of action and defence before all
Courts are guaranteed to the indigent by public institutions.The law
determines the conditions and legal means to remedy miscarriages of
justice”.
GENERAL INFORMATION
1) What is legal aid?
It is a service to allow 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 proceeding
and “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, 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 proceeding.
If you live alone, your income must not exceed ˆ9296,22 (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 ˆ1032,91 for each
cohabiting relative. For example, if the family is formed by two
persons, the total income must not exceed ˆ10329,13; if the family is
formed by three persons, the total income must not exceed ˆ11362,14,
etc.
b)Citizenship.
Before Criminal Courts: any Italian or foreign citizen, including
minors, or stateless person resident in Italy
Before the other Courts: any Italian citizen or foreign citizen (if
lawfully resident in Italy), stateless
person (even not resident in Italy), no-profit societies or associations
not running a business.
c)Role within the proceeding
Before Criminal Courts: any person who is under investigation,
defendant, sentenced person, or injured party planning to be plaintiff
in a subsequent trial, persons liable for damages and civilly
accountable for any fine.
Before the 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, under penalty of rejection. Your signature must be certified
by your lawyer, or by the Official receiving the application. Oral
applications are not admissible even during the hearing .
6)Who can file the application?
You, or your lawyer, also 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
in 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 b 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 evidence to produce, 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 and has to 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 have to pay neither
your appointed lawyer
nor 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, 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 ˆ309,87 to ˆ1549,37. In
addition, all sums paid by the State for legal aid must be refunded.
AFTER ALL
Final advice
This information 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 to contact a
lawyer or the local Bar Association.
