Tuesday, June 16, 2015
The new public defender: the regulation of the National Bar Council
by The Legal Daily
The work that led to the reform of the defense motion is born with the ambition to give a response to a need felt for years: to give back to the people who use the work of the defense counsel of their right to a effective defense. And ‘This is the only key to a reform strongly supported by the National Bar Council and the Union of Chambers Italian criminal, that is the positive outcome of a historic battle, always fought on the ground of the right to effective defense, and in’ exclusive interest of citizens.
The defense motion , it should be remembered and that is what emerges from the Rules for holding the single national list of defense lawyers, fired from CNF following the entry into force of Legislative Decree n. 6 of 2015 (which introduced stricter requirements for access to the defense motion) is a powerful tool for the citizens who use them. For years, however, it was noted that some aspects of the discipline of the institute not only have work but have given real deviations, which effectively canceled the concrete operational the right of defense.
The reorganization of the defense office – contained, as its core, in Articles 97 of the Code of Criminal Procedure and 29 of the implementing provisions of the Code of Criminal Procedure – intervention was therefore no longer be delayed, in order to impress the defense motion to criteria that guarantee effectiveness, to protect the principles of constitutional significance of Articles. 24 and 111 of the Constitution ..
E ‘known that the Law n. 60 of 2001 has produced a sort of legitimization of incompetence, failing to provide appropriate security and efficiency, at a technical level, the public defender. This is because the registration requirements to lists held by the Boards of the Order does not include any type of verification in order to specialized expertise.
The recent reform intervention – through Legislative Decree n. 6 of 30 January 2015 – introduced access requirements of the National List defenders office certainly more appropriate to ensure the expertise of the professional who intends to practice as public defender.
The lists come together now in a single national list, held by the National Bar Council.
The amended article 29 of the implementing provisions of the Code of Criminal Procedure provides three alternative requirements for accessing the National List: the “graduation of specialist in criminal matters “; the proven professional experience , high in five years, with the production of the appropriate documentation to provide evidence of the exercise of the profession in the field of criminal law; participation in training courses and refresher courses every two years, at least 90 hours, organized by the Board of the Order prisons, the Criminal Chambers territorial or Union of Criminal Chambers, and passing an exam final. Will these courses that will form “the new defender of office.”
Another important novelty introduced by Legislative Decree no. 6 of 2015 is the need to prove annually the continuous operation of the profession in the field of criminal law, in order to stay in the List.
The Regulations on the defense motion, drafted by the National Forensic and which will come into force on July 10, reinforces the work aimed at the formation of a public defender stronger, as competent and aware of their delicate role. In particular, it specifies that the orders must be vigilant for the defense motion is carried out with dignity ‘and that it is an effective defense, also urging the correct application – ie limited to cases and for purposes that are proper – Article 97 , paragraph 4, of the Criminal Procedure Code, the rule that allows the court in the absence of the defender to appoint a replacement immediately available which, however, does not know the acts and can not apply for the term in defense under Article 108, Criminal Procedure Code. It is a mechanism which, if used in an excessive and systematic, determines the input in the process of a plurality of substitutes that certainly can not guarantee the accused a defense effective technique. This is a critical issue that compresses the right of defense and that have to be corrected by further legislative action. Therefore it appears to be widely shared attention of the National Bar Council to the phenomenon of so-called substitution “flying”, in respect of the right to a full and effective defense and the most basic standards of legal culture. On this point it is worth remembering that the same European Court of Human Rights, with the judgment 27.4.2006 – Sannino case against Italy – condemned Italy because of the system of defense of the office and in relation to the replacement of absent defender with one designated art. 97, paragraph 4. With this judgment, the Court emphasized the inseparable combination of effectiveness of the right of defense and continuity in the defense.
In particular, the European Court has set the guiding principles very important:
1) There ò that counts is the effettivit a right of defense that can not ò be assured if there is no continuity à defense
2) the ‘ Authority à Judiciary is required to verify that, beyond the A form, the effettivit a defense is guaranteed also in substance.
Pending a reform intervention in order in the fourth paragraph of Article 97 cpp, so be it empowerment Advocacy in order to put a stop to the systematic use of such replacements.
And ‘a must emphasize a further aspect, it pertains specifically to the function of the institution concerned. The defense motion has always created in a part of Advocacy many expectations: the mirage of a breeding ground of compensation, which also easily accessed. It is totally lost the sense of the role that we assume with the registration in the list of defense lawyers. Well, in line with the objectives of the legislature, in the report of the Regulation states that ” the institution of the defense motion is a concrete representation of the social role of Advocacy … “, it is then highlighted the high social function Advocate and the centrality of the defense office in point of protection of the right of defense, and that is always guaranteed to all, especially when it comes to “defense of the past.”
The Union of Criminal Chambers pointed out on several occasions that the recovery of this conception of the defensive function and the role of the lawyer is a difficult cultural battle to deal necessarily. Moreover, there was talk in these terms even in the parliamentary debate that led to the 2001 reform: ” The right process, the adversarial process is a great victory, but both judges, and lawyers must change their culture and adapt it to new conquests ” .
It can say that the reform measures in the field of defense office are certainly an achievement: give us back the idea of a high level of defense and not secondary to the defense trust and, above all, a new defender office, who is actually guaranteeing the loyalty of the state.