Free Legal Aid and Legal Costs: The Court of Cassation (Judgment no. 24410/2025) Clarifies the Applicable Procedure

The right to defense is a fundamental pillar of our legal system, guaranteed by Article 24 of the Constitution. To ensure that this right is effective even for those who do not have the necessary financial resources, there is the institution of state-funded legal aid, commonly known as free legal aid. However, its application can present complexities, especially when it comes to defining the applicable procedural route in case of opposition to the denial of the application. On this crucial point, the Court of Cassation has intervened with the recent Judgment no. 24410 of June 24, 2025 (filed on July 2, 2025), offering a clarification of considerable importance.

The Question of Procedure: Civil or Criminal?

The procedural case under review concerned the defendant M. K., and led the Supreme Court, presided over by Dr. L. V. and with Dr. G. C. as rapporteur, to rule on the nature of the opposition proceedings against decisions that reject the application for admission to state-funded legal aid. The relevant legislation, in particular Article 99, paragraph 3, of Presidential Decree no. 115 of May 30, 2002 (Consolidated Text on Justice Costs), refers to the special procedure for lawyer's fees, governed by Article 14 of Legislative Decree no. 150 of September 1, 2011. This latter provision, in turn, refers to the simplified cognitive procedure, now regulated by Articles 281-decies et seq. of the Code of Civil Procedure.

The question that arose was: does this reference to the summary civil procedure exclude the application of the provisions specific to state-funded legal aid in criminal proceedings, contained in Articles 76 et seq. of Presidential Decree no. 115 of 2002? And, above all, how should legal costs be managed in such a hybrid context?

The Ruling of the Court of Cassation: A Firm Stance to Protect the Right to Defense

The Court of Cassation, with Judgment no. 24410/2025, provided a clear and reasoned answer, reiterating the importance of safeguarding the right to defense. Here is the legal principle enunciated by the Court:

In the opposition proceedings against decisions rejecting the application for admission to state-funded legal aid, the reference made by Article 99, paragraph 3, of Presidential Decree no. 115 of May 30, 2002, to the special procedure for lawyer's fees, governed by Article 14 of Legislative Decree no. 150 of September 1, 2011, which refers to the simplified cognitive procedure, now regulated by Articles 281-decies et seq. of the Code of Civil Procedure, does not exclude the applicability of the provisions of Articles 76 et seq. of Presidential Decree no. 115 of 2002, which are to be coordinated, for phases not expressly regulated, with the general provisions relating to the main criminal proceedings. (In its reasoning, the Court also affirmed that legal costs are not governed by the civil criterion of losing the case, but by the rules of the criminal procedure code, so as not to prejudice the effectiveness of the right to defense).

This ruling is of fundamental importance. In practice, the Court of Cassation has established that, despite the formal reference to a simplified civil procedure, the specific provisions on free legal aid in criminal proceedings (Articles 76 et seq. of Presidential Decree no. 115/2002) continue to apply. This means that the opposition proceedings, while having procedural aspects of a civil nature, retain their criminal "essence" regarding the substantive regulation of legal aid.

Even more significant is the clarification regarding legal costs. The Court specified that these should not be governed by the civil principle of losing the case, according to which the party that loses the lawsuit is required to pay the legal costs of the other party. Instead, the rules of the criminal procedure code must be applied. This choice is not accidental but is dictated by the need not to "prejudice the effectiveness of the right to defense." Imagine, in fact, if a person who requested free legal aid to defend themselves in a criminal proceeding, and whose application is rejected, were then to bear the costs of the opposition in case of an unfavorable outcome, according to civil rules. This could discourage the use of this essential tool, nullifying the constitutional guarantee.

Practical Implications and Citizen Protection

The Court of Cassation's Judgment no. 24410/2025 strengthens the protection of the right to defense for the less fortunate. Its practical implications are manifold:

• **Normative Continuity:** The provisions of Presidential Decree no. 115/2002 specific to criminal legal aid remain the guiding principle for phases not expressly covered by the summary civil procedure.
• **Cost Criterion:** No civil principle of losing the case. Legal costs in opposition to the denial of free criminal legal aid follow the rules of the criminal procedure code.
• **Effectiveness of the Right to Defense:** The decision aims to remove economic obstacles that could prevent access to justice for those in difficulty.
• **Normative Coordination:** The need to coordinate various normative sources (Presidential Decree 115/2002, Legislative Decree 150/2011, Code of Civil Procedure, Code of Criminal Procedure) is emphasized to ensure complete and coherent protection.

This ruling is part of a line of case law that, as recalled by the Court itself, has already seen consistent precedents (e.g., Cass. no. 9459/2025, Cass. no. 29385/2022), although divergent interpretations have not been absent in the past (Cass. no. 10009/2022), demonstrating the complexity of the matter.

Conclusions

Judgment no. 24410/2025 of the Court of Cassation represents a fundamental piece for the correct application of the institution of state-funded legal aid, especially in the criminal context. By reiterating that the rules of criminal proceedings and Presidential Decree no. 115/2002 prevail, in terms of substantive regulation and cost management, over the formal reference to the summary civil procedure, the Supreme Court has unequivocally sought to protect the constitutional right of every citizen to adequate defense, regardless of their economic condition. For anyone facing criminal proceedings and requiring legal assistance, this judgment offers greater clarity and certainty, ensuring that access to justice is never a privilege, but a fully enforceable right.