Legal Aid: Cassation No. 13328/2025 on the Limits of Referral Proceedings

With judgment no. 13328 filed on April 7, 2025, the Third Criminal Section of the Court of Cassation addresses a crucial issue for lawyers and indigent clients: the correct delimitation of referral proceedings when discussing admission to legal aid. The case originated from the appeal of V. N., whose application had been rejected by the Court of Palmi; the Court had already annulled that decision with referral, but in the new proceedings, the rejection was confirmed for different reasons. This led to a further appeal reaching the Court of Cassation.

The Principle of Law Expressed

In referral proceedings following the annulment of the order rejecting the opposition to the decree rejecting the application for admission to legal aid, the decision declaring the inadmissibility of the application is illegitimate if based on grounds that were not part of the previous proceedings, as the nature of the proceedings does not allow for the introduction of issues other than those subject to the referral. (In its reasoning, the Court added that the benefit, if the conditions are met, can always be revoked in separate proceedings pursuant to art. 112, paragraph 1, of the aforementioned Presidential Decree, provided that the revocation is based on grounds other than those covered by the judgment).

In simple terms, the Court reiterates that the referring judge "cannot broaden the playing field": they must limit themselves to re-examining the points indicated by the Court of Cassation in the annulling judgment, without inventing new grounds for rejection. Any different aspect may, if anything, be evaluated in a separate revocation proceeding pursuant to art. 112, paragraph 1, of Presidential Decree 115/2002.

The Reference Regulatory Framework

The decision operates within the framework of:

• Articles 95 and 99 of Presidential Decree 115/2002 (Consolidated Law on Justice Costs) concerning applications and oppositions;
• Articles 627 and 628 of the Code of Criminal Procedure, which regulate referral proceedings;
• Article 624 of the Code of Criminal Procedure regarding res judicata.

According to the Court of Cassation, the combined effect of these provisions requires that, once the rejection has been annulled, the territorial judge must deal exclusively with the reasons indicated by the Court. Any extension would violate the principle of tantum devolutum quantum appellatum (as much is referred as is appealed), with repercussions on legal certainty.

Practical Implications for Lawyers and Clients

The ruling offers operational insights:

• The lawyer appealing a denial can focus on the content of the annulment judgment, knowing that the referring judge cannot reopen new issues.
• Any changes in the client's income conditions can be assessed in the revocation proceedings, but not in the referral.
• The reasoning becomes central: an undue extension of the grounds will constitute a relevant defect for a new appeal to the Court of Cassation.

There are also ethical implications: the lawyer must promptly inform the client of the possibility of revocation proceedings if obstructive reasons arise, avoiding undue extensions of the benefit.

Conclusions

Judgment 13328/2025 follows precedents such as Cass. 16440/2024 and 5749/2023, reinforcing the principle of "rigidity" in referral proceedings. For the defense of the indigent, it represents a protection: it prevents access to legal aid from being denied based on arguments never discussed, ensuring procedural coherence and respect for the right of defense enshrined in Article 24 of the Constitution. For professionals, it is a reminder: knowing the boundaries of referral means protecting the client's rights and preventing unnecessary litigation.