The Constitutional Court found No 176 / 2020 Coll.

Paragraph 9 (5) of Decree of the Ministry of Justice No. 177 / 1996 Coll., on the remuneration of lawyers and the compensation of lawyers for the provision of legal services (the legal tariff), as amended, shall be deleted in the words "appointed by the court under the law governing the special procedure 'from the date of the declaration of the finding in the Collection of Laws.

1. Constitutional complaints pursuant to Article 87 (1) (d) of the Constitution of the Czech Republic (hereinafter referred to as "Constitution") and Article 72 et seq. of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court"), registered under Article 7 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitutional Court Act," hereinafter referred to as "the Regional Court," (hereinafter referred to as "the Regional Court") of 28. 8. 2019 No. 13. The General Declaration of Human Rights, the right to protection of property pursuant to Article 11 (1) of the Charter and Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention '), the principle of equality as referred to in Articles 1 and 37 (3) of the Charter and Article 14 of the Convention, the right to judicial protection as referred to in Article 36 (1) of the Charter and to a fair trial as referred to in Article 6 (1) of the Convention, including the principle of equality of parties and the right of business as referred to in Article 26 (1) of the Charter.

2. From the constitutional complaint as well as from the constitutional complaints of the contested decisions, it is submitted that the complainant was appointed, by order of the District Court of 18 May 2018, No 14 Nc 1707 / 2018-4 as guardian of the minor D. P. for the interim measure procedure under Section 469 of Act No. 292 / 2013 Coll., on special legal proceedings, as amended by Act No. 296 / 2017 Coll., ("the Law on special judicial proceedings'). By order of 2 July 2019 No 14 P 347 / 2018- 183, the district court granted him a remuneration for representation of CZK 6,492, which consisted of a remuneration for 5 legal service tasks totalling CZK 2,000, 5x overhead, compensation for missed time and travel expenses. The complainant lodged an appeal against the order of the District Court on the basis of which the Regional Court, by order of 28 August 2019 No 13 Co 242 / 2019-194, amended it by granting the complainant a remuneration and reimbursement of the final expenses of CZK 9,428 (which included a remuneration of CZK 2,400 for 6 legal acts of CZK 400). The two general courts used § 9 (5) of Decree No. 177 / 1996 Coll., on the remuneration of lawyers and the compensation of lawyers for the provision of legal services (the bar fare), as amended, (hereinafter referred to as" Decree No. 177 / 1996 Coll. '), according to which, in the performance of the duties of guardian appointed by the court under the law governing the special procedure, the rate of the non-contractual remuneration is considered to be CZK 1 000, thus, according to § 7 (2) of the Law, the rate of non-contractual remuneration is CZK 500 and under § 12a (1) of the law was reduced by 20%.

3. The Constitutional Court, by decision of 24.9.2019 sp. zn. At the same time, he added that the reasons for the non-constitutionality set out in the finding in the sp. zn. Therefore, if the general courts find in other proceedings which they have conducted that the reasons for non-constitutionality also affect another part of Paragraph 9 (5) of the legal tariff, they will not apply it in a particular case, as they are bound by law and by an international treaty which is part of the legal order.

4. The Third Chamber of the Constitutional Court took the view that, in the preliminary assessment of the Constitutional complaint, part of the hypothesis of Paragraph 9 (5) of the Law on the Law on Special Proceedings, which was used in proceedings before the District Court, sp. zn. 14 P 347 / 2018 and which resulted in proceedings concerning the Constitutional Complaint of Mgr. Pavel Ticháček (the designated guardian) registered under sp. zn. III. ÚS 3872 / 19. For these reasons, the Constitutional Court, by order of 18.12.2019 sp. zn. III. ÚS 3872 / 19 of the proceedings under Paragraph 78 (2) of the Law on the Constitutional Court, as amended by Act No 48 / 2002 Coll., therefore suspended and proposed to abolish the full part of the Constitutional Court.

5. The Constitutional Court pursuant to Article 42 (4) of the Law on the Constitutional Court, as amended by Act No. 77 / 1998 Coll., sent the present application for annulment of the contested provision to the Ministry of Justice (hereinafter referred to as "the Ministry '); The Ministry did not use the opportunity to comment on the proposal.

6. According to Article 69 (3) of the Law on the Constitutional Court, the Constitutional Court sent the application to the Ombudsman with a request for communication as to whether it was intervening. The Ombudsman responded to the call by a letter of 21 January 2020, in which she informed the Constitutional Court that it would not exercise its procedural right under Paragraph 69 (3) of the Constitutional Court Act and would not intervene.

7. In accordance with Article 44 of the Law on the Constitutional Court, the Constitutional Court decided on a case without oral hearing, as it could not be expected to further clarify the case.

8. In the procedure for checking standards pursuant to Article 87 (1) (b) of the Constitution, the Constitutional Court must first examine whether the "other legislation 'has been adopted and issued in a constitutionally prescribed manner pursuant to Article 68 (2) of the Law on the Constitutional Court, as amended by Act No 48 / 2002 Coll.

9. Decree No. 177 / 1996 Coll., as well as Decree No. 390 / 2013 Coll., amending Decree No. 177 / 1996 Coll., on the remuneration of lawyers and the compensation of lawyers for the provision of legal services (legal tariff), as amended, ("Decree No. 390 / 2013 Coll."), on the basis of which the section currently examined under Section 9 (5) was incorporated into the legal tariff, the Ministry of Justice. The powers of ministries to legislate for the implementation of the Act are based on Article 79 (3) of the Constitution. However, this provision of the Constitution is also subject to legal authorisation, and according to the case law of the Constitutional Court, that provision must be interpreted strictly in the sense that that express authorisation must be specific, unambiguous and clear [cf. the finding of 21.6.2000 sp. zn. ÚS 3 / 2000 (N 93 / 18 CollNU 287; 231 / 2000 Coll.)]. If this is the case, the Constitutional Court examines whether the statutory law was issued by a state body entitled to do so and within the limits of its competence, that is, whether, in the exercise of that competence, the ÚS 7 / 03 (N 113 / 34 SbNU 165; 512 / 2004 Coll.) or, for example, the finding of 18.8.2004 sp. zn. Pl. ÚS 19 / 13 (N 178 / 71 SbNU 105; 396 / 2013 Sb.).

10. In the present case, the legal authority is § 22 of Act No. 85 / 1996 Coll., on the Advocacy, as amended. Paragraph 2 of that provision of law until 3 June 2002 was read as follows: "The method of determining the remuneration and compensation of a lawyer and, where appropriate, the amount thereof shall be laid down by the Ministry of Justice by law. 'By 31.3.2006 it was then:" The method of determining the remuneration and compensation of the lawyer, or the amount thereof, shall be laid down by the Ministry of Justice, after prior observations by the Chamber of Justice, by decree. "The text of paragraph 3 of this Article shall be as follows:" The method of determining the remuneration and compensation of a lawyer who has been acting alone or in conjunction with other lawyers (Paragraph 11 (1)) or, where appropriate, the amount thereof, shall be determined by the Ministry of Justice, after prior observations by the Chamber of Justice, by decree.' The Constitutional Court considers this authorisation to be sufficiently specific, unambiguous and clear in its subsequent wording, on the basis of which Decree No 390 / 2013 Coll. containing the contested text was issued. Thus, if the Ministry, by issuing this decree signed by the competent Minister of Justice and duly stated in the Collection of Laws, has adopted the legislation contained in the contested provision, it has done so within the limits of the Constitution laid down by the jurisdiction and by the constitutional procedure.

11. Paragraph 9 (5) of Decree No 177 / 1996 Coll., as amended (including the findings of sp. zn. Pl. ÚS 4 / 19, sp. zn. Pl. ÚS 22 / 19 and sp. zn. Pl. ÚS 23 / 19), reads (marked in bold, the part is proposed to be deleted): "In the performance of the duties of guardian established by the administrative authority of the party, appointed by the court under the law governing the special procedure of the court or tribunal of the party, which has failed to deliver to a known address in a foreign country which has been affected by a mental disorder or which is unable to be clearly expressed as a tariff value of CZK 1 000."

12. The Constitutional Court has repeatedly dealt with the importance of the guardian when representing the party in particular in the court proceedings, including the procedure for checking the standards [cf. He concluded that the legislator's differentiated remuneration for lawyers as guardians of these parties to the proceedings is contrary to the principle of equality - in particular to the appointed representatives under Section 30 of Act No. 99 / 1963 Coll., Civil Code, as amended, (hereinafter "o.s. '). From the case-law of the Constitutional Court, but also of the European Court of Human Rights (" ECHR'), which the Constitutional Court, in the judgment of sp. zn. Pl. On the other hand, however, even a differentiated remuneration cannot be based on any criteria. On the contrary, the criteria on the basis of which different treatment of similar entities in similar (or even identical) situations is based must be at least generally reasonable and objective. However, such criteria were not chosen as guardians in the case of the establishment of a remuneration for lawyers. However, according to the Constitutional Court, Paragraph 9 (5) of the Law Tariff was based on a flat-rate and unfounded assumption of the simplicity and lower financial burden of representing the parties to the unknown residence proceedings by the guardian (point 38 of the decision sp. zn. Pl. ÚS 4 / 19).

13. Although the finding of sp. zn. Pl. ÚS 4 / 19 specifically concerned only the situation where the lawyer represented the party to the unknown stay (for limited active legitimacy at the time of the referring III Chamber of the Constitutional Court), the Constitutional Court stated here that a breach of the principle of equality in the context of remuneration may be fulfilled even when applying another part of the hypothesis § 9 (5) of the Law Tariff. As mentioned above, in the proceedings prior to the current constitutional complaint, Mgr. Pavel Tiháček was appointed guardian of a minor for a preliminary measure procedure under Section 469 of the Law on Special Judicial Procedures. The Constitutional Court considers that even this part of the rule of law hypothesis is based on impossible simplification, where there is no reasonable reason for a guardian who protects the interests of a minor to be awarded a remuneration twice as much as, for example, that of a representative under § 30 ° N.

14. According to the Constitutional Court, the principle of equal treatment following the right to do business and the right to obtain the means of living under Article 26 (1) and (3) of the Charter has also been infringed in this case (cf. paragraphs 18 et seq., of finding sp. zn.

15. Intervention with those fundamental rights must also be seen in the context of the right to legal aid under Article 37 (2) of the Charter. If the legislator determined a significantly lower level of remuneration for a lawyer as a guardian of a minor, or other persons involved in any of the proceedings regulated by the Law on special legal proceedings (e.g. missing persons, persons placed or transferred to a health institution, heirs, deceased spouses etc.), he thus degraded the work of appointed lawyers in such cases against representation in other cases, without any reasonable justification. However, although the Constitutional Court does not doubt that the quality of the legal service performed by the lawyer does not depend primarily on the amount of remuneration granted, the principle that everyone has the right to a fair remuneration for the work done (Article 28 of the Charter) should be respected at the same time and that such remuneration should be for comparable work in such cases.

16. It must be added that it is not essential that legal aid is not provided under a contract, but rather by a court decision, and that by such a decision the State fulfils its obligation to protect the rights of those who cannot defend their own rights sufficiently. It is crucial that the performance (or the fulfilment) of such an obligation is equivalent in substance to the provision of legal aid under the contract and should be proportionate to the payment of the remuneration for such an activity.

17. The link between the remuneration and the level of legal assistance provided by the Constitutional Court for Brief refers in particular to the finding of 13.9.2016 sp. zn. I. ÚS 848 / 16 (N 174 / 82 SbNU 693) and to the already referred finding of sp. zn. Pl. ÚS 4 / 19. In addition to the reasons set out there, the Constitutional Court notes that the conclusions of these findings cannot be understood as meaning that the advocates' conduct of the advocacy (which in this context includes the exercise of custody) would be carried out in a separate manner from any ethical aspects and from the principle of their belonging to the functioning of a democratic society (to which they should contribute). On the other hand, the conclusions of the Supreme Court judgment of 21 January 2015, sp. zn. 33 Cdo. 4495 / 2014, according to which the conduct of advocacy is a special business activity, which is not only regulated by law, but is significantly modified by state regulations. According to them, a lawyer must not, in particular, diminish the dignity of the state of law, he is obliged to comply with the rules of ethics and competition, with the fact that even a self-governing organisation of lawyers can decide that a lawyer is obliged to provide legal services to his designated client in a specified case free of charge or for reduced remuneration. The exercise of advocacy is therefore indeed a special activity strongly influenced also by generally accepted rules of decency and ideas about what is moral and what is no longer. On the other hand, the advocacy is still designed as a service provided for (adequate) remuneration even with the fact that, although the State does not guarantee the achievement of profit, [cf. the finding of 22 October 2013 sp. zn. However, the actual fulfilment of moral correctness (including the pursuit of profit) may, according to the Constitutional Court's conviction, be made in relation to the issue of the remuneration of guardians under consideration, inter alia, if the addressees of the rights and obligations of the legislation in question (lawyers) perceive them as fair and legal aid for reduced remuneration or without entitlement to it, in particular by virtue of their own decision. The task of the State is to contribute to the natural acceptability of the rules as much as possible, including, for example, by the deregulation of a provision by the Constitutional Court which does not comply with constitutional order.

18. For all these reasons, the Constitutional Court finds that, if the legislator has established a lower remuneration to be received by a lawyer appointed by a court under a law governing specific court proceedings, it has infringed the principle of equality (Articles 1, 3 (1) of the Charter) following the right of business and the right to obtain funds for its life-long needs by works under Article 26 (1) and (3) of the Charter. Therefore, pursuant to § 70 (1) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the Constitutional Court decided to abolish the contested words in the provision of § 9 (5) of the Law on the date of the publication of this finding in the Collection of Laws.