State-funded legal aid.

Written by Susanna Pisano

Decision of the Constitutional Court n. 1/2021

With its first sentence of 2021 [1], Consulta declared without fundament the argument about constitutional legitimacy of art. 76, subparagraph 4-ter, of 30 May 2002 D.R.P., n. 115, bearing laws and regulations in the field of Court costs, in the section where it is determined the automatic admission to state-funded legal aid for the victim of crimes specified in this same rule, referring to art. 3 and 24, subparagraph 3, of the Constitution.

In accordance to this regulation, in fact, the admission to the state-funded legal aid of the victim of provided crimes – regarding family abuse and sexual violence – is determined automatically without any discretional evaluation regarding income, which are mandatory for other crimes.

In the present case, the person victim of the crime (“sexual violence”) had asked for the state-funded legal aid without sharing her income threshold. With sentences n. 13497/2017 and n.2822/2018, Court of Cassation accorded the injured party’s right to benefit from state-funded legal aid, without income limitations, because the aim is to ensure victims of the specified offenses an access to justice fostered by the gratuity of legal aid.

The issued posed to the Consulta’s attention regard the norm compatibility with Constitution’s art.3 for assumed disparity of treatment consequent to denying to the Judge the evaluation of the applicant’s financial conditions; and with art.24, to prevent indiscriminate admission and an unjustified extention of this entitlement to undeserving people, with a possible negative effect on limiting public spending on justice.

The rejection of both arguments raised by the Constitutional Court, since neither the principle of reasonabless nor the principle of equal treatment have been violated, is a clear sign that the legislator’s goal to create a more effective support system for women and children victims of abuse, encouraging the reporting of such episodes, has a precise intention to bring visibility to violence and fight it, also by changing social context and stigma.

Sexual and domestic violence’s victims’ extreme vulnerability, together with the need to ensure maximum emergence of those crimes, legitimize the decision, which is neither irrational nor contrary to the principle of equal treatment.
Thinking about previous similar choices made by the legislator regarding state-funded legal aid, it was specified that this benefit does not presume that victims are in a condition of scarce income, but is instead linked to their proved vulnerability.

This decision’s relevance goes beyond the procedural field, since it shouldn’t be excluded the possibility that State-funded legal aid could fulfil other purposes to guarantee equality, like for example supporting vulnerable people in their access to justice (art.3 Constitution). Identifying the fragility of specific crimes’ victims as the reason to derogate from the general rule of income limitations is a clear indicator of the legislator’s intention to support such victims, also to counter the fear of denouncing and the difficulty to bring visibility to those abuses.

Now it is open the evaluation of other situations of equal vulnerability, to ensure that legal aid can be accessed by everyone in a situation comparable to the one described in art.76, subparagraph 4-ter. Deserving of further examination is, for example, the case of gender discrimination, in particular in the workplace. The Code of Equal Opportunities offer a clear picture of direct and indirect gender discrimination and harassment, also sexual, in the workplace, and provides legal remedies to prosecute discriminatory acts.

The responsible body for going to court on behalf of or together with the victim is the Counselor for Equal Opportunities’ Office. This Office, however, private since 2012 National Allocation Fund’s Finanziaria, is not equipped with the necessary resources to pursue this role, making legal complaints extremely difficult if not impossible.

Victim’s vulnerability is inherent not only to the gravity of the abuses, but also to the power dynamics of the workplace and the strong pressures to remain silent. The admission to the State-funded legal aid, with no income limitations, both for the victim and for the Counselor for Equal Opportunities can find its reasons in Consulta’s decisions and establish a derogation from the norm.

Notes:

[1] Constitutional Court Sentence n.1 3 December 2020, published 11 January 2021.

[2] D.L. 23 February 2009, n.11 (Urgent measures related to public safety and fight against sexual violence, and also in the matter of persecutory acts), converted with changes in law n. 38, 2009; D.L. 14 August 2013, n. 93 (Urgent measures related to safety and fight against gender violence, and also in the matter of civil protection) converted with changes in law n. 119, 2013.

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