The Constitutional Court found no 28 / 2020 Coll.
The Constitutional Court's finding of 14 January 2020, sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
06.02.2020
28
FIND
The Constitutional Court
On behalf of the Republic
On 14 January 2020, the Constitutional Court decided, under point Pl.
as follows:
Paragraph 9 (5) of the 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, cannot, in words "or for other health reasons, not only take part in proceedings for a transitional period ', be deleted from the date of the declaration of findings in the Collection of Laws.
Reasons
Recapitalisation of proceedings and constitutional complaints
1. The Constitutional Court received a constitutional complaint from Mgr. The complainant requests the annulment of the order of the Regional Court in Brno of 20 June 2019 No 38 Co 91 / 2019- 92 and the order of the District Court of Hodonín of 16 April 2019 No 10 C 37 / 2017- 86, since it considers that they infringed its right to judicial protection under Article 36 (1) et seq. The Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter) and the right to the protection of property pursuant to Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms.
2. From the constitutional complaint, as well as from the requested court file of the District Court in Hodonín, it is submitted that the defendant was appointed as guardian of the Regional Court in Hodonín as a guardian of the defendant P. K., a civil court order, as amended, (hereinafter referred to as "o.s.,") because he is unable to participate for health reasons - Parkinson's disease, dementia, Alzheimer's disease - not only after a transitional period of legal proceedings, by order of the District Court of Hodonín of 6 June 2018. Even though the prosecutor K. H. was obliged to pay the Czech Republic an amount of CZK 25 920 in this case by another court decision. It follows that this higher amount corresponds to the remuneration and reimbursement of the costs of the lawyer representing the party in accordance with the Order 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 bar tariff), as amended, (hereinafter referred to as "the bar tariff '). Nevertheless, the complainant received an amount of CZK 3 805 from the Czech Republic and not an amount of CZK 25 920. In so doing, the rights and obligations of the guardian provided for in Paragraph 29 (3) (a) above are substantially identical to the rights and obligations of the representative of the party appointed by the court under Paragraph 30 (2) (a) and therefore it is not clear why the difference is being made in this respect.
3. The Regional Court in Brno subsequently confirmed by the contested resolution that the calculation of the District Court corresponds to the content of the file and the actions taken by the contested decision to appeal the complainant. It was alleged that the applicant was ordered to pay the Czech Republic for the costs of the proceedings of CZK 25,920 that he could not take into account, since this objection was directed against the operative part of another decision which was not the subject of the present proceedings.
4. In a constitutional complaint, the complainant reiterates the inequality in the remuneration of lawyers as appointed guardians and appointed representatives. In the case from which the two contested decisions arose, this was the case of a participant who, for health reasons, was not only able to take part in the proceedings for a transitional period. The complainant contacted the daughter of the representative with whom he met and sought further information beyond the information contained in the file. On the basis of this information, he made observations on the application. He believes that he, too, was fully successful in the matter. Nevertheless, the compensation was reduced by reference to § 9 (5), § 7 (2) and § 12a of the legal tariff. The complainant considers the procedure of the court to be incorrect, only because the conduct with the person represented and the conduct by other persons and the finding of facts beyond the content of the file does not make any difference to the work of the lawyer established under Paragraph 30 (2) CS. Moreover, the district court ordered the claimant to pay the State an amount of remuneration which he had not paid to the complainant himself and therefore did not pay.
5. The District Court expressed its views on the constitutional complaint by referring completely to the grounds for the contested decision; The Regional Court also referred to the contested decisions and proposed to reject the constitutional complaint as manifestly unfounded.
Procedure II of the Constitutional Court Chamber
6. It follows from the foregoing that the provisions of Paragraph 9 (5) of the Law on the Law governing the criminal liability of legal persons appointed by the Court under the Law governing special proceedings by a court or tribunal of a party whose residence is not known, who has not been able to deliver to a known address abroad, which has been affected by a mental illness or for other health reasons, are applied in the complainant's case. "
7. The Constitutional Court, by a finding of 24.9.2019 sp. zn. Pl. ÚS 4 / 19 (302 / 2019 Coll.), annulled the provisions of Paragraph 9 (5) of the Law Tariff in the words "the residence of which is unknown," since it concluded that this part of it is inconsistent with the principle of equality in relation to Article 26 (3) of the Charter and with the right to legal aid pursuant to Article 37 (2) of the Charter, for reasons which it had detailed in its judgment. At the same time, he added that these reasons of inconstitutionality may also affect other parts of the hypothesis § 9 (5) of the legal tariff. Therefore, if the general courts find in other proceedings that the reasons for non-constitutionality also affect another part of the provision of Paragraph 9 (5) of the Law Tariff, they will not apply it in a particular case, as they are bound by law and by an international treaty which forms part of the rule of law.
8. II. The Chamber of the Constitutional Court, in the preliminary hearing of a constitutional complaint, considered that part of the hypothesis of Paragraph 9 (5) of the Law Tariff in words "or for other health reasons it cannot, not only for a transitional period, take part in proceedings' which were applied in the above described proceedings before the District Court of Hodonín and which resulted in proceedings concerning the constitutional complaint of Mgr. Adam (appointed guardian). Therefore, by order of 22.10.2019 sp. zn. II. ÚS 2687 / 19 of the procedure laid down in § 78 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 48 / 2002 Coll., he suspended and proposed to abolish the full part of the Constitutional Court.
Position of the Ministry of Justice and Ombudsman
9. The Constitutional Court pursuant to Article 42 (4) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 77 / 1998 Coll., sent the present application for annulment of the contested provision to the party to the proceedings to the Ministry of Justice (hereinafter referred to as "the Ministry"), which did not, however, make use of the opportunity to comment on the application.
10. The Constitutional Court pursuant to Paragraph 69 (3) of the Law on the Constitutional Court sent the application to the Ombudsman with a request for communication as to whether it was intervening. The Ombudsman responded to that call by a letter of 18.11.2019, in which she informed the Constitutional Court that she would not exercise her right to intervene.
Oral proceedings
11. 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.
Constitutional and legal conditions for the adoption of the contested provision
12. In the procedure for checking standards under Article 87 (1) (b) of the Constitution of the Czech Republic, the Constitutional Court under Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., must first examine whether the "other legislation 'has been adopted and issued in a constitutional manner.
13. Decree No. 177 / 1996 Coll., as well as Decree No. 276 / 2006 Coll., amending Decree No. 177 / 1996 Coll., on the remuneration of lawyers and the compensation of lawyers for the provision of legal services, as amended, pursuant to which the part of Section 9 (5) under review has now been incorporated into the legal tariff, has been issued by 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 at the same time conditional on the existence of a legal authorisation and its limits, whereas 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 SbNU 287; 231 / 2000 Sb.)]. 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.).
14. 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 read 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 laid down by the Ministry of Justice, after prior observations by the Chamber of Justice, by decree.' The Constitutional Court considers that authorisation to be sufficiently specific, unambiguous and clear. 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.
Derogation of the contested provision (its relevant parts)
15. Paragraph 9 (5) of Decree No 177 / 1996 Coll., as amended, [including the finding of sp. zn. Pl. ÚS 4 / 19 (302 / 2019 Coll.)], which includes the part of the hypothesis proposed for annulment: "In the performance of the duties of guardian established by the administrative authority of the party, established by the court under the law governing the criminal liability of legal persons appointed by the court under the law governing the special procedure of the court or tribunal of the party, which has not been able to deliver to a known address in a foreign country, which has been affected by a mental disorder or for other health reasons, it cannot, for a transitional period, or is not able to express itself, is regarded as a tariff value of CZK 1 000."
Evaluation of the Constitutional Court
16. As indicated above, the Constitutional Court has already dealt with a similar issue in the procedure for the control of standards, in relation to a different remuneration for lawyers as guardians of parties whose residence is unknown, pursuant to the same provision of Paragraph 9 (5) of the Law Tariff as now (only in another part of the hypothesis). He concluded that the legislator's differentiated remuneration for the lawyers as guardians of these parties is contrary to the principle of equality - in particular to the established representatives under § 30 o s. s. s. o z jurisprudence of the Constitutional Court, but also to the European Court of Human Rights, which the Constitutional Court found in sp. zn. 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 (expressly point 38 of the decision sp. zn.
17. Although the finding of sp. zn. Pl. ÚS 4 / 19 specifically concerned only the situation in which the lawyer represented the party to the proceedings for unknown residence (for limited active legitimacy at the time presenting the III Chamber of the Constitutional Court), the Constitutional Court stated here that a breach of the principle of equality in the context of remuneration could be fulfilled even when applying another part of the hypothesis of the provision of § 9 (5) of the Law Tariff. As mentioned above, Mgr. An Adam appointed guardian to the defendant suffering from permanent degenerative brain damage, which severely limits his mental capacity and his ability to move. 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 severely ill person (since it is only in such cases that the provision of a guardian comes into view for health reasons), a remuneration of more than twice as much as that of a representative under § 30 o. p.
18. In this case, too, the principle of equality has been infringed following the right to do business and the right to obtain funds for the life needs of the work referred to in Article 26 (1) and (3) of the Charter, in the form of an dependent activity such as an employed lawyer or as a lawyer practising an advocate in a commercial company, or in the form of a business, while the Constitutional Court understands the right to do business as one of the possibilities of obtaining funds for the living needs of the work.
19. Intervention into these fundamental rights must also be seen in the context of the right to legal aid under Article 37 (2) of the Charter. In fact, if the legislator determined a significantly lower level of remuneration for lawyers as guardians of the parties to the proceedings, whose other health reasons prevent them from taking part in the proceedings for a transitional period, it degraded the work of the designated lawyers in these cases from 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.
20. To that end, it must be added that it is not essential that legal aid is not provided on the basis of a contract, but rather a court decision, and that such a decision is the responsibility of the State 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.
21. 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 sp. zn. I. ÚS 848 / 16 of 13.9.2016 (N 174 / 82 CollNU 693) and to the finding of sp. zn. In addition to the reasons set out there, the Constitutional Court notes that these findings certainly cannot be read in such a way that the advocates' conduct of the advocacy (where the exercise of custody in this context also belongs) is carried out in isolation from any ethical aspects and apart 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, be obliged to comply with the rules of ethics and competition, even if 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. 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.
Conclusion
22. For all these reasons, the Constitutional Court notes that if the legislator has established a lower remuneration to be received by a lawyer as guardian of a person who, for other health reasons, is unable to take part in proceedings for a transitional period, it has infringed the principle of equality (Article 1, Article 3 (1) of the Charter) following the right of business and the right to obtain funds for his life needs under Article 26 (1) and (3) of the Charter. Therefore, pursuant to § 70 (1) of Act No. 182 / 1993 Coll., 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.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no 28 / 2020 Coll., on the application for annulment of Section 9 (5) of 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 |
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| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 06.02.2020 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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