Case summary

Deciding Body
Tribunal of Milan
Tribunale di Milano
Italy
National case details
Date of decision: 28.06.17
Case status: Final
Area of law
Migration and asylum


Asylum
Safeguards for access to justice
Art. 47, CFREU, Right to access a court

Identification of the case

National law sources
  • Art 76 Presidential decree 115/2002, Italian Code of Civil procedure art. 182
EU law sources
  • art. 21.3 directive 2013/32

Summary of the case

Facts of the case

Under Italian law, a person who intends to bring an action before a court and lacks economic means may address a request for legal aid to the bar association (Consiglio dell’Ordine) which is to be considered as an administrative instance. In case the bar association’s decision is negative, the individual concerned may challenge this decision before the same judge who is competent to render the final decision on the merits of the claim.

Under national law formal and substantive requirements apply to legal aid’s requests. A claimant must allege evidence concerning the lack of economic means. The request must be addressed in a written form and signed by the person concerned. A lawyer must attest the veracity of the signature. Failure to do that is a ground to consider the request inadmissible. Requests for legal aid may be rejected in case the applicant’s appeal appears to be clearly unfounded.

These requirements apply generally to legal aid’s requests, they are not specific to asylum claims.

In the case decided by the Tribunal of Milan, the bar association refused an asylum seeker’s request for legal aid on the grounds that his appeal against the administrative decision was clearly unfounded and that the claimant’s identity and the veracity of his signature had not been attested by a lawyer.

The claimant challenged the decision before the tribunal, which reversed and granted legal aid.

Type of enforcement
  • Civil judicial enforcement
Measures, actions, remedies claimed/applied

The judge grants legal aid, reforming a previous contrary decision of the bas association

Reasoning (legal principles applied)

The judge referred both to Article 47 of the Charter and to Articles 6 and 13 of the ECHR highlighting the fact that the judicial system should be organised so as to guarantee the individual a safeguard against arbitrariness.

According to the judge, the bar association’s decision did not provide any effective motivation on the reasons why the asylum claim should be considered as manifestly unfounded.

Regarding the lack of a lawyer’s confirmation about the identity of the claimant, the judge considers that this omission has been rectified by the introductory act of the judicial appeal. Italian law requires the lawyer to attest the veracity of the client’s signature and identity. Having fulfilled these requirements with regard to the main claim procedure, the judge considered that the formal omissions in the legal aid request have been rectified, given the substantial connection between the two claims.

Role of the Charter and role of the general principles on enforcement

Safeguards for access to justice
  • Explicit reference to Art. 47, CFREU (right to an effective remedy and a fair trial)
  • Right to access a court
Relevance of CFREU and ECHR articles or related rights

The judge referred to Article 47 of the Charter to the extent of considering the current practice of many bar associations - which systematically consider legal aid’s requests to bring appeal against negative administrative asylum decisions as clearly unfounded - to be contrary to the right to an effective remedy. The judge also relies on the same Charter provision to interpret extensively the national procedural rule as to avoid a declaration of inadmissibility, due to the lack of formal requirements in the legal aid request.

Additional notes on the decision

Impact on national case law

The Italian Constitutional Court has had the opportunity to issue some decisions in relation to legal aid provisions in cases involving immigrants. In the Decision No. 144/2004, the Court interpreted broadly the national provisions concerning the admissibility of a legal aid request advanced by an immigrant and it excluded the necessity for him to provide the fiscal code. The Court mentioned the right of defence as set out in Article 24 of the Italian Constitution. In the Decision No. 254/2007, the Constitutional Court deemed a national provision on legal aid unconstitutional for breaching the constitutional right of defence in so far as it did not permit to cover the costs of an interpret assisting a migrant charged with a criminal offense during the trial. The Constitutional Court also referred to Article 6 of the ECHR.

Case author

Dr. Davide Strazzari, Trento University

Published by Davide Strazzari on 17 January 2018