Why defend criminal defendants? A constitutional perspective on the right to a legal defense

Undoubtedly, the most frequently asked question to a criminal defense attorney is how they can undertake the defense of a person accused of committing one or more crimes, especially when these are particularly serious (such as murder, sexual offenses, organized crime, etc.).

An authoritative response can be found in Article 24, Paragraph 2 of the Italian Constitution, which succinctly states: “The right to defense is inviolable at every stage and level of the proceedings.”

This provision crystallizes a principle of profound legal civilization, intended to prevent the risk that an erroneous or false accusation (which is not uncommon, as in emblematic cases of mistaken identity or allegations based on false testimony) could result in the conviction of an innocent person. To avoid such a danger, a general and inalienable right to defense has been established.

The same need for justice underlies the recognition of the right to defense in cases where—at least seemingly—there is no doubt about an individual’s criminal responsibility (consider the case of a confession). Even in such circumstances, it is necessary to ensure full and effective legal protection, so that if a conviction is reached, the penalty imposed is “just,” i.e., appropriately proportionate to the crime actually committed.

For example, involuntary manslaughter, which is not intended, should and must be punished with the penalty provided by the Penal Code for that offense and not with the more severe penalty for voluntary manslaughter. Similarly, a theft committed in broad daylight should be punished as such, without applying the increased penalty provided for theft committed at night.

The defense, as a general and inalienable right, and its principal actor—the criminal defense attorney—therefore play a crucial role in fulfilling the demands of justice that characterize and define a state as a “rule of law,” based on legal norms and, in general, on principles of fairness and objectivity (including punitive measures).

Founding Attorney

Jacopo Antonio Ahmad

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