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Italy: Protection of Minors Orphaned by Domestic Violence

(Feb. 28, 2018) On February 16, 2018, new legislation on the protection of minors orphaned by domestic violence crimes entered into force in Italy. (Law No. 4 of January 11, 2018, Amendments to the Civil Code, Criminal Code, Code of Criminal Procedure and Other Provisions for the Benefit of Children Orphaned by Domestic Violence Crimes) (Law No. 4), GAZZETTA UFFICIALE (G.U.) (Feb. 1, 2018), Normattiva website (in Italian).)

The purpose of the new Law is to provide legal protection and assistance to orphans who are the victims of certain domestic violence crimes and who, in addition to the suffering caused by the crimes, experience other highly adverse economic and practical consequences. (Andrea Lebra, Orfani per Crimini Domestici [Children Orphaned by Domestic Crimes], SETTIMANA NEWS (Dec. 26, 2017).

Access to Pro Bono Services for Children Orphaned by Domestic Violence Crimes

The Law extends the benefit of pro bono representation by a government attorney for both criminal and civil procedures to minor children and adult children who are not financially self-sufficient, regardless of income. (Law No. 4, art. 1(1).) The pro bono representation applies when the beneficiaries become one-parent orphans as a result of a homicide committed by the spouse of the deceased parent, regardless of whether the two were separated or divorced before the homicide took place, or even if their civil union had already ceased. Orphans are also eligible for pro bono representation when the person who committed the homicide was in an emotional relationship with the deceased and stably cohabiting with him or her. (Id.) In such cases, the district attorney may ask the judge to order the preventative seizure of real estate or movable assets belonging to the accused or of sums owed to him or her. (Id. art. 3(1).) Also in such situations, the judge must issue a preliminary judgment awarding civil damages of not less than half of the presumed damages to the minor children or adult children who are not financially self-sufficient. (Id. art. 4(1).)

The regions and autonomous local jurisdictions of the country may organize and provide services for minors who were orphaned through domestic violence, including, pro bono legal services and assistance. (Id. art. 8(1)(a).) Under the new legislation, minor children and adult children who are not financially self-sufficient who were orphaned through domestic violence can receive free medical and psychological assistance from the National Health Service for the entire time necessary for their recovery. (Id. art. 9(1).)

Unworthiness to Succeed

The Law suspends the right of a married or legally separated spouse or member of a civil union who is under investigation for the manslaughter or tentative homicide of his or her partner to succeed the deceased until a temporary or permanent acquittal order is issued. (Finalmente è Legge la Tutela degli Orfani dei Crimini Domestici [The Protection of Children Orphaned by Domestic Crimes Is Finally Law] Studio 3A (last visited Feb. 26, 2018); Law No. 4, art. 5(1), ¶ 1.) The same measure applies to persons investigated for the manslaughter or tentative homicide of one or both parents, or a brother or sister. (Id. art. 5(1), ¶ 2.) A conviction permanently terminates the right of the convicted to succeed the victim. (Id. art. 5(2).)

Right to Pension

The new Law suspends until the final judicial sentence the right to certain pensions benefitting the married, legally separated, or divorced spouse, and the partner in a civil union, even if the civil union has ceased, when that party is accused of homicide. (Id. art. 7(1), ¶ 1.) During the period of the suspension, minor children or adult children who are not financially self-sufficient receive the proceeds of those pensions without an obligation to restitute the amounts if an acquittal sentence is later issued. (Id. art. 7(1), ¶ 2.) Minor children or adult children who are not financially self-sufficient also have a right to receive those benefits assigned to the parent who has been accused of the homicide of the other parent. (Id.)

Entrustment of Minors Orphaned by Domestic Crimes

In deciding the custody of minors orphaned by the death of a parent caused intentionally by the victim’s married, legally separated, or divorced spouse, or by the other party to the civil union even if the civil union has ceased, or the current or past concubine or person emotionally connected to the parent, the judge must prioritize the affective relationship between the orphan and his or her relatives up to the third degree and ensure, to the extent feasible, that siblings remain together. (Id. art. 10(1).)

Rotative Solidarity Fund for Victims of Mafia Crimes and Victims Orphaned by Domestic Crimes

The Law provides for the incremental disbursement of funds allocated for scholarships for orphan minor children and adult children who are not financially self-sufficient who are the victims of domestic crimes, as well as for financing other support initiatives. (Id. art. 11(1).) The Law also renames the existing fund to “Rotative Fund for Solidarity with the Victims of Mafia Crimes, Extortion Demands, Usury, and Intentional Violent Crimes and for Children Orphaned by Domestic Crimes.” (Id. art. 11(4).)

Loss of Rental Benefits for Perpetrators of Domestic Violence Crimes

Perpetrators of domestic violence crimes are also subject to additional penalties, including the loss of the rental subsidy for public housing, when the crimes are committed within the family, or involve currently or previously related persons, or those linked by marriage, civil unions, or an affective relationship, independently of the fact of cohabitation, whether current or past. (Id. art. 12(1).)

Change of Name by Orphans

Orphaned children who share the last name of the parent convicted of killing their other parent may request that their last name be changed. (Id. art. 13(1).)