Introduction

 On 11 December 2025, the European Court of Human Rights (ECtHR) issued its judgment in the case Diaco and Lenchi v. Italy, pronouncing a unanimous condemnation against Italy. The case raises questions of fundamental importance regarding the compatibility of the State's bureaucratic delays in compensation for legal aid, commonly referred to as gratuito patrocinio, with the protections established by the European Convention on Human Rights (ECHR). The ruling, issued by the First Section of the ECHR, focuses specifically on the application of Article 1 of Protocol No. 1 to the Convention, which guarantees every natural or legal person the right to protection of their property. The importance of this sentence lies in the characterization of these administrative delays as a structural and endemic malfunction of the Italian judicial system. According to the Strasbourg judges, these are not isolated incidents, but rather a widespread practice that imposes a disproportionate financial burden on professionals, with the risk of undermining the very effectiveness of the right to defense for disadvantaged citizens.

The facts of the case

The subjects of the case are two Italian lawyers, Giuseppe Diaco and Maria Alessandra Lenchi, who turned to the ECtHR complaining about the impossibility of collecting within a reasonable time the professional fees credited through them through court orders. The applicant Giuseppe Diaco provided his professional assistance in thirty-two different criminal proceedings, obtaining as many payment orders issued by the competent judicial authorities. The applicant Maria Alessandra Lenchi instead acted as defense counsel in civil proceedings, obtaining a payment order from the Court of Vigevano, issued on June 26, 2013, and filed with the registry on July 3, 2013.

The ordinary domestic law procedure provides that, once the liquidation decree has been issued, in accordance with the Presidential Decree of 30 May 2002 number 115 called Testo Unico in materia di spese di giustizia, the parties have thirty days to file an objection. If this deadline is not met, the decree becomes final, and the registry authorizes the professional to transmit the relevant electronic invoice for the payment. However, the evidence shows that actual payments were made with systematic delays ranging from just over a year to approximately four years.

The situation of Maria Alessandra Lenchi exemplifies the management inefficiencies of the judicial offices. Following repeated email exchanges with administrative staff seeking payment for the 2013 decree, the professional was informed that her paper file had been lost. Only in 2016 was the file reconstructed, allowing the decree to become enforceable on October 20, 2016. Subsequently, in May 2017, the Court of Milan informed the applicant that the ministerial funds allocated for the payment of 2013 overdue invoices were not yet available. The credit was actually paid only on September 15, 2017, more than four years after the initial filing of the judicial order.

The legal questions raised

The core of the legal debate before the ECtHR concerned the existence of a violation of property rights and the nature of the claims asserted by the professionals. The applicants argued that the payment orders issued by the judicial authorities fully correspond to the concept of property protected by Article 1 of Protocol No. 1, as they constitute certain, liquid, and enforceable debt instruments recognized by the State. Furthermore, the applicants alleged a violation of Article 6.1 of the Convention due to the excessive length of the enforcement phase and of Article 13 due to the lack of a domestic remedy that would allow them to obtain rapid satisfaction of their economic rights.

The Italian government challenged the applicants' arguments, raising a preliminary objection of inadmissibility due to failure to exhaust domestic remedies. According to the government's argument, the professionals should not have limited themselves to requesting payment through administrative channels, but should have initiated formal judicial proceedings to obtain an injunction or initiate enforcement proceedings against the state administration in order to hasten collection. On the other hand, third-party intervening organization Union of Italian Criminal Chambers (UCPI) filed observations in support of the applicants, highlighting how the chronic delay in issuing decrees represents an invisible barrier that discourages lawyers from registering on the legal aid lists, ultimately damaging the defense rights of the most vulnerable individuals.

The reasoning of the court

In developing its reasoning, the ECtHR first examined, ex officio, the question of its own jurisdiction ratione materiae and the applicability of Article 1 of Protocol No. 1. The Strasbourg judges reiterated that the concept of property has an autonomous meaning that is not limited to the ownership of physical things, but also includes specific rights and claims with a consolidated economic value. For a claim to be protected, it must have a sufficient legal basis in domestic law. In the present case, the Court found that the payment order issued in accordance with the Testo Unico sulle spese di giustizia constitutes a formal title certifying the existence of a due claim against the State. This qualification finds definitive confirmation in the consolidated case law of the Italian Court of Cassation, which, through the ruling of the United Sections number 19161 of 2009and the ruling number 17668 of 2019, has expressly established that the professional requesting liquidation is the holder of a full subjective patrimonial right, deriving from a decisional and jurisdictional provision.

Secondly, the Court rejected the Italian government's objection regarding the failure to exhaust domestic remedies. The judges clarified that, according to the principles of international law, when a citizen has a legally recognized and quantified claim through a judicial order issued against the State, he or she cannot be required to file a new enforcement or injunction to compel the public administration to fulfill its obligations. The State has the primary duty to enforce binding orders issued by its courts, acting on its own initiative and disbursing the amounts due promptly.

Regarding the violation, the Court introduced a fundamental criterion for measuring delays in the context of legal aid. The starting point of the delay must be the date of filing of the payment order with the clerk of the court, since it is at that precise moment that the judicial authority formally recognizes the State's financial obligation. Subsequent activities, such as notification to the parties or issuance of the invoicing authorization, constitute purely internal administrative obligations, for which the professional cannot be held responsible. Subtracting the thirty-day deadline provided by law for any objection from the total calculation, the Court found delays ranging between one and four years. Recalling its standards, the Court established that a delay in the execution of state payments should not exceed a total of twelve months, ideally divided into six months for the completion of administrative checks and six months for payment of the invoice. Consequently, the timeframes established in the case were deemed prima facie unreasonable, resulting in a serious institutional failure that imposed an excessive and disproportionate burden on the applicants. For these reasons, the Court declared a violation of Article 1 of Protocol No. 1, awarding Giuseppe Diaco and Maria Alessandra Lenchi compensation for non-material damages of €7,200 and of €1,000, respectively.

The implications for the italian law

The impact of the case Diaco and Lenchi v. Italy has a significance that goes beyond the interests of individual applicants. The ECtHR noted that the dysfunctions examined reflect a general and structural problem. The statistics produced by the Government and the supplementary data provided by the UCPI reveal enormous disparities and chronic delays widespread across Italy's judicial districts. For example, at the Court of Rome, the average time between the submission of the invoice and final payment exceeded fourteen months in 2018, excluding the entire preceding administrative phase. Similar critical situations were recorded in the districts of Milan, Bologna, Campobasso, and Turin, primarily caused by the systematic underfunding of Ministry of Justice expenditures and the chronic shortage of administrative staff in the clerks of courts.

The Court took note of the reform attempts implemented by the Italian legislature, such as the introduction of the Article 1, paragraph 778, of Law 28 December 2015, number 208, which allows lawyers to offset legal aid credits against their tax and social security debts within a total spending limit of ten million euros per year. Similarly, the digitalization of procedures introduced by the Decree Law 16 July 2020 number 76, aimed at speeding up the electronic submission of applications. However,the UCPI has demonstrated how the tax offset tool is largely underutilized due to its procedural complexity and the limited timeframe for access, which is only open from March 1st to April 30th of each year. Furthermore, the agreements entered into by the National Social Security and Assistance Fund for Lawyers (Cassa Nazionale di Previdenza e Assistenza Forense) to allow bank advances of up to 80% of the fees demonstrate how the economic cost of government delays is unfairly passed on to professionals through the payment of commercial interest.

Pursuant to Article 46 (binding force and enforcement of judgments) Italy is now subject to the supervision of the Committee of Ministers of the Council of Europe and is required to adopt appropriate general measures. The State must comprehensively and statistically analyze the causes of delays in individual Court of Appeal districts, ensuring stable and sufficient funding in ministerial budgets to eliminate the backlog and ensure compliance with the timeframes established by European case law.

Some relevant jurisprudential precedents

The ruling in question fits into a consolidated European jurisprudence that equates the failure or delay in the execution of a debt instrument with a violation of the right to respect for property. Regarding the definition of protectable patrimonial interest, the judges cited the ruling issued in the case Viaşu v. Romania and the sentence of the case Buffalo S.r.l. in liquidation v. Italy, which established that pecuniary claims legally recognized by domestic law fall fully within the scope of the Convention's patrimonial protection. With regard to the definition of the reasonable duration of enforcement proceedings against public administrations, the references are the fundamental judgments in the cases Bourdov v. Russia and Gerasimov et al. Russia. In these cases, the ECHR has ruled that a delay of more than twelve months in the payments owed by the State is to be considered unreasonable, unless exceptional and specific circumstances exist. With direct reference to the Italian legal system, the Court cited the Grand Chamber judgment in the case Cocchiarella v. Italy, in which the State had already been sanctioned for chronic delays in paying the compensation provided for by the Pinto law. Finally, on the level of the social value of the legal profession, the historical rulings in the cases Airey c. Ireland and Aerts vs. Belgium remain as a point of reference for affirming that free legal assistance must be guaranteed in a concrete and effective way, since economic or bureaucratic obstacles transform conventional rights into purely theoretical or illusory protections.

Conclusion

The ruling in Diaco and Lenchi v. Italy is a stark reminder to Italian institutions of the need to preserve the efficiency of the administrative and judicial system, in accordance with the principles of the rule of law. The legal aid system is not merely a discretionary financial benefit, but rather a cornerstone of the Italian constitutional architecture, solemnly protected by Article 24 of the Constitution, which guarantees lower income individuals the means necessary to bring legal action and defend themselves before any jurisdiction. It is the primary instrument for removing the economic obstacles that impede the full development of the human person and the substantive equality of citizens. Harming the legal profession by imposing unreasonable waiting times for the collection of fees compromises the economic sustainability of the profession and, consequently, undermines the quality of legal representation offered to vulnerable individuals. If the State fails to promptly remunerate public defenders and advocates, the inevitable consequence will be the gradual abandonment of these lists by qualified professionals, threatening effective access to justice. It is hoped that the Italian government will fulfill its obligations under the ECHR ruling by implementing a financial allocation plan and structural reforms capable of re-establishing a proper balance between budgetary needs and the inviolable protection of fundamental rights.