Legal aid, Italy condemned for late payment to lawyers

For the first time Italy has been condemned by the European Court of Human Rights for the structural delay in paying lawyers the sums owed by the state for legal aid for the underprivileged in criminal and civil proceedings. The ECHR, in its ruling of 11 December, attributes the chronic delays in payment to both organisational (lack of staff) and financial causes. "It is also apparent from the documents submitted by the parties that the delays in question stem from a number of factors: problems linked, on the one hand, to the management of the proceedings by the court registries, as regards the delay in communicating orders to the parties or in authorising the sending of invoices, and, on the other hand, to the lack of sufficient financial resources, as regards the delay in payment following the sending of invoices."

The Court then emphasises the value of legal aid in ensuring access to the courts and the exercise of the right of defence even by the indigent.

After noting that the delays, even on the basis of the available data, in some cases exceed 4 years and that the Government was unable to give a convincing explanation, the Court also outlines a time window of tolerability intended to guide future practice: "The Court recognises that while a certain delay in the execution of payment orders is understandable, this should not, save in exceptional circumstances, exceed one year in total, excluding the opposition period and, in principle, six months between the filing of the orders and the lawyers being able to send the invoice, and six months between the time of sending the invoice and payment."

For the Criminal Chambers, 'with this indication, the Court not only found the delays that were the subject of the appeals to be unreasonable, but also introduced a general criterion destined to guide the practice of judicial offices and the administration, marking a turning point in the effective protection of the right of lawyers to receive what is due to them for their work within a time frame consistent with the public and constitutional nature of the defence function'.

The Court also held that the payment decrees issued by the Italian courts constitute genuine titles certifying a certain and collectable claim, protected as a 'good' on the basis of the Convention on Human Rights and, as clarified by the national case law referred to by the Court itself, recognise a subjective patrimonial right of the lawyer, which cannot be emptied of content by administrative delays or organisational deficiencies.