Legal Aid: The Court of Cassation and the Effectiveness of the Defence Counsel's Fee (Judgment no. 9628/2025)
The Italian judicial system guarantees access to justice for all, and legal aid is a fundamental tool for the less fortunate. But what happens if the benefit is revoked? And what are the consequences for the defence counsel's fee? The Court of Cassation, with judgment no. 9628 of 2025, has provided crucial clarification, resolving interpretative doubts and strengthening legal certainty for professionals in the sector.
Legal Aid: An Essential Guarantee
The right to defence is inviolable, as established by Article 24 of the Constitution. To make it effective even for those without resources, Presidential Decree no. 115/2002 established legal aid. This allows citizens with specific income requirements to be legally assisted without incurring costs, which are advanced or reimbursed by the State. It is a pillar of our democracy, aimed at ensuring substantive equality before the law.
Revocation of the Benefit and Defence Counsel's Fee: The Turning Point
The legal aid benefit can be revoked if the income requirements are no longer met or in case of false declarations. Revocation, often with retroactive effect, raises questions about the fee already paid or being paid to the defence counsel. The lawyer, in fact, carries out their activity relying on admission to legal aid. Judgment no. 9628 of 2025, concerning the case of the defendant R. S., addresses precisely this delicate issue.
In matters of legal aid, the revocation of the benefit due to the original or subsequent lack of the income conditions provided by law, despite having retroactive effect, does not render ineffective the payment order for the defence counsel issued before the revocation of the admission measure.
This maxim of the Court of Cassation, presided over and drafted by Dr. Eugenia Serrao, clarifies that the revocation of legal aid, although retroactive for the assisted party, does not invalidate the payment order already issued in favour of the defence counsel. If the judge has already awarded the fee to the lawyer before the revocation, that order remains valid and the lawyer is entitled to receive the sum. This interpretation protects the good faith and reliance of the professional, ensuring continuity and effectiveness of the defence service.
The Supreme Court's Stance and Legal References
The Cassation Court's decision is part of a consolidated case law trend (see, for example, Rv. 276256-01 of 2019 and Rv. 281134-01 of 2021). The Supreme Court has always balanced the retroactivity of revocation for the assisted party with the protection of the defence counsel's right to fees. This is based on Presidential Decree no. 115/2002, particularly Articles 84, 111, 112, and 170, which regulate admission, revocation, effects, and payment. The Constitutional Court has repeatedly reaffirmed the importance of an effective legal aid system that does not penalize professionals.
The reasons for this interpretation are based on principles of legal logic and equity:
- Protection of reliance: The lawyer, accepting the assignment, relies on state payment.
- Continuity of service: Ensuring payment incentivizes professionals to operate diligently, without fear of not being paid for external reasons.
- Separation of positions: Revocation concerns the assisted party and the State (for the recovery of sums), but not the relationship between the State and the defence counsel for the activity already performed and paid.
Conclusions: Clarity and Certainty for the Justice System
Judgment no. 9628 of 2025 by the Court of Cassation is a significant milestone. It consolidates a principle of clarity and certainty for legal operators, especially for lawyers involved in legal aid. The decision ensures that the commitment to defending the rights of the most vulnerable is recognized and protected, contributing to maintaining high-quality legal assistance and strengthening trust in the judicial system. A significant step forward for Italian justice.
