Legal aid - Italy

TABLE OF CONTENTS 1. What are the costs of a trial and who should normally pay them?  2. What is legal aid?  3. Can I benefit from legal aid?  4. Can legal aid be obtained for all disputes?  5. Is there a specific procedure for emergencies?  6. Where can I obtain an application form for legal aid?  7. Which documents should I attach to my request for legal aid?  8. Where should I register my request for legal aid?  9. How will I be informed of whether or not I am eligible for legal aid?  10. If I qualify for legal aid, what should I do?  11. If I qualify for legal aid, who will choose my lawyer?  12. If I qualify for legal aid, will this cover all the costs of my trial?  13. If I qualify for partial legal aid, who will pay the other costs  14. If I qualify for partial legal aid, will it cover any review I might make following the trial?  15. If I qualify for partial legal aid, can it be withdrawn before the end of the trial (or even after the trial)?  16. If I do not qualify for legal aid, can I appeal against the decision?

 

1. What are the costs of a trial and who should normally pay them?

(Legislative sources) - The rules covering classifications and procedures regarding costs of trials, including legal aid, are set out in Presidential Decree No 115 of 30 May 2002 (Law Gazette No 139/2002), which contains the consolidated text on legal costs.

Act No 794 of 13 June 1942 and subsequent amendments to that Act govern lawyers' fees for handling civil, commercial, administrative and tax cases; fees for individual legal services are paid on the basis of the tariffs approved by Ministerial Order No 585 of 1994.

(Costs of trials) - The costs (in the broad sense) of civil and commercial proceedings include the costs of trials and expenses and fees for legal representation.

The costs of proceedings consist of a standard payment for entry in the cause list and other expenditure items that may arise (such as technical consultancy and copyright fees).
The standard payment referred to in Consolidated Text No 115 of 2002 is payable at each degree of adjudication and for every civil trial, including involuntary and voluntary bankruptcy proceedings, except where specifically exempted by law.

The payment is not required in proceedings regarding a person's family, civil status or capacity, as set out in Book IV of the Code of Civil Procedure (for example, in cases of separation, provisions relating to minors and proprietary relations between spouses), preventive proceedings (e.g. attachment of debts); land registry proceedings, proceedings to enforce delivery and release, proceedings regarding child maintenance payments, all proceedings concerning children (e.g. proceedings regarding parental responsibility) and rules on competence and jurisdiction.

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The reasons for any exemption must be stated in the conclusions to the instituting document.

The standard payment is not required in the case of civil actions for compensation in connection with criminal proceedings where the application is only that the offender be convicted; if an application is made for compensation, even provisionally, the payment is due if the application is granted.

The charge varies between a minimum of €62 and a maximum of €930, depending on the nature and value of the case.

(Payment obligations) - Each party must meet the cost of the procedures completed or requested and any measures necessary for proceedings where required by law or the judge (e.g. consultancy fees). Where the party is eligible for legal aid, the State bears the cost.

The standard charge must be paid by the party who enters the case, lodges the initial appeal or, in enforcement proceedings, submits an application for assignment or sale.
The value of the case is indicated in the conclusions of the instituting document; a party who amends an application, lodges a counterclaim or intervenes independently and thereby increases the value of the case is required to pay an additional charge.

(The criterion for awarding costs) - As a general principle, the presiding judge orders the losing party to reimburse the trial costs incurred by the successful party.

The judge enjoys discretionary powers with regard to costs and may order them to be paid in part or in full, taking account of the overall outcome of the dispute. He must take account of the extent to which the claim is well founded. The decision may be challenged.

The losing party must refund the winner of the case counsel's expenses and fees, plus any amounts paid for court-appointed experts or expert witnesses as remunerated by the judge. Losing parties are also required to cover the other expenditure involved in conducting proceedings, which is paid to the clerk of the court together with the cost of notifying the judgment.

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2. What is legal aid?

Legal aid corresponds to the Italian institution of “advocacy in court paid for by the State” to protect defendants with insufficient means and involves exempting such persons from having to meet certain costs (known as expenses booked to the State) and the State paying other costs.

Where there is an entitlement to legal aid, the person is not required to pay the standard charge, standard payments for official notification, certain fees (registry fees, judicial mortgage and land registry fees) and copyright.

The State pays the following:

1. counsel's fees and expenses;
   
2. travel costs and expenses incurred by judges, officials and judicial officers for performing their duties outside the court;
   
3. travel costs and expenses incurred by witnesses, court officials and expert witnesses who incurred expenses when performing their duties are also reimbursed;
   
4. the cost of publishing any notice regarding the judge's ruling;
   
5. the cost of official notification.

The State has the right of reimbursement and, where it does not recover the money from the loser, it may claim repayment from the party eligible for legal aid, if the recipient wins the case or settlement of the dispute and receives at least six times the cost of the expenses incurred or if cases are discontinued or barred. There are special provisions for ensuring reimbursement in the event of the case being struck off the cause list or barred as a consequence of failure by the parties to act or meet legal requirements.

3. Can I benefit from legal aid?

In civil proceedings and cases of non-contentious business (e.g. separation, custody of children or rulings regarding parental responsibility), defendants with insufficient means are entitled to legal aid, as long as their reasons are not manifestly unfounded.

Anyone with a taxable income not exceeding €9269.22, as shown on his or her latest tax return, is entitled to legal aid. The income threshold is adjusted every two years by order of the Ministry of Justice to take account of variations in ISTAT's consumer price index.

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Where the party concerned lives with a spouse or other members of the family, the total family income, including that of the applicant, is taken as the income.

When the income is assessed, account is also taken of legally tax-exempt income.

Only personal income is taken into account where personal rights are being challenged or in trials where the applicant's interests are in conflict with those of the other members of the nuclear family with which he or she is living.

When the situation or fact occurs that gives rise to legal proceedings, foreign nationals and stateless persons lawfully resident in Italy are accorded the same rights as Italian citizens, as are non-profit organisations or associations that are not involved in commercial activities.

4. Can legal aid be obtained for all disputes?

Legal aid is available for any civil dispute and non-contentious business.

Legal aid cannot be obtained in cases involving the assignment of claims of others, unless the assignment has been made in settlement of previous claims.

5. Is there a specific procedure for emergencies?

There is no specific procedure for emergencies. It should, however, be pointed out that decisions must be taken quickly (within 10 days) and that there is a general principle that can be derived from the provisions governing legal aid and stipulates that the body responsible for granting legal aid must take an immediate decision in cases of emergency.

6. Where can I obtain an application form for legal aid?

Following the recent introduction of new provisions on the subject, the Ministry of Justice is in the process of producing a legal aid application form for submission to the body responsible for granting legal aid.

Anyone believing that they satisfy the legal requirements may request legal aid without using pre-printed forms at any stage or instance of proceedings but must sign the application.
The signature must be authenticated by the party's counsel or in accordance with Section 38 of Presidential Decree No 2000/445 (the application must be signed in the presence of a member of the court staff but may be submitted with a non-authenticated photocopy of a document proving the identity of the signature holder).

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The application may be sent by fax or e-mail, as long as the appropriate formalities are observed.

7. Which documents should I attach to my request for legal aid?

The application must be made on plain (unstamped) paper and is inadmissible if it does not contain the following details:

1. the request for legal aid and an indication of the proceedings, if they have already been launched;
   
2. the personal details of the person concerned and the members of the person's family, together with their tax numbers;
   
3. a statement by the applicant to the effect that his or her income is such as to warrant legal aid and indicating the total income to be taken into consideration;
   
4. the undertaking to notify, until the trial has been concluded, significant fluctuations in income in the previous year within 30 days of the expiry of one year from the submission of the application or any previous communication regarding variations.

To be admissible, the application must contain a statement of the facts and legal situation that can be used to decide that the claim is not manifestly unfounded, with specific mention of the evidence to be presented.

In the case of income earned abroad, nationals of non-EU Member States must attach certification from the appropriate consulate confirming the truthfulness of the statement.

If requested by the judge or the relevant bar association, the applicant must produce documents proving the truthfulness of his or her statement, otherwise the application will not be admissible.

8. Where should I register my request for legal aid?

Only the applicant or the applicant's counsel may submit the application, but it may be sent by registered delivery to the bar association of the circuit where the judge is hearing the case or, if the case is not pending, to the place where the judge is based who knows the merits of the case.

If the case is at the appeal stage, the competent body is the bar association where the judge issued the contested ruling.

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The bar association will grant the applicant legal aid within ten days if it is convinced that the income does not exceed the fixed ceiling and the applicant's claims are not manifestly unfounded.

Where a civil action for damages is brought in connection with criminal proceedings, the application must be presented or must arrive at the chambers of the trial judge, who will deal with it.

9. How will I be informed of whether or not I am eligible for legal aid?

Copies of the document in which the bar association grants, rejects or declares inadmissible the application will be sent to the party concerned and the judge.

If the applicant is in custody, the copy of the order will be forwarded in accordance with the rules set out in the Code of Criminal Procedure.

10. If I qualify for legal aid, what should I do?

11. If I qualify for legal aid, who will choose my lawyer?

Applicants granted legal aid may nominate a lawyer from the lists of legal aid lawyers drawn up by bar associations of the court of appeal circuit of the judge who knows the merits of the case or the judge before whom it is pending.

Applicants granted legal aid may also nominate expert witnesses where allowed by law.

If the case is at the appeal stage, the lawyer will be chosen from the lists drawn up by bar associations of the court of appeal circuit where the judge who made the contested ruling has his or her chambers.

The list of legal aid lawyers comprises professionals who have applied to be put on it and have the qualifications necessary to represent clients.

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The bar association takes the decision to include lawyers on the list on the basis of the lawyer's attitude, professional experience gained over at least six years and the fact that he or she has not been subject to disciplinary measures.

Lawyers may be struck off the list at any time. It is renewed every year and made available to the public at all judicial offices on the circuit.

Counsel representing the recipient of legal aid must apply for the notice that the trial has been discontinued if it is struck from the cause list on the grounds of inactivity by the parties (under Section 309 of the Code of Civil Procedure). Failure to do so is a disciplinary matter.

12. If I qualify for legal aid, will this cover all the costs of my trial?

Recipients of legal aid are exempted from having to pay certain costs, while others are paid by the State, as set out in Section 131 of Consolidated Text No 2002/115. The aid covers all the costs of the proceedings required by law, including the nomination of a expert to act on behalf of the recipient. It does not, however, cover the cost of out-of-court consultancy.

The applicant's counsel's fees and expenditure are paid by the judge at the end of every stage or level of the trial and at the end of the proceedings.

Expenses and fees are also paid to the judge's assistant and any expert acting on behalf of the applicant.

The recipient and the parties involved, including the public prosecutor, are notified of and may challenge the payment order.

The applicant's counsel, the judge's assistant and the applicant's expert may not request or receive remuneration or compensation from their client other than that provided for by law. Any agreement to the contrary is null and void and any infringement of the ban is a serious disciplinary offence.

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In the case of a civil action brought in connection with criminal proceedings, the costs of the proceedings are governed by Section 108 of the Consolidated Text. Eligibility for legal aid, however, gives the recipient, broadly speaking, the same entitlements as those covered by the general rules.

13. If I qualify for partial legal aid, who will pay the other costs

The rules on legal aid make no provision for partial legal aid.

14. If I qualify for partial legal aid, will it cover any review I might make following the trial?

Eligibility covers all levels and stages of the trial and any derived or otherwise connected procedures (such as enforcement).

However, if the legal aid recipient loses, he or she may not use legal aid to challenge the judgment, apart from compensation claims in connection with criminal proceedings.

15. If I qualify for partial legal aid, can it be withdrawn before the end of the trial (or even after the trial)?

If, during the proceedings, there are changes with regard to the recipient's income that have an effect of his or her eligibility for legal aid, the proceeding judge will withdraw the aid.

The trial judge may also withdraw legal aid at any time, if it emerges that the eligibility criteria have not been satisfied or that the party concerned has acted or reacted in bad faith or with gross negligence.

The withdrawal takes effect from the moment when the change in circumstances has been verified, but in other cases it is retroactive and requires the recovery of the sums paid by the State.

If it is discovered that false statements have been made, the finance office requests the withdrawal of the aid and forwards the evidence to the Public Prosecutor responsible for instituting any resultant criminal proceedings.

Checks that the eligibility criteria continue to be satisfied may be repeated during the proceedings at the request of the judicial authorities or on the initiative of the finance office.

False statements regarding income carry a sentence of between one and five years' imprisonment and a fine of between €309.87 and €1549.37. The sentence is increased if the false statement resulted in the claimant obtaining or continuing to obtain legal aid.

The conviction results in the retroactive withdrawal of the aid and the recovery from the offender of the sums paid out by the State.

16. If I do not qualify for legal aid, can I appeal against the decision?

If the competent bar association rejects the legal aid application or deems it inadmissible, the applicant may reapply to the judge hearing the case, who will then take a decision on the application in the form of an order.

Further information

Protection of abandoned children; parental responsibility proceedings

Act No 149 of 28 March 2001 (published in Law Gazette No 96/2001) introduced mandatory assigned counsel in proceedings concerning the notice of abandonment of children and in parental responsibility proceedings (limiting responsibility and forfeiture).

The provisions will require additional implementing legislation and will enter into force on 1 July 2003 (Decree Act No 126/2002).

Until then, Consolidated Text No 115/2002 will continue to govern trials covered by Act No 184/1983 (proceedings concerning the notice of availability for adoption and adoption proceedings). Section 143 of the Consolidated Test requires the State to pay:

1. the fees and expenses of the lawyer, expert witnesses and any expert acting on behalf of the applicant;
   
2. compensation and expenses payable to judges, public officials and officers of the court for work done outside the court;
   
3. expenses and compensation for witnesses and notaries;
   
4. fees and compensation due to the court officials for notification and enforcement.

The rules on non-contentious business apply to parental responsibility cases.

Procedures for deporting nationals of non-EU countries

In deportation proceedings concerning nationals of non-EU countries, the State bears the cost of the lawyer's and the judge's assistant's fees and expenses, which are paid by the proceeding judge.

Challenges may be submitted to the president of the relevant judicial office.

Care and banning proceedings instituted by the public prosecutor

Costs are paid in accordance with the general rule.

However, fees for the technical consultants of the person facing the ban or being placed in care are borne by the State.

Once the court has ruled, the State has the right to request payment from guardians if the judge establishes that the income is in excess of the ceiling fixed for legal aid in civil cases, having consulted the documents presented or investigations conducted by the finance office.

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Last update: 23-03-2005