Communication from the Constitutional Court No 290 / 2015 Coll.
Communication from the Constitutional Court of the Opinion of the plenary of the Constitutional Court on the representation of lawyers as parties or interveners before the Constitutional Court
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Communication from the Constitutional Court
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03.11.2015
290
COMMUNICATION
The Constitutional Court
On 8 October 2015, the Plenum of the Constitutional Court was adopted by Louis David, Jaroslav Fenyk, Jan Filip, Jaromír Jirsa, Vladimir Krórek, Jan Musil, Pavel Rychetský, Vladimir Sládeček, Kateřina Šitáková, Vojtěch Šimělek (Judge's Rapporteur), Milada Tomková, David Uhíř and Jiří Zemánek on the proposal of the Second Chamber of the Constitutional Court, pursuant to Article 23 of Law No. 182 / 1993 Coll., on the Constitutional Court, in the matter of the Legal Opinion of the Second Chamber of the Proceedings of the General Court of the Constitutional Court of the Constitutional Court of the Constitutional Court of Justice of 21 May 1996.
the following opinion:
If the party or intervener is a lawyer before the Constitutional Court, he may not be represented by another lawyer under the provisions of Paragraph 30 (1) of the Law on the Constitutional Court.
Reasons
The facts of the case
1. The Constitutional Complaint, which was received by the Constitutional Court on 1 July 2015, seeks the annulment of the order of the Municipal Court in Prague confirming the decision of the Court of First Instance, which rejected the complainant's action because, despite the Court's call, he did not complete his (allegedly) incomprehensible and unclear submissions.
2. One of the legal preconditions for the substantive examination of a constitutional complaint is for the complainant to be represented by a lawyer to the extent provided for by specific provisions - see the provisions of § 30 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 83 / 2004 Coll.
3. According to the opinion of the plenary of 21.5.1996 sp. zn. Pl. ÚS-st. 1 / 96 (ST 1 / 9 SbNU 471), this obligation also applies to complainants. In that opinion, the Constitutional Court pointed out that the purpose and purpose of the rule cited was to lay down a general obligation to be legally represented in proceedings before the Constitutional Court, without differentiation in the light of the type of proceedings before the Constitutional Court, as well as the type of proceedings before it, and at the same time without differentiation of the obligation of legal representation depending on the degree of legal qualifications of the parties or interveners. The purpose and purpose of the general obligation of legal representation can be seen, in particular, in the very exceptional gravity of the proceedings before the Constitutional Court and the related efforts of the compulsory legal representation not only to ensure the legally qualified exercise of rights before the Constitutional Court, but also to guarantee a higher degree of objectivity of the parties when assessing their own status.
4. In the present case, the complainant (the lawyer) lodged a constitutional complaint without a compulsory legal representation, requesting the court to remedy this defect, stating that he could not find a lawyer who would take over his legal case or seek him out, as he was incapacitated on 6 August 2015 because of an infectious illness accompanied by high temperatures, preventing him from obtaining legal assistance. He added that he would ask the Czech Bar Association to appoint an attorney after improving his health. At the same time, however, he requested that his constitutional complaint be dealt with without the need for a legal representation because, in his view, if he is a complainant in a civil matter, it is unnecessary for him to be represented by another lawyer in proceedings concerning a constitutional complaint.
Procedure II of the Chamber
5. Since the Second Chamber also takes the view that, in cases where the complainant is a lawyer, the existence of a compulsory legal representation is not effective, it has brought the case before the plenary of the Constitutional Court with a proposal for an opinion which would overcome the above-mentioned opinion, Pl.
6. He also stated that the provisions of § 23 of Act No. 182 / 1993 Coll., on the Constitutional Court, do not directly refer to the possibility that the opinion of the plenary would be overcome by a previously adopted opinion, but explicitly provides only for overcoming the legal views expressed in the findings, but that can be inferred in particular from the sense of the standard, which is intended to harmonise the case-law of the Constitutional Court. In particular, it must be pointed out here that it cannot be accepted that the legal opinion expressed in the opinion of the Constitutional Court could never be changed again and under any circumstances (except, of course, the legislature's intervention), since the possibility of a previously adopted opinion omitting, for example, an important argument or a significant change in the social situation, without formally changing the legislation that has been interpreted at the same time. It is for this reason that Article 23 of the Law on the Constitutional Court provides for the possibility of overcoming the previously stated legal opinion in the Constitutional Court's decision-making practice, while there cannot be any difference between the finding and the opinion, since, in terms of their substance and relation to the provisions of Article 23 of the Law on the Constitutional Court, these forms of decision-making do not differ in principle. In addition, it should be borne in mind that case law is a much more dynamic factor in law than written law (norm-making). The change of caselaw is therefore fundamentally based on the persuasion of the legal argument used and therefore the nature of the decision-making activities of the courts is foreign if a form of decision (opinion) is to be completely excluded from this dynamic process, as this would put the court in the position of an infallible interpreter of the law, which is not the case and is not the case.
7. II. The Senate therefore submitted to the plenary of the Constitutional Court a proposal for an opinion which would have exceeded the legal opinion previously expressed in the opinion of the plenary of the Constitutional Court adopted pursuant to the provisions of Article 23 of the Law on the Constitutional Court.
Own justification of the opinion
8. The reasons for overcoming the previously stated legal opinion were found by plenary in particular in the following circumstances.
9. First of all, it must be assumed that, since the adoption of the opinion, the circumstances relating to the procedure for a constitutional complaint have changed significantly. In fact, while at the time of the adoption of the opinion cited, the proceedings before the Constitutional Court were still relatively new in nature, with which lawyers had no significant experience, so that even the requirement for strict legal representation without differentiation of the parties to the proceedings could appear rational, currently every lawyer already has, or at least can, access to the database of the Constitutional Court's case-law and documents held by private bodies, models of submissions to the Constitutional Court, etc.). In this situation (and using these documents), therefore, any lawyer should be able to legally protect the rights of his clients from the Constitutional Court, as well as to protect his own rights.
10. Similarly, from the point of view of time development, it is not possible to ignore the fact that, since the adoption of the Opinion in sp. v. Pl. ÚS-st. 1 / 96, the legal regulation has changed significantly (see in particular Section 44 of the Law on the Constitutional Court to the amendment of Act No 404 / 2012 Coll.), according to which oral proceedings are currently held in practice rather exceptionally, and the obligation of legal representation before the Constitutional Court has thus practically narrowed down to the obligation to draw up a constitutional complaint (or observations) representing the lawyer. The clear formalism of the strict requirement of legal representation by another lawyer is even more obvious in the case of interveners. In other words, if, at the time of the adoption of the original opinion, it was true that the Constitutional Court had ruled without the parties' presence only if they had given their consent and the number of these negotiations was therefore relatively high, it appears that there was some reason to require the representation of a lawyer also because not all lawyers are used to acting before the courts in their practice. However, this potential reason for further persistence in the opinion of Mr Pl. ÚS-st. 1 / 96 has completely lapsed in view of the legislative and factual developments mentioned.
11. Opinion sp. zn. However, both of these reasons cannot at present be considered convincing.
12. In order to ensure the professional competence of the submissions, it is appropriate first of all to refer to the above in relation to the amount of legal information relating to the proceedings before the Constitutional Court, which may serve each lawyer to ensure the appropriate expertise of the submissions. At the same time, it is impossible to ignore the fact that every lawyer is already familiar with the constitutional law agenda in the law exam, as one of its fields is also administrative and constitutional law. Nor does it seem necessary to mention that, during the course of the studies at Czech law faculties, compulsory subjects are also taught in a very standard way, in which students learn to write constitutional complaints and learn in detail all the essential aspects of the proceedings before the Constitutional Court. Therefore, any lawyer should already have sufficient knowledge of all the specific features of the proceedings before the Constitutional Court, and it cannot be logically concluded that, if he had not been represented by another lawyer, the written submissions by him would have had a lower degree of expertise.
13. In fact, if every lawyer under Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, is generally qualified to file a constitutional complaint, it cannot be reasonably assumed that he would have been less competent or prudent in writing a constitutional complaint concerning himself. On the contrary, from the nature of the matter, it can be expected that, if he were to experience interference with his own constitutionally guaranteed fundamental rights and freedoms, he would be more likely to avoid a meticulous and well-founded constitutional argument that would justify the constitutional complaint lodged by him.
14. Nor can it be argued that the "other 'lawyer, by which the complainant would be represented, would necessarily increase the professional competence of the proposal submitted by him. The complainant's lawyer may itself specialise in constitutional law and proceedings before the Constitutional Court. Moreover, several current lawyers have previously acted as judges of the Constitutional Court and it is absurd to consider that the person of another lawyer would give without further presumption for the higher quality of their submission. In these cases, therefore, there is no risk that the Constitutional Court would be unduly burdened with unqualified proposals and unqualified access to the hearing by participants, which, moreover, constitutes the essential purpose of the provision in question, § 30 (1) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 83 / 2004 Coll. After all, the right of a lawyer (but not an obligation) to be represented by another lawyer who, for example, specializes in this type of procedure, or appears to be effective in representing him because of less emotion and greater distance (also" more eyes see more ") remains. Nor does it, of course, prevent any complainant from consulting with someone whose expertise he believes (not necessarily just a lawyer) before filing a constitutional complaint, even if he does not intend to be represented.
15. The second argument (i.e. guarantee of higher degree of objectivity) is also not sustainable at present. First, the purpose of representation by a lawyer is not to guarantee the client objectivity (that is the task of the court), but to protect and enforce the rights and legitimate interests of his client and to obey his orders (§ 3 (1) and § 16 (1) of Act No. 85 / 1996 Coll., on the Advocacy, as amended by Act No. 79 / 2006 Coll.).
16. Furthermore, it is possible to point out the practical level of the problem solved. In fact, if a lawyer considers that he is the most competent to produce a procedural document before the Constitutional Court concerning himself, he cannot, in fact, be prevented from doing so and subsequently, in his legal capacity, from contacting another lawyer who would merely formally add a signature under his written application and thus prove the existence of representation. In this situation, however, this legal representation can only be regarded as a formal act, and therefore the duration of the legal representation by the Constitutional Court, repeatedly criticising the overstretched formalism, does not seem effective but unreasonably formalistic.
17. If the opinion of Pl. Pl. ÚS- st. 1 / 96 also argues that, in criminal proceedings, the legislature did not provide for an exception to the necessary defence of a person with legal training (including a lawyer), and if the Constitutional Court had therefore accepted the view that the complainant would not have to be represented in the proceedings on a constitutional complaint, the problem of differentiation of individual proceedings (civil versus criminal) would have arisen, it should be noted that, according to the permanent case law of the Constitutional Court, proceedings on a constitutional complaint are not a continuation of the previous proceedings. It is a completely separate proceeding, the Constitutional Court is not another instance in the system of general courts and it would therefore be systemically flawed if the procedural rules applicable to these different proceedings were confused. According to Article 83 of the Constitution of the Czech Republic, the task of the Constitutional Court is to protect constitutionality, not to decide on guilt and punishment, on the justification of a civil claim or on the legality of the administrative decision. Its reference criterion is the protection of constitutionally guaranteed fundamental rights and freedoms and the reasons for which, in criminal proceedings, representation by a lawyer is also required for a person who has a legal education are therefore not transferable without further transmission to proceedings on constitutional complaints.
18. This, of course, is not to be denied that any representation by another lawyer who has a certain distance from the matter may be meaningful in a particular case, according to the principle that "it is not good to be a doctor and lawyer in his own family." However, the question in question is determined whether the State (through the law and its strict interpretation by the Constitutional Court) is to force every lawyer to be represented by another lawyer without exception and not whether, in a particular case, it is more meaningful to be represented if the lawyer so agrees. In fact, the Constitutional Court effectively denies the often attractive approach that the current constitutional system is based on the primacy of the individual before the state. Approximated to the problem: The Constitutional Court orders the lawyer to be represented by another lawyer even if he is convinced that he does not need this representation at all.
19. This is related to another question, which is the reimbursement of representation costs. Since the proceedings for a constitutional complaint are set very widely (no judicial fee is paid, the decisions or interventions of public authorities, which may or may not have been brought to an appeal procedure, etc.) are also challenged, the obligation to be represented by a lawyer is virtually the only effective restriction of access to the court. It is true that the costs of the proceedings are borne by the party itself or by the secondary proceedings (Section 62 (3) of the Constitutional Court Act). In the present case, where the complainant himself is clearly able to draw up his application to the Constitutional Court by qualified means and to continue to appear before it, he is completely unnecessarily obliged to pay another lawyer (at least) the amount for the 2-3 acts of legal service. If this payment does not take place and the representation is in kind pro bono, since another lawyer does not take the money for work which he did not do, or otherwise compensation for each other, then only the nonsense of the strict duration of this purely formal procedure is confirmed in these cases (another lawyer signs something which he did not create or in a substantial part of it for reasons of collectivity or friendship).
20. Not to mention that the Law on the Constitutional Court gives the possibility to order a participant or an intervener to reimburse costs to another party (Paragraph 62 (4)). Therefore, it cannot be completely excluded that these completely unnecessary representation costs could be passed on to the shoulders of another participant, but that is a circumstance which could in a particular case reach the constitutional dimension.
21. Another argument against the strict duration of the unconditional representation of the complainant by another lawyer arises from the settled case law of the Constitutional Court. In its view, the public authorities, public institutions and a number of public bodies are not to use the services of lawyers in court proceedings or, if they do, there is no reason for the general courts to order the costs thus incurred to be paid to unsuccessful parties, on the ground that they are not incurred effectively, as these public institutions are able to obtain "basic legal service 'from their own personal resources. In this light, it is therefore very inconsistent for the same Constitutional Court to order lawyers to be represented and to increase their own costs when it is clear that they do not need such representation at all in a number of cases.
22. The interpretation made in this Opinion may also be supported by the wording and logic of certain other provisions of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended. Paragraph 29 of the Act provides for the possibility of representation only by a lawyer (... "may be... represented only by a lawyer..."), the following provision of Paragraph 30 (1) provides for the obligation of natural and legal persons to be represented by a lawyer and paragraphs 2 and 3 show that a public authority or an office may not be represented by a lawyer. This adjustment can indeed be interpreted - purely grammatically - so that all natural and legal persons must be represented by a lawyer, i.e. even lawyers themselves. At the same time, however, a second interpretation is offered which does not contradict the grammatical wording of the provisions cited and at the same time corresponds much more to their meaning and purpose. Thus, an interpretation according to which it is not necessary to insist on a lawyer's representation if the lawyer himself is a participant or intervener. It follows from the legal provisions cited, according to the opinion of the Constitutional Court, that their purpose is to guarantee the necessary expertise in the conduct of individual proceedings, which is further specified in such a way that compulsory representation by a lawyer is not required at all by the public authorities and authorities which can be expected to have the necessary expertise and competence to act independently in proceedings before the Constitutional Court. Of course, the same applies logically to lawyers whose legal expertise is undeniable. In addition, if the first interpretation was actually to be possible, it would lack any reasonable basis for the provision of Paragraph 29 of the first law cited, since in this case that provision would not have provided anything other than the following.
23. It should also be noted that the conclusion that a lawyer as a party or intervener does not have to be represented by another lawyer in proceedings before the Constitutional Court does not constitute a discriminatory measure compared to other legal professions, but is one of the possible solutions chosen by the legislator, based on a rational basis on a specific position, expertise and prestige of the legal profession. However, it is also possible that a similar rational solution would be different in future (see, for example, Section 241 of the Civil Code or Section 105 (2) of the Administrative Code). However, it is not for the Constitutional Court, which is bound by the Law on the Constitutional Court under Article 88 (2) of the Constitution of the Czech Republic, to determine the way in which the representation is to be regulated in this procedure, or which persons, in view of their expertise, do not need to be represented, but merely interpret the provisions of Article 30 (1) of the Act cited.
24. The fact that, according to the two procedural rules cited (civil and administrative rules) in extraordinary appeals proceedings before the highest courts of a person with legal training (and therefore neither lawyers) need to be represented by a lawyer, leads to an absurd result that the same person must be represented by a lawyer solely for proceedings concerning a constitutional complaint (as a complainant or intervener). In other words, it must add to the proceedings a person who has not yet acted in it, who knows nothing about it, is not aware of the detailed circumstances of the proceedings which often last several years, and whose task is merely to draw up a constitutional complaint or comment on it instead of another and equally qualified person, but who has such detailed information and insights into the matter. However, it is not appropriate to trivialise the difficulty of drawing up these submissions, on the other hand, it cannot be argued that they are dramatically more demanding than other submissions (actions, appeals, complaints, appeals, appeals, appeals, etc.).
25. In conclusion, it is appropriate to recall the settled case law of the Constitutional Court, according to which the grammatical wording of the legal provision is merely an initial way of getting closer to the actual content of the rule in question and, therefore, to establish it, it must be based on its purpose, the circumstances of its creation, the systematic context and, last but not least, the usual interpretation principles. If, therefore, Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 83 / 2004 Coll., states in Paragraph 30 (1) that natural and legal persons as participants or as interveners of the proceedings before the Constitutional Court must be represented by a lawyer to the extent provided for by specific provisions, it is clear that this provision is intended to prevent the Constitutional Court from being overlapped by submissions which are not legally qualified and which would not in fact seek the protection of constitutionality, which is the Constitutional Court itself. However, in view of the purpose of the provision in question, it cannot be concluded that a lawyer acting before the Constitutional Court as a party or intervener and a priori does not have the necessary expertise (as opposed to a situation in which he himself represents another party, where the law does not impose any restrictions) and therefore could not appear before the Constitutional Court without legal representation. Although it is therefore necessary to continue to insist on an unconditional legal representation for proceedings before the Constitutional Court, this condition does not apply in cases where the lawyer himself is a party to the proceedings, since he, as an individual called upon to represent natural and legal persons before the Constitutional Court, can undoubtedly also be a qualified legal representative himself.
26. Since the above-mentioned legal conclusions deviate from the legal opinion of the Constitutional Court contained in the opinion of the Constitutional Court, in its Opinion No 1 / 96, the Constitutional Court will continue to rely on the assumption that a lawyer does not have to be represented by another lawyer in the proceedings before the Constitutional Court.
27. The legal opinion contained in this Opinion shall apply to constitutional complaints lodged with the Constitutional Court on the day following the publication of an opinion in the Collection of Laws.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by the judges Jan Filip, Pavel Rychetský and Vladimir Sládeček on the opinion of the plenary.
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Regulation Information
| Citation | Communication from the Constitutional Court No 290 / 2015 Coll., on the Opinion of the plenary of the Constitutional Court on the representation of lawyers as parties or interveners before the Constitutional Court |
|---|---|
| Regulation Type | Communication from the Constitutional Court |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 03.11.2015 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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