Dear friends, today I want to highlight a document that will be very useful to you: order no. 3673/2019 of the Court of Cassation, filed on 7 February 2019.
It establishes a fundamental principle, namely that the defender, in order to have the sums liquidated by the Court, does not have to complete and in sequence all the activities foreseen to recover his credit. In fact, he is not required to demonstrate the lack of wealth or complete inability of his client.
An uncontested injunction and notification of the precept are sufficient elements to request compensation from the State.
This is very important if we consider that in the case of seizures of movable property, the Court often requires, in the absence of the debtor, more visits by the Judicial Officer to the defaulter's home. Naturally, this has always created a problem for the Lawyer who, given the long waiting times of the personnel in charge, after 90 days, found himself having to draft and notify the notice of injunction several times.
In this case, the contested provision itself states that the lawyer “has….usedlessly carried out all the procedural steps necessary for the recovery of the professional debt, by means of the summary procedure resulting in the issuance of the uncontested injunction and has then served a formal notice…despite having proceeded in an enforcement manner…” and this is enough to give the right to compensation from the State, given that no law requires the meticulous performance of all the activities required in succession by the Court in its order (“he has not completed the seizure of movable property activated by accessing the interior of the property where the defendant had elected domicile, to verify the possible existence of movable property that could be usefully seized and has not even attached any inspection of the RRII registry or the PRA….such that he could have legitimately submitted the request for liquidation….only after the seizure of movable property had proved unsuccessful, the subject was found to be devoid of real estate property…and his credit, salary, bank account, etc. reasons which could be attacked in the form of third party seizure were not known”).
In fact, the mechanism referred to in Article 116 of Presidential Decree no. 115/2002 does not postulate the defendant's lack of means nor does it presume his insolvency (and therefore the non-recovery of the credit), but consists in an advance, by the State, of the sum awarded by the judge to the public defender, a sum that the State itself is required to recover from the assisted party (see Cass. pen. no. 46741/2007).
It was also specified that, since the implementation of the summary procedure constitutes a mandatory step in order to request the liquidation of the fees pursuant to the combined provisions of the aforementioned Presidential Decree no. 115 of 2002, articles 82 and 116, the related costs, including expenses, fees and charges, must not remain the responsibility of the professional, but must fall within the scope of those that the treasury is required to reimburse following the payment decree issued by the judicial authority.
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