Italian court appointed lawyers in criminal proceedings are private criminal defense attorneys willing to serve on Court appointment for defendants without legal representation.
Under Italian law, defense in criminal proceedings and trials is mandatory: if the defendant does not have an appointed lawyer of own choice, the Court will appoint a counsel chosen randomly from a list (“court appointed lawyer”, or "State appointed lawyer" or "public defender"), even against the will of the defendant.
1. How is the court appointed lawyer choosen?
The choice and assignment of a Court appointed lawyer under Italian criminal procedure is subject to an articulated discipline aimed at meeting requirements of effectiveness and to avoid slowdowns in procedural activities.
From the legal mechanism clearly emerges the intent to avoid discretionary choices in the identification of defense counsel by providing automatic investiture: in substance, the Council of each Bar Association prepares and updates annually the alphabetical list of members who are part of the national roll of lawyers willing and available to assume public defenses.
Registration on the roll and its updating is now the responsibility of the National Bar Council, which also takes care of the periodic updating of the list for new members and for those already registered, who for the purpose of remaining on the list will have to prove “a) [of] not having had any final disciplinary sanctions greater than a warning; b) the continuous exercise of activity in the criminal field proven by participation in at least ten court or trial hearings per year, excluding those of mere referral.” In addition, it is provided that it is impossible for members to apply for removal from the national register, earlier than two years after registration.
Designation must take place under the banner of a computerized system, which allows an effective defense by reason of the “proximity to the seat of the proceedings and the availability” of the defender.
2. Italian ex officio attorenys are not legal aid lawyers
Court appointed lawyers do not grant automatically legal aid (which implies a means test in Italy, even if the defendant is detained); they can be replaced by the Court in very limited cases (e.g. conflict of interest), but a defendant can in any moment appoint a lawyer of own trust, which leads automatically to dismiss the court appointed lawyer.
How can I choose an Italian criminal lawyer?
3. How can Italian ex officio lawyers be replaced?
In principle, the defnadnt can replace the court appointed lawyer only by choosing a lawyer of wown choice.
Absenteeism or total failure to undertake basic functions will generally be considered to be a failing that is manifest to the State under European Convention of Human Rights art. 6 “fair trial” requirements; Italian legal system is not entirely consistent with said provision.
In Strasbourg's Artico v Italy decision (Artico v Italy, ECtHR, Judgment of 13 May 1980) the court appointed lawyer declined to represent him from the outset of the case, on the basis of his other commitments and his ill-health. Despite that, the Government failed to substitute the appointed lawyer with another legal representative. In finding a breach of Article 6(3), the ECtHR held that when an appointed lawyer is prevented from performing his duties and the authorities are aware of the situation, they have an obligation either to replace him or to make sure he fulfills his obligations.
A total inactivity could lead to replacement of the lawyer even under Italian provisions, but disagreement on the defense stratey, or dissatisfaction with the manner in which the court appointed lawyer runs the case, or even minor errors or defects in the lawyer’s work are unlikely to lead to a situation in which the State is obliged to intervene, replacing the attorney.
4. Qualification of court appointed lawyers
To obtain registration on the list of Court appointed lawyers, the lawyer must enjoy one of the following requirements:
(a) participation in a two-year course of professional training and refresher courses in criminal matters, organized by the District Bar Council or a Territorial Criminal Chamber or the Union of Criminal Chambers, with a total duration of at least 90 hours and passing a final examination;
(b) registration in the bar for at least five years and experience in criminal matters, proven by the production of appropriate documentation;
(c) attainment of the title of specialist in criminal law.
Despite the legal framework, there is a general lack of quality control on the legal profession in Italy. The mandatory nature of legal assistance gives rise to a situation where what matters is that a lawyer was present, not whether the lawyer was prepared and sufficiently skilled to perform his or her duty (see. https://www.justiceinitiative.org/uploads/52a18cdc-4650-449b-a200-eb7f4c9a6934/eu-legal-aid-italy-20150427.pdf).
5. Mandatory nature of the appointment
In contrast to the fiduciary assignment, the provision of legal aid for the Court appointed lawyer has the character of compulsoriness, since the lawyer can not renounce it and be removed only for justified reasons (art 97/5 Ita c.p.c.).
The phrase “justified reason” may include the prolonged and persistent failure to fulfill the duties of the office, which can be configured in the concrete failure to activate any defensive tasks, in addition to situations of incompatibility, the possible recurrence of which must in any case be subject to evaluation by the judge.
Art 97 of Italian criminal procedure code
1. A defendant who has not appointed a lawyer of own trust or is without one shall be assisted by a court appointed lawyer.
2. The court appointed lawyer appointed pursuant to Paragraph 1 shall be identified from among those on the national list referred to in Article 29 of the implementing provisions. The district bar councils of each district of the Court of Appeals shall prepare, through a special centralized office, the list of registered professionals who are part of the national list for the purpose of appointment at the request of the judicial authority and the judicial police. The National Bar Council shall establish, on an annual basis, general criteria for the appointment of such public defenders on the basis of proximity to the seat of the proceedings and availability.
3. The judge, the prosecutor and the judicial police, if they have to perform an act for which the assistance of a defense counsel is required and the person under investigation or the defendant is without one, shall give notice of the act to the defense counsel whose name shall be communicated by the office referred to in paragraph 2.
4. When the presence of the defense counsel is required and the counsel of trust or office appointed pursuant to subsections 2 and 3 has not been found, has failed to appear or has abandoned the defense, the court shall designate as a substitute another immediately available defense counsel for whom the provisions of Article 102 shall apply . The public prosecutor and the judicial police, under the same circumstances, shall request another name from the office referred to in paragraph 2, except, in cases of urgency, the designation of another immediately available defense counsel, subject to the adoption of a reasoned order stating the reasons for the urgency. In the course of the trial, only a defense counsel on the list referred to in paragraph 2(8) may be appointed as a substitute.
5. The court appointed lawyer is obliged to provide legal aid and may be replaced only for a justified reason.
6. The court appointed lawyer shall cease his duties if a lawuer of own trust of the defendant is appointed.