Analysis of Judgment Cass. civ., Section II, Ord. no. 18383/2024: Free Legal Aid and Rights of Court-Appointed Defenders

The recent order of the Court of Cassation, dated July 5, 2024, raises important issues concerning free legal aid and the rights of court-appointed defenders, particularly in adoption proceedings. The central issue concerns the unequal treatment between court-appointed defenders of unavailable parents and those of insolvent parents, highlighting a potential violation of the principles of equality enshrined in Article 3 of the Italian Constitution.

The Regulatory Framework and the Issue Raised

The appellant A.A., a court-appointed lawyer, requested the liquidation of fees for her activity in an adoption proceeding. The request was initially rejected by the Juvenile Court of Potenza, which argued that the rules regarding court-appointed defense in criminal matters cannot be extended to adoption proceedings. This position led A.A. to file an appeal with the Court of Cassation.

• Disparate treatment between court-appointed defenders of unavailable parents and those of insolvent parents.
• Reference to the judgment of the Constitutional Court no. 135 of 2019, which declared similar provisions unconstitutional.
• Possibility of reimbursement of professional expenses borne by the State for court-appointed defenders.

The Court of Cassation deemed the question of the constitutionality of art. 143, first paragraph, of Presidential Decree no. 115 of May 30, 2002, relevant and not manifestly unfounded, with reference to art. 3 of the Constitution.

Implications of the Judgment

The Court highlighted that the current regulatory framework creates an unreasonable disparity of treatment between the court-appointed defender of an unavailable parent and that of an available but insolvent parent. This leads to a violation of the principle of equality, as both situations present significant analogies. The Court therefore decided to refer the matter to the Constitutional Court, emphasizing the importance of ensuring effective defense, especially in proceedings concerning the rights of minors.

Conclusions

In conclusion, judgment no. 18383/2024 of the Court of Cassation represents a fundamental step for the recognition of the rights of court-appointed defenders and for the protection of minors. The question of constitutionality raised could lead to a significant change in the regulations governing free legal aid, ensuring greater fairness and protection for all parties involved in adoption proceedings.