Home
Firm profile
Readings
Contacts
Firm profile

Judgments

Legal aid in Italy: how can a foreigner prove their income? (Cass. 5008/25)

7 February 2025, Italian Supreme Court

Tag

Legal aid in Italy is granted on a "menas test", soo taking into account only the financeial sitruation of the defendqnt (earnings less than 11500 euros / year). 

The law, which chooses to defer to the applicant the declaration about the amount of income earned in the relevant year, regardless of the availability of documentation attesting to the amount, introduces, however, a distinction between EU and non-EU citizens.

For the former, in fact, only self-certification of income is needed, while for the latter, on the other hand, the production of a certification from the competent consular authority is required, attesting to the truthfulness of the communication on income earned abroad.

 It is permissible even for the non-EU citizen to submit a self-certification attesting to the amount of income received in the relevant year for legal aid in criminal proceeding, but only if it is impossible to produce, together with the application, the required consular certification: it must be held that “impossibility” must be understood to mean any eventuality that prevents the application from being accompanied by the consular certification, either because the application made to the state authority prior to the application for admission to legal aid has not been answered, or because the time required to obtain it is in any case profiled as incompatible with the urgency of ensuring a timely defense of trust in the proceedings in which the person concerned is involved.

 

Criminal Cassation

sec. IV, ud. Nov. 19, 2024 (dep. Feb. 7, 2025), no. 5008

President Di Salvo - Rapporteur Branda

Held in fact

1. M.K., through his lawyer, appeals for cassation against the decision of May 21, 2024, by which the Court of Santa Maria Capua Vetere, rejected the appeal, brought under Article 99 of Presidential Decree No. 115/2002, against the decree by which the proceeding judge declared inadmissible the application for admission to legal aid because it was not accompanied by the certification of the consular authority, required by Article 79, paragraph 2, of the aforementioned Presidential Decree. P. R. for non-EU citizens.

The Tribunal, premised that for non-EU citizens, for income earned abroad, the submission, under penalty of inadmissibility, of certification from the competent consular authority attesting to the truthfulness of the statements contained in the application for admission to the benefit -art.79, paragraph 2, of the aforementioned d.p.r.-, found that such certification did not appear to have been attached by the applicant at the time of the application's submission and that the impossibility of producing it had not been demonstrated, given that the applicant had not taken action “usefully and promptly.” In fact, a request to the consular authority, forwarded by uncertified e-mail on March 18, 2023, and therefore a few days before the filing of the application for legal aid, which took place on March 23, 2023, was documented.

2. In the sole ground of appeal, the contested decision is criticized for violation of the law, in relation to Articles 79 and 94 of Presidential Decree 115/2002, complaining that none of these provisions provides for the inadmissibility of the application as a consequence of the failure to produce the aforementioned certification.

It is also inferred that the request to the Nigerian consulate to obtain the necessary certification was made at the same time as the appointment of the defense counsel, which took place a few days before the only hearing in which the same counsel would have participated, and that the judge decided the petition three months later, without, moreover, requesting any supplement.

2. The Attorney General requested that the order be annulled without referral.

Considered in law

1. The appeal is unfounded

1.1 It is recalled that the provision of Article 79, paragraph 2, Presidential Decree 115/2002 states that “For income earned abroad, the citizen of non-EU states shall accompany the application with a certification from the competent consular authority attesting to the truthfulness of what is indicated therein.”

Article 94, paragraph 2, d.P.R. cit. states that “In the event of inability to produce the documentation required pursuant to Article 79, paragraph 2, the citizen of non-EU states shall replace it, under penalty of inadmissibility, with a statement in lieu of certification.”

It is, therefore, permissible for the non-EU citizen to submit a self-certification attesting to the amount of income received in the relevant year if it is impossible to produce the required consular certification along with the application.

It is then necessary to understand what meaning the legislature intended to assign to the term “impossible” in Article 94 in order to justify the substitution of documentation from the foreign state for self-certification, both with reference to the actuality of compliance on the part of the foreign state authority, but also in relation to the time of compliance on its part.

In order to give a solution to the question, it is necessary to start from the spirit that informs the legal aid legislation, which is marked by the desire to give a rapid response to a request aimed at obtaining the realization of a fundamental right of the person, such as that of defense in the trial, connoted by a fiduciary relationship with the sponsor.

The legislative scheme as outlined in Articles 79, 95, 96, 98 and 112 of Presidential Decree 115/2002, in fact, configures a procedure that implies a decision substantially based on the declarations of the petitioner, so much so that the procedural inquiry is limited to the verification entrusted to the Guardia di Finanza (Art. 96), ordered by the judge before ruling on the petition only when there are well-founded reasons to believe that the declared income exceeds the threshold provided for in Art. 76.

Subsequent to admission to the benefit, however, there is a phase of assessment by the financial offices (Art. 98), which can lead to revocation of the benefit (Art. 112) and possibly criminal sanction (Art. 95), for falsehoods or omissions contained in the statement in lieu of certification.

The legislature, which chooses to defer to the applicant the declaration about the amount of income earned in the relevant year, regardless of the availability of documentation certifying the amount, introduces, however, a distinction between EU and non-EU citizens.

For the former, in fact, only self-certification of income is provided, while for the latter, on the other hand, the production of a certification from the competent consular authority is required, attesting to the truthfulness of the communication on income earned abroad. The difference in regulations is justified because of the possibility of verification of income conditions by the Financial Office, which, pursuant to Article 98, must, after admission to the benefit, provide for the verification, through the tax registry-and, where necessary, through the investigation of the Guardia di Finanza- of the accuracy of the income declared by the interested party.

It is clear that such a post-admission check is not easily feasible for income produced abroad by the non-EU citizen, so it is envisaged that he or she should take steps to documentally prove its consistency, by means of the production of consular certification together with the submission of the application.

Such procedural model, which requires the non-EU foreigner to take responsibility for the prior attestation of the truthfulness of the declaration of income produced abroad, nevertheless, does not exclude admission to the benefit in the case of the 'impossibility' of presenting said documentation, establishing that it may be replaced by a 'declaration in lieu of certification' (Art. 94, paragraph 2).

Now, it must be held that 'impossibility' must mean any eventuality that prevents the application from being accompanied by the consular certification, either because the request made to the state authority prior to the application for admission to legal aid has not been answered, or because the time required to obtain it is in any case profiled as incompatible with the urgency of ensuring a timely defense of trust in the proceedings in which the person concerned is involved.

Such a reading, in fact, is consistent with the principle in Article 6 ECHR whereby the accused not only has the right to have counsel of his own trust and, if he does not have the means to pay for it, to be assisted free of charge by a lawyer [para. 3(c)] but also that of having the necessary time and facilities to prepare his defense [para. 3(b)], the latter condition being intrinsically connected with the timely admission of the indigent to legal aid.

Therefore, the impossibility -understood in the sense just specified- of providing for the production of the consular certification to accompany the application for admission, equalizes the fulfilments imposed for the formulation of the application on the non-EU citizen to those imposed on the EU citizen, postponing for both to the phase following admission the verification of the truthfulness of the declarations in lieu of certification with regard to the income consistency, without prejudice, in the decisional phase, to the recourse to the exercise of the investigative powers conferred on the judge (art. 96) with regard to investigating the compatibility of the applicant's standard of living with the income declared by him.

1.2 In the case at hand, the request for consular certification was transmitted only five days before the filing of the application for admission to legal aid; and in fact, as logically held in the contested measure, it is untimely, given that the Authority entrusted with the request could not have processed it in any case in good time, given the time interval of only five days, evidently unsuitable for any verification of the consistency of income.

Nor, on the other hand, have any useful elements been put forward to show that the appellant could not have anticipated its transmission, since only the connection with the date of appointment of the defense counsel close to the hearing has been deduced, which in itself does not explain the impossibility of obtaining the certification, or at least of taking action in time to obtain it.

For these reasons, the appeal must be dismissed.

2. The dismissal is followed by an order that the appellant pay the costs of the proceedings pursuant to Article 616 of the Code of Criminal Procedure.

P.Q.M.

Dismisses the appeal and orders the appellant to pay the court costs.