Legal aid, more appropriately ‘Patrocinio a Spedizioni dello Stato’ (legal aid), allows people without a minimum annual income, set at EUR 11,746.68, to be defended by a lawyer without bearing the costs, which will be covered by the Italian State.
Therefore, only the less well-off can benefit from legal aid. In order to calculate the minimum income, reference is made to the declaration of the year preceding the request: all taxable incomes are considered and added together, taking into account also those which, by law, are exempt from IRPEF and those subject to withholding or substitute tax, received in the last year by the person concerned. If the latter has cohabitees, the amount of income is the sum of the incomes of all the members of the household.
Legal aid is allowed only for procedural defence and not also for out-of-court assistance (e.g. it cannot be granted for advice and activities of the lawyer before the trial).
The person admitted to legal aid may freely choose the lawyer who will assist him/her; however, he/she may not appoint more than one lawyer at the same time.
A person admitted to legal aid may therefore appoint only one advocate, chosen from among those registered in the lists of lawyers for legal aid, established at the bar associations in each city.
If you think you fall within the category of persons eligible for legal aid / legal aid, call us now on +39 091 6162771 (from Italy) or +44 (0) 7517460844 (from the UK) and we will give you a free initial consultation to assess your case and check whether you meet the essential conditions.
What are the eligibility requirements for legal aid?
Eligible persons are all Italian and non-Italian citizens who are considered not well-off at the time of application, as they have an annual income of €11,746.68 or less. This condition must be maintained for the entire duration of the trial.
Only the personal income of the person concerned is taken into account when the case concerns personal rights, i.e. those proceedings in which the applicant’s interests conflict with those of the other members of the household living with him (e.g. separation and divorce).
Ownership of the dwelling house alone does not prevent admission to legal aid.
For the determination of one’s income, and consequently for the verification of compliance with the legal ceiling for the purposes of admission to legal aid, one refers to one’s income resulting from one’s last declaration or from the CUD, net of deductible charges.
The so-called ‘Anti-Rape Decree’ of 2009 also provided for victims of crimes of sexual violence, sexual acts with minors and group sexual violence to be admitted to legal aid, regardless of income limits.
It is specified that the judge of the case, even after the admission to legal aid has taken place, may revoke the benefit. The judge has this power whenever, after assessing the economic situation of the entire period during which legal aid has operated, he finds that it has changed as a result of new dispositions of the person concerned, incompatible with the granting of the benefit. The revocation of legal aid concerns only the defensive activity carried out in the period following the change in the income situation: all the activity previously carried out by the professional remains at the expense of the Italian State.
For which proceedings can legal aid be requested?
Legal aid is admitted in civil, criminal, administrative, accounting, tax and voluntary jurisdiction proceedings (e.g. separation by mutual consent, divorce on joint application, modification of the conditions of separation, etc.), provided that the issues are not manifestly unfounded.
It is also admitted in enforcement proceedings.
In civil proceedings, if the party admitted to legal aid loses the case in the first instance, he/she must submit a new application for admission to legal aid for the appeal or complaint proceedings.
Admission to legal aid is valid for every level, stage and state of proceedings before every jurisdiction (e.g. courts, courts of appeal, court of cassation, TAR, Council of State, etc.).
In general, legal aid is also granted for criminal proceedings.
However, persons who are suspected, accused or convicted of tax evasion offences and who are defended by more than one lawyer are excluded from legal aid in criminal proceedings.
Anyone who has already been convicted of mafia offences and certain drug offences or smuggling cannot be admitted to the benefit.
In compulsory mediation proceedings, legal aid is admissible for indigent persons, provided that the procedure has been positively defined.
The beneficiary who initiates a compulsory mediation case will therefore not have to pay any fee to the Conciliation Body.
However, in mediation proceedings, legal aid does not cover the fees of the lawyer assisting the person concerned during the proceedings, as the lawyer’s presence is, for the time being, considered optional.
How is the application for admission submitted?
The application for admission to legal aid, in written form, must be personally signed by the person concerned, under penalty of inadmissibility.
An oral application is not admissible, not even at the hearing.
The application may be submitted by the interested party or by the lawyer, also by registered mail.
The applicant may submit his application and be provisionally admitted to legal aid even without indicating a lawyer, who must, however, be appointed at a later date.
The application must be filed after the proceedings have started and the effects take effect from the filing.
It is not permitted to apply for the benefit after the conclusion of the trial.
The application for admission in civil proceedings is submitted to the Secretariat of the Council of the Bar Association, territorially competent.
The application is made by filling in the appropriate forms available at the Bar Council Secretariat, and must be submitted either personally by the person concerned, with a photocopy of a valid identity document attached, or by his lawyer.
The Council of the Bar Association, which receives the application signed by the person concerned, assesses the merits of the application for admission to legal aid and issues, within 10 days, a measure accepting or rejecting it, forwarding a copy to the person concerned, to the competent judge and to the Revenue Office, for verification of the declared income.
Following admission to legal aid, the person concerned may appoint a lawyer, choosing the name from the list of lawyers qualified to defend for legal aid at the local Bar Association.
All costs are paid by the State: no lawyer, technical adviser or out-of-pocket legal fees are payable.
The application for admission to legal aid in criminal proceedings must be submitted exclusively by the person concerned or by the defence lawyer (also at the hearing) or sent, by registered mail, to the office of the magistrate before whom the trial is pending. If the Court of Cassation proceeds, the application is submitted to the office of the magistrate who issued the contested decision. The application must be signed by the interested party under penalty of inadmissibility and the signature is notarised by the lawyer.
The application is then assessed by the magistrate before whom it is presented, who, by reasoned decree that is filed with the right for the interested party or his lawyer to take a copy, may
– declare it inadmissible;
– admit it;
– reject it.
Against the latter measure, the interested party may appeal, within twenty days of knowledge of the same, before the president of the court or the president of the court of appeal to which the magistrate who issued the rejection decree belongs.
What is the difference between legal aid and public defence?
Legal aid has nothing to do with public defence.
In fact, the two institutions often tend to be confused and this gives rise to misinterpretations.
Legal aid consists – as stated – of free legal assistance (because paid by the State) for people without means.
Legal aid, on the other hand, has a different purpose, namely to enable anyone to always have a technical defence when subject to criminal proceedings.
Public defence is, therefore, the technical assistance service guaranteed to suspects or defendants who have not appointed their own defence counsel or who have been deprived of one.
The public defender is not bound by a fiduciary relationship to the person assisted but by the fulfilment of an obligation to perform the task, which is linked to the recurrence of the above-mentioned prerequisite.
The public defender’s office is subsidiary in nature to the defence of trust, in that it intervenes only in the absence of the latter, either for lack of appointment or for failure of the appointed trustee defence, and represents the highest expression of lawyers’ social responsibility.
For these reasons, the public defender is paid not by the State but by the defendant, unless the latter qualifies for legal aid. In that case, if admission to legal aid is not obtained, the cost of the lawyer will be borne by the defendant, who will be charged a fee for the defence activity performed.
If you think you fall within the category of persons eligible for legal aid / legal aid, call us now on +39 091 6162771 (from Italy) or +44 (0) 7517460844 (from the UK) and we will give you a free initial consultation to assess your case and check whether you meet the essential conditions.