Justice

Lawyers in defence of lawyers investigated for receiving fees from the alleged boss

For the criminal chambers 'unprecedented attack on guarantees'. The forensic congress body thinks about mobilisation

by Patrizia Maciocchi

27 May 2024

5' min read

Key points

Eavesdropping
Gip's motivations
The advocacy stance

5' min read

"One has to wonder (...) what would become of the right of defence if the economic relations between suspect and defender were probed under the - particularly penetrating - lens of receipt and/or incautious purchase". With these motivations, the Milan Court Judge Roberto Crepaldi rejected the prosecutor's request for an interdiction order against two lawyers defending the alleged Turkish mafia boss Baris Boyun in another case, who, according to the prosecution, were allegedly paid with dirty money "being aware of it, with the aggravating circumstance of having committed the acts in the exercise of the legal profession as trusted appointees" of the Turk.

This reading was not shared by the Gip, who rejected the request for precautionary measures, and rejected by the Gip, who emphasised the risk of compromising the right of defence, if the payment of the fee were to be understood as aiding and abetting a crime, in fact ending up considering the defender an 'accomplice'.

Eavesdropping

The public prosecutor's request was triggered on the basis of interceptions of conversations between the defenders and their clients. For the Prosecutor, 'the knowledge of the illicit origin of the money would derive from the content of an intercepted dialogue, in which Boyun states, referring to the two defenders, that "we have become friends, almost like brothers, and it will last forever/until death this bond. When there is a problem here, we will get together frequently'. In the Gip's opinion, the indications of awareness are weak, just as insignificant, also because it was uttered in a joking manner, would be the appellation 'big boss', used by one of the two lawyers to refer to Boyun.

The Gip's motives

The gip, considering the crime charged, asks for caution. "In the first place, he physiologically has economic relations with persons at least suspected of having committed a crime, so that any awareness of the criminal quality of his debtor - already insufficient according to the opinion of the Supreme Court in relation to a normal obligatory relationship - must be considered irrelevant," writes the judge; if it were not so, in fact, the defender could never demand the payment of fees from his client when he has confessed to him - in the context of the fiduciary relationship - that he is addicted to crime, that is to say, after the final conviction of the client without lawful sources of income.
Secondly, one cannot fail to highlight the delicacy of the situation under consideration here, given the need to consider the interests underlying the defence relationship, which differs from any other contractual relationship because it relates to the fundamental - also constitutional - right of defence.

An element of perplexity could be the payment in cash given also the large sums: tens of thousands of euro. But for the Gip, the picture is 'made even more uncertain, from the point of view of the full awareness of the two, by the characteristics of the debtor: the cash, in fact, could also find an alternative explanation in the fact that they are foreigners, with no employment in Italy and whose livelihood could well be guaranteed by subjects still resident in their homeland, who would send the necessary sums in cash'.

The Advocacy Statement

The position of the lawyers was prompt. The Coa of Milan expressed concern, hoping 'that the constitutional right of defence will always be guaranteed, having, moreover, always protected the autonomy and independence of any investigative initiative'. For the Movimento Forense: "It is necessary to turn the page," reads a note, "saying goodbye to a sad era that sees, among many others, the trial martyrdom suffered by famous servants of the State for decades.

The Penal Chambers speak of an 'unprecedented attack on the guarantees, the freedom of the lawyer and the suspect's right of defence'. In the view of the criminalists we are faced with 'a further drift of judicial practice detached from constitutional principles, too often factiously enunciated by the judiciary, but, once again, totally disregarded. The question then arises: where is the mysterious culture of jurisdiction to which - according to the judiciary - the public prosecutor should also belong? What emerges, on the contrary, is a dangerous exaggeration of the role of the investigator who stubbornly insists on equating the defence of the suspect with the defence of the crime'.

The Italian Association of Young Lawyers also stigmatises the prosecutor's request "The Aiga considers these - by now all too frequent - attacks on the independence of the lawyer and the inviolability of his or her defensive function to be inadmissible. Such action - the note reads - constitutes a dangerous drift, especially since, as we learn, the defenders were wiretapped and inevitably weakens the figure and role of the lawyer as defender and guarantor of the freedom and effectiveness of the defence".

The forensic congress body

"The initiative of the Milan Public Prosecutor's Office, which, moreover, was not endorsed by the Judge for Preliminary Investigations, who investigated and requested the disqualification measure against two defence lawyers in the same proceedings in which they were acting as defence counsel, represents a serious compression of the right of defence and the impossibility of guaranteeing it with investigations and accusatory theses that do not take into account the importance of the role of the defence counsel.

This was stated in a resolution of the assembly of the Organismo congressuale forense, which also expressed great concern over the occurrence of judicial events that highlight the spread of ideas of justice that run counter to the liberal and democratic nature of our State. Indeed, the freedom of the relationship between a lawyer and his client derives from the essential function of the defence in the trial. Investigations against the defence counsel in the course of the trial are in themselves an assault on the freedom of the citizen. Moreover, the listening in and, moreover, the use of conversations between the suspect and his defence counsel are an assault on a liberal conception of justice, in breach of the express prohibition in Article 103(5) of the Code of Criminal Procedure.

The citizen must relate to his lawyer with the absolute peace of mind that what he says will not be perceived by the investigators and even used against him in the proceedings against him. Otherwise, the defence would be ineluctably denied and the lawyer prevented from effectively carrying out his professional mandate. On behalf of Italian lawyers, we call on parliament to urgently and definitively approve the reform of Article 103 of the Code of Criminal Procedure which, in its new wording, expressly obliges investigators to immediately stop listening to conversations in the event of an interview in which a lawyer takes part.

The Assembly also mandated the Coordination Bureau to evaluate appropriate ways of mobilisation and protest commensurate with the extreme gravity of what happened.