The Constitutional Court found No 38 / 2023 Coll.
The Constitutional Court of 24 January 2023 sp. zn.
Valid
38
FIND
The Constitutional Court
On behalf of the Republic
On 24 January 2023, the Constitutional Court decided, under point Pl.
as follows:
The provisions of Paragraph 18c (1) in the words "whose income and property ratios justify it and" of Act No 85 / 1996 Coll., on the Advocacy, as amended, is hereby repealed.
Reasons
Definition of the case
1. The Municipal Court in Prague (hereinafter referred to as "the applicant") has proposed, pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and Article 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court"), the repeal of Article 18c (1) in the words "whose income and property conditions justify this" of the Law No. 85 / 1996 Coll., on the Advocacy, as amended, (hereinafter referred to as "the Law on Advocacy").
2. It is submitted from the file that the appellant is hearing an action against the order of the Czech Bar Association ("the Chamber ') of 16.6.2020 No 10.01 000357 / 21-005, which suspended the application for legal advice under § 18a or the legal service under § 18c of the Law on Advocacy. In the present case, the applicant requested the Comoros to make a constitutional complaint against the decision of the Supreme Administrative Court of 7.4.2021 sp. zn. 16 Kss 77 / 2020 rejecting its application for the renewal of disciplinary proceedings in cases brought before the Supreme Administrative Court under sp. paragraphs 16 Kss 6 / 2017 and 16 Kss 2 / 2018. It justified its request by refusing to take over the lawyers to whom it had contacted. It stated in the request that it did not meet the conditions for granting free legal aid under the relevant legal provisions and that the costs of legal representation would be borne by it itself. According to the applicant, only the social situation of the applicant is not the only legal reason for the applicant to have the right to appoint a lawyer to provide a legal service. The Czech Bar Association considered the application to be manifestly legally inadmissible on the ground that the applicant applied for the appointment of a lawyer to provide legal services under Article 18c of the Law on Advocacy, but not free of charge. The Chamber stated that, from 1 July 2018, it was entitled to designate lawyers under that provision only for the provision of free legal services, even if the applicant had failed to find a lawyer willing to take the case.
3. The Municipal Court in Prague, when considering the present action, concluded that the provisions of Paragraph 18c (1) in the words "whose income and property conditions justify this" of the Law on Advocacy, which was used in that procedure, are contrary to the constitutional order, namely Article 36 (1) of the Charter of Fundamental Rights and Freedoms ("the Charter"). For this reason, by order of 18.11.2021 sp. zn. 6 A 101 / 2021, the applicant suspended proceedings against the above decision of the Czech Bar Association and brought the matter before the Constitutional Court with a motion for annulment of Paragraph 18c (1) of the Law on Advocacy in the words "whose income and property conditions justify it '.
Arguments of the appellant
4. The appellant submits that, although other legal conditions are laid down for the appointment of a lawyer (e.g. Article 18c (3) of the Law on Advocacy), these legal conditions were not relevant for the decision of the Chamber. Thus, the appellant had to assess the constitutionality of Paragraph 18c (1) of the Law on Advocacy.
5. The appellant takes the view that, as a result of the contested regulation, there is a restriction on the right of access to the court, since a natural person who has not been able to obtain a lawyer on a contractual basis and who does not fulfil the condition of income and property conditions cannot initiate a procedure whose procedural condition constitutes a lawyer's representation. In such a situation, the party cannot have access to the court in proceedings concerning a constitutional complaint, since its submission does not fulfil the procedural requirements of the Constitutional Court Act.
6. The appellant points out that the contested provision was inserted into the Law of the Advocate General by an amendment implemented by Act No. 258 / 2017 Coll., which took effect on 1 July 2018. This amendment amended the existing legislation, which did not provide for restrictions on the possibility of a lawyer on a contractual basis. In accordance with Article 18 (2) of the Law on Advocacy, as effective by 30 June 2018, this right was granted to any participant who fulfilled other legal conditions. The contested provision was part of the amendment by Mr Helena Vlaková to the Press of Chamber of Deputies No 853. It follows from the Protocol of 24 May 2017 of the Chamber of Deputies that it should have been originally the material of the Ministry of Justice to deal with free legal aid. Finally, it was not put forward, and therefore, as an amendment by Mrs Helena Vlaková, a substance similar to the issue. It is not apparent from the short-term registration why the original concept of appointment by the Czech Bar Association narrowed down to the provision of free legal aid, or why the range of persons to whom an attorney can be appointed by the Czech Bar Association was limited only to persons for whom income and property conditions justify it.
7. According to the appellant, as a result of the application of Paragraph 18c (1) of the Law on Advocacy, the application of Article 18c (1) of the Law on the Law on Advocacy prevents access to the Constitutional Court by natural persons who do not fulfil the condition of income and property ratios and who cannot agree to represent a particular lawyer.
Observations of the parties and of the Czech Bar Association
8. The Constitutional Court pursuant to Article 69 of the Law on the Constitutional Court sent the proposal to the chambers of Parliament of the Czech Republic, acting on behalf of the party to the proceedings, and to the Government and the Ombudsman (hereinafter referred to as "the Ombudsman ') as bodies entitled to intervene as interveners. At the same time, he requested comments from the Czech Bar Association as a status organisation of lawyers.
a) Expression of the Chamber of Deputies
9. Under the Chamber of Deputies, its President, Ing. Markéta Pekarová Adamová, who stated that the contested provision was inserted into the Law on the Advocacy by amendment of Act No. 258 / 2017 Coll., amending Act No. 85 / 1996 Coll., on the Law on the Judicial Enforcement and Enforcement Activities, Act No. 358 / 1992 Coll., on notaries and their activities (notarial order), as amended, Act No. 120 / 2001 Coll., on the Judicial Enforcement and Enforcement Activities (Enforcement Order) and on the amendment of other laws, as amended, and Act No. 99 / 1963 Coll. This bill was submitted to the Chamber of Deputies by a group of Members on 29 June 2016 and was distributed to Members as House Press No. 853 in the 7th parliamentary term. The Chamber of Deputies gave its assent to the bill, when in the final vote on 24 May 2017 of the 145 Members present in favour of the proposal voted 136 and no one voted against the proposal. The President of the Chamber of Deputies added that the contested provision was approved in the wording of the amendment by Mr Helena Vlaková under the number of the House Document 6285. The Chamber of Deputies passed on 22 June 2017 a draft Senate law which gave its assent to the bill on 20 July 2017. The President of the Republic signed the Act on 1 August 2017. In the Collection of Laws the law was declared on 18 August 2017.
(b) Statement by the Senate
10. On behalf of the Senate, his President, RNDr. Miloš Vyšl, stated that the contested provision forms part of the complex of provisions § 18a to 18d, inserted into the Law of the Advocate General by Act No. 258 / 2017 Coll., representing a conceptual change in the designation of lawyers by the Chamber for the provision of legal services compared to the existing regulation contained in § 18 of the Law of the Advocate General. Whereas, according to the original concept, the basic condition for determining a lawyer was the objective impossibility of obtaining legal services, while property ratios were only decisive for determining a lawyer to provide a legal service free of charge or for reduced remuneration, the new concept is aimed at a systemic solution to the provision of free legal aid, where the condition of impropriety becomes decisive.
11. The President of the Senate also stated that the draft Act No. 258 / 2017 Coll. was referred to the Senate by the Chamber of Deputies on 26 June 2017 and was discussed as a print 144. The applicants have put the contested regulation in the context of an attempt to provide legal aid in a systemic way. The circumstances of the contested regulation were described by the petitioners in a similar manner as the appellant, when the parliamentary bill was adopted by the Ministry of Justice, which had not already been submitted by the Government in view of the parliamentary term. No Senator or Senator has spoken about the content of the contested provision in the general debate. On the basis of the draft constitutional legal committee, the Senate voted on the draft law as referred to by the Chamber of Deputies. In the vote, out of the 52 senators and senators present, 50 voted for the motion, no one opposed. By order No 247 of 20.7.2017 The Senate approved the bill as referred to by the Chamber of Deputies. The President of the Senate stated that the contested provisions had been adopted within the limits of the Constitution laid down by competence and in a constitutional manner, leaving it to the Constitutional Court to assess their constitutionality.
(c) Government observations
12. The Government has indicated that it is entering the proceedings and has proposed rejecting the application. She has empowered the Minister of Legislation JUDr. MgA. Michal Solomon, Ph.D., in cooperation with the Minister of Justice to draw up a statement from the Government on the proposal and to authorise the Minister of Justice to represent the Government in this proceedings.
13. In its observations, the Government first submits, on the basis of the selected decisions, that it follows from the case law of the European Court of Human Rights ("ECHR ') that it is not necessary to ensure that the parties to the proceedings are fully" equality of arms'. There may be a system of legal aid which lays down the conditions for granting such assistance, but which must provide sufficient guarantees before the arbitral. According to the Government, the purpose of the amendment in question to the Law on Advocacy was to adapt the subsidiary system of state-guaranteed legal aid to complement existing methods based, on the one hand, on the general principle of contractual freedom in the market for the provision of legal services by lawyers, the officially supported activities of non-governmental non-profit organisations (e.g. civil counselling), and the procedures laid down by individual procedural rules. The Government stated that, pursuant to Article 18 (2) of the Law on Advocacy, in a version effective until 30 June 2018, the appointment of a lawyer by the Chamber was bound by the current fulfilment of the conditions in which the applicant did not fulfil the conditions for the provision of a lawyer by a court, was unable to obtain legal services and in writing asked the Chamber to appoint a lawyer. The applicant had to provide evidence of compliance with the second condition by written confirmation of several lawyers he had addressed who refused to take his case. The Chamber could decide to grant legal aid free of charge or for reduced remuneration where justified by the applicant's income and property ratios. The new legislation contained in § 18 et seq. of the Law on Advocacy concerns the conditions for the provision of so-called free legal aid in the form of legal advice (§ 18a and § 18b) and legal services to persons who fulfil the legal conditions (§ 18c). According to the Government, the new legislation thus strengthened the rights of natural and legal persons, which, as a result of their financial and property ratios, could be limited to the rights deriving from the Charter and the international obligations of the Czech Republic.
14. Even with regard to the number of registered lawyers providing legal services in excess of 14 000, the law prefers a contractual representation by mutual agreement of both (all) parties. The task of the State is to provide legal assistance to those groups that do not have this option for income and property conditions, thereby enabling them to defend their rights and interests in a qualified manner. The Government takes the view that there is no reason for the State to interfere with a system of legal aid that is functional and predictable and can meet the demand for legal services without exception. The inoperability or inconstitutionality of this system cannot be established from possible and isolated cases where the party claims that it has not yet been able to obtain legal aid for remuneration individually. The problems associated with the practical unavailability of legal services provided by lawyers are not signalled from the work of the Ministry of Justice.
15. It can be argued that the waiver of the Comoros's obligation to appoint an applicant a lawyer in cases where the applicant is not in an unfavourable economic situation has partially reduced the existing standard of access to legal services for those persons. According to the Government, however, the amendment made by Act No. 258 / 2017 Coll. is rationally justified, fully corresponds to the obligations arising from international obligations for the Czech Republic and does not constitute an unacceptable interference with the rights guaranteed by the Charter. The application would establish the right of every applicant to legal aid free of charge, regardless of his income and property ratios, which would not be acceptable. The Government therefore proposed rejecting the proposal in question.
(d) The Ombudsman's observations
16. The Ombudsman stated in his observations that he had decided to intervene. It stated that it considered the contested regulation to be a threat to the right of access to a court within the meaning of Article 36 (1) of the Charter and to the right of legal assistance within the meaning of Article 37 (2) of the Charter. It draws attention to the fact that it is not only about the possibility of recourse to the Constitutional Court but, in the case of persons who do not fulfil the conditions for the provision of a representative under the civil and administrative rules of law and are rejected by lawyers for various reasons, as well as the availability of legal protection in both supreme courts. Last but not least, it is also about the possibility of turning to these courts by qualified submissions.
17. The Defender points out that the amendment to the Law on Advocacy in question, prepared as a compromise in cooperation with the Ministry of Justice, was tabled as an amendment to the parliamentary bill which, however, dealt with a different issue. The planned legal aid arrangements, which underwent a proper comment procedure, remained pending. The consequences of the amendment in question to the Law on Advocacy are considered very serious. It points out that, under the current text of the law, legal aid is provided only in the most necessary social cases. The rescue network for other cases was created by the law on advocacy, which lost that role as a result of the amendment in question, since the appointment of a lawyer only concerns those applicants whose income and property ratios justify it. However, lack of sufficient funding is not the only reason why it is problematic to obtain professional legal assistance. Other reasons include, for example, the complexity of the dispute in conjunction with its low lucritism, the burden on lawyers or the controversy that the dispute may raise. In such cases, it can be realistically problematic to obtain professional assistance within a closed and often relatively short time interval. Furthermore, the guardian gave evidence of his activity when it was necessary to appoint a lawyer without justification for the income and property situation. For example, it was a representation of smaller towns or municipalities, where it is difficult to find a lawyer who is not in conflict of interest because he provides services to the municipality, or cases of elderly persons who are unable to obtain a lawyer for health or other reasons, although they have the means to secure legal assistance, or cases of complex disputes with uncertain results such as disputes between apartment owners. Apriori preventing the acquisition of legal aid by excluding a part of persons from a positive adjustment may appear an effective instrument that this right will not be misused in cases of manifestly inefficient application of the law. However, such a procedure should be applied in relation to specific cases, not by denying the very existence of a constitutionally guaranteed right.
18. The guardian considers the contested regulation to be "a genuine, open and unconscious legal loophole," which limits the implementation of a constitutionally guaranteed right to legal aid and access to the Supreme Courts and the Constitutional Court. In his view, this gap cannot be removed by interpretation or subsidiary application of the Civil Code, the Administrative or Criminal Code; intervention in the right of access to the court and legal aid must be dealt with by way of deregulation, as suggested by the Municipal Court in Prague. The Guardian also points out that the contested scheme raises doubts as to whether it is in conflict with Article 3 (1) of the Charter.
e) Observations of the Czech Bar Association
19. The Czech Bar Association stated in its opinion that it did not agree with the proposal. It referred, in particular, to the statement of reasons for the amendment by Mr Helena Vlaková to the House of Press in question, No 853, which states that the amendment to the Law on the Law on Advocacy by Law No 258 / 2017 Coll. was intended to adapt the subsidiary system of legal aid which would complement existing methods. The Chamber stressed that the basic precondition for access to legal aid was the funds that the client had to spend to obtain representation by a lawyer. Only in the event that the client does not have these funds is state regulation, which, through the so-called 'right of the poor', creates a social rescue system that allows these people access to justice. Therefore, the provision in question does not include the designation of a lawyer for clients who are not in the position of the weaker party and do not need State aid. With reference to the order of the Constitutional Court sp. zn. III. ÚS 296 / 97 of 17.3.1998 (U 20 / 10 SbNU 409) The Chamber states that the form of the legal aid system is entirely in the legislator's gesture. On this principle, it does not find anything unconstitutional, in particular with regard to the high number of lawyers (the number of active lawyers who can provide the requested legal services at the time of the submission of the observations was 12 419). According to the Chamber, this robust system, based on the competition of lawyers, is able to meet all the demand for legal services, without exception. The obligation of the Czech Bar Association to appoint a lawyer to provide legal services for consideration would distort competition within the meaning of Section 19a of Act No. 143 / 2001 Coll., on the Protection of Competition and on the amendment of certain laws (Law on the Protection of Competition), as amended.
20. The Chamber also expressed its views on the applicant's arguments in the administrative action before the applicant and on the question of the role of lawyer in the cases of compulsory representation. It pointed out that the refusal to represent a client in proceedings before the Constitutional Court may not be a manifestation of an unwillingness to provide a lawyer with a legal service and thus a sign of a "fundamental system of legal aid consisting in the competition of lawyers', but, above all, by expressing a legal opinion on a matter with which the client refuses to identify. On the basis of the above reasons, the Czech Bar Association has proposed the rejection of the application.
Replication of the applicant
21. The Constitutional Court sent the observations received to the appellant for a reply. The appellant stated that the Ombudsman's observations illustrate the greater impact of the contested regulation and significantly relatifies the Government's argument that there are no problems with its application.
22. In response to the observations of the Government, the appellant noted that it did not find the answer to the question as to how a legal standard could be interpreted in the sense that access to the court is granted in cases where legal representation by a lawyer is required and where such representation is not available to the party. The appellant does not agree with the argument that, following a refusal, the party may address other lawyers of a total of 14 000. This argument has nothing to do with the subject-matter of the legal proceedings in which the decision of the Czech Bar Association is challenged directly by which the procedure for the appointment of a lawyer has been terminated.
23. The appellant further argued that, even in the Chamber's observations, it did not find a single reference to the legislation in force under which it was possible for a party whose earnings and assets make this impossible, to appoint a lawyer where such representation is compulsory. The analysis of where and how the law is needed or what is meant by equality of 'arms' in proceedings does not address the fundamental assumption that the party to the proceedings is denied access to the court at all. The appellant did not claim anywhere that the legal representation should or must be provided free of charge. On that argument, the appellant points out the wording of Paragraph 18 of the Law on Advocacy, as effective until 30 June 2018, and the practice at that time, when the provision of a lawyer in itself did not constitute a right to free legal aid and it could be charged without the appellant knowing that it would cause practical difficulties.
Oral proceedings
24. The Constitutional Court, in accordance with Article 44 of the Law on the Constitutional Court, considered that there was no need to conduct oral proceedings in the case, since it would in no way contribute to a further or more profound clarification of the case than how it became aware of the written acts of the appellant and the parties. The fact that the Constitutional Court did not consider it necessary to carry out the taking of evidence justifies the failure of oral proceedings.
Dedication and context of the contested provision
25. The contested part of the provision is indicated in bold:
Article 18c (1)
26. "(1) An applicant whose income and property ratios justify it and who is not represented by another lawyer or person under Paragraph 2 (2) (a) in a case in which he requests the provision of a legal service shall have the right to have the Chamber appoint a lawyer to provide a legal service. In the same case, the applicant may be designated by the Bar Chamber only once; that is not the case if the lawyer previously designated in this case refuses to provide legal services for the reasons set out in Paragraph 19, or if the situation referred to in Paragraph 20 (2) arises. '
Terms and conditions of the formal assessment of the proposal
27. The Constitutional Court first examined whether all the conditions for hearing an application under Article 87 (1) (a) and Article 95 (2) of the Constitution and Article 64 (3) of the Constitutional Court Act were fulfilled. The proposal clearly fulfils all the formal and content requirements laid down by the Constitutional Court Act.
28. Under Article 95 (2) If the Constitutional Tribunal concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it shall bring the case before the Constitutional Court for consideration. The provisions of Paragraph 64 (3) of the Law on the Constitutional Court further extend this provision, according to which the application for annulment of the law or its individual provisions is also entitled to be lodged by the Court in the context of its decision-making activities under Article 95 (2) of the Constitution. In order for a general court to question the constitutionality of a particular law, or its individual provision and the case to be submitted to the Constitutional Court, its real application is necessary and not only its hypothetical use or other broader context [cf. the findings sp. zn. In other words, it must be a law (or part of it) that impedes the achievement of the desired (constitutional) outcome. If not removed, the outcome of the ongoing proceedings would be different [cf. sp. zn.
29. The Constitutional Court found that the Municipal Court in Prague was testifying to the active procedural legitimacy of the application for annulment of the contested provision of the Law on the Law on the Lawyer, as it is to be used in the administrative action before it. The application of the contested provision would result in a consequence in the proceedings brought before the appellant which it finds to be unconstitutional, and the non-constitutionality sees in breach of Article 36 (1) of the Charter.
Assessment of the constitutional conformity of the legislative process
30. In the procedure for checking the standards, the Constitutional Court pursuant to the provisions of Section 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., first assesses whether the contested law has been adopted and issued within the limits of the Constitution laid down by competence and by the constitutional procedure. In the case at issue, the Constitutional Court found, from the observations of the parties and from the House's publicly available press (http: / / www.psp.cz), that the contested provision of the Law on Advocacy had been adopted within the limits of the Constitution established competence and in a constitutional manner.
Substantial assessment of the proposal
(a) General considerations
31. The application states that the unconstitutional nature of the contested provision is seen, in particular, in breach of Article 36 (1) of the Charter, which provides that any person may seek the application of his or her right in an independent and impartial court and, in specified cases, in another institution. The substance of the appellant's argument is that, by applying the provisions of Paragraph 18c (1) of the Law on Advocacy, access to the court is denied to natural persons in proceedings whose procedural condition is represented by a lawyer who has failed to obtain legal services on a contractual basis and is not a case of representation justified by income and property conditions.
32. The Constitutional Court has interpreted in a number of its decisions the content of the right of access to the Court. It emphasised its importance as one of the starting elements of the right to a fair (due) process and thus the right to judicial protection guaranteed by Article 36 (1) of the Charter [cf., for example, the finding of sp. zn. II. ÚS 3237 / 20 of 3.12.2021 or sp. zn. I. ÚS 1618 / 15 of 29.3.2016 (N 51 / 80 SbNU 623)]. Article 37 (3) of the Charter and Article 96 (1) of the Constitution [cf. Findings sp. zn. IV. ÚS 682 / 16 of 21.3.2017 (N 46 / 84 SbNU 541) or sp. zn. I. ÚS 630 / 16 of 29.11.2016 (N 227 / 83 SbNU 535)]. The right to legal aid is enshrined in Article 37 (2) of the Charter, where it is expressly stated that everyone has the right to legal aid in proceedings before courts, other public authorities or public authorities, since the beginning of the procedure.
33. The right to legal aid belongs to everyone, so each natural and legal person is a body. The Constitutional Court also stresses in its caselaw the relationship between the right to legal aid and the prohibition of discrimination enshrined in Article 3 (1) of the Charter, which provides that fundamental rights and freedoms belong to all persons without distinction (also in relation to property). The right to legal aid must be guaranteed to all persons, both persons owned and deprived [cf. It also stresses that Article 37 (2) of the Charter 'clearly enshrined the right to legal aid to anyone who so requests, in any type of procedure before a public authority, from the outset. Thus, in the proceedings of the court, the administrative and therefore of the infringer, even if the law did not say so "(BANNOCH, H. In: WAGNER, E. et al., Charter of Fundamental Rights and Freedoms. Comment. Praha: Wolters Kluwer, 2012, p. 774).
34. The Constitutional Court also states that the right to legal aid is of a dual nature. It guarantees, on the one hand, the right to legal aid for everyone, in order to be able to be represented in proceedings by a person who is well-versed (usually a lawyer), and the State can intervene in that right only exceptionally, for example because of abuse of law. At the same time, however, the right to legal aid sets out the positive commitments that the State must fulfil [see the findings of the sp. zn. I. ÚS 3849 / 11 of 12.8.2014 (N 151 / 74 of the SbNU 289), sp. zn. I. ÚS 4120 / 17 of 13.7.2018 (N 124 / 90 of the SbNU 89) or sp. zn. II of the ÚS 1866 / 20 of 1.9.2020 (N 175 / 102 of the SbNU 45)]. Although these positive commitments in the case law of the Constitutional Court are formulated mainly in relation to the availability of free legal aid, the principle of access to the Court appears to be the starting point, namely ensuring the right to legal aid in general. The State must ensure that the parties to the proceedings have access to legal aid practically and effectively and not only in theory. "Legal aid covers all stages of the procedure and undoubtedly includes legal assistance in the submission of appeals' [Findings sp. zn. IV. ÚS 561 / 01 of 3.12.2001 (N 190 / 24 SbNU 411)]." All the more so are the State's undisputed positive obligations to provide legal assistance in a procedure in which legal representation is binding, the party to the proceedings is immaterial and, moreover, the formal conditions of the relevant submission to be processed by the party to the proceedings are extremely strict. '(Ref. By requiring the constitutional right to legal aid to be effective in practice, the Constitutional Court imposes an obligation on all public authorities "to interpret the institutions of the sub-constitutional law, taking into account the fundamental right to legal aid and in a way that respects and promotes that right and not by denying it as a result' (cf. sp. zn. I. ÚS 630 / 16).
35. The interpretation of Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention ') is also based on a similar principle. The ECHR's caselaw on the content and limits of the right of access to the court and the right to legal aid is based on the principle that the right of access to the court is not absolute and may be subject to restrictions. However, they must not make it difficult or restrict access to individuals in such a way or to the extent that they are affected by the very substance of the law. In addition, the judgment in the case of Stanev v Bulgaria (Grand Chamber) of 17.1.2012 No 36760 / 06, § 229; the judgment in the case of Baka v Hungary (Grand Chamber) of 23.6.2016 No 20261 / 12, § 120; the judgment in the case of Naït-Liman v Switzerland of 15.3.2018 No 51357 / 07, § 113; the judgment in the case of Philis v Greece of 27.8.1991 No 14003 / 88, § 59; the judgment in the case of De Geouffre de la Pradelle v France of 16.12.1992 No 12964 / 87, § 28 (cf. Guide on Article 6 of the European Convention on Human Rights. Strasbourg: European Court for Human Rights, 2021, p. 14).
36. From the point of view of the right to legal aid, the ECHR distinguishes between types of proceedings where Article 6 The Convention expressly guarantees the right to consult, to be defended and to be represented in criminal proceedings. The provision of legal assistance in non-criminal proceedings then depends on the specific circumstances of the case and the nature of the case. One of the fundamental criteria in assessing the existence of a positive obligation on the State to provide legal aid in non-criminal proceedings is a situation where legal aid is necessary for effective access to the court (judgment in Airey v Ireland of 9.10.1979 No 6289 / 73, § 26). Although the ESLP leaves a specific form of the system of legal aid under which the conditions for granting such assistance to the legislature of the Member States to be laid down, it also provides that such systems must provide adequate safeguards for individuals against arbitrage. Thus, another fundamental principle arising from the ECHR case-law is to avoid indiscretions in the exercise of the right to legal aid in all types of proceedings.
(b) Review of the contested provision
37. At the legal level, the right to legal aid in the Czech Republic is regulated in the form of several institutes. One of these is the provision of a representative to a party who fulfils the conditions for exemption from judicial fees under Paragraph 30 (2) of the Civil Code, the similar provision of the establishment of a representative is laid down in the Administrative Rules of Paragraph 35 (10). The right of defence, free of charge or for reduced remuneration, is also provided for in Section 33 of the Criminal Code in relation to the accused and in Section 51a of the Criminal Code in relation to the injured persons. In all cases it is so-called free legal aid or a provision of a representative by a court to a party to proceedings for which this is justified by financial circumstances.
38. In addition to these cases, the appointment of a representative by the Court of First Instance of the right to appoint a lawyer by the Czech Bar Association to provide legal services § 18 - 18c of the Law on Advocacy, including the contested provision. Under the Law on Advocacy, an applicant who does not fulfil the conditions for the provision of a lawyer by a court under the abovementioned legislation and cannot otherwise obtain the provision of legal services has the right of the Chamber to appoint a lawyer to provide legal advice or legal service on the basis of its timely request. The specific procedure for determining a lawyer is laid down in the provisions of Sections 18a to 18c and in Section 23 of the Law on Advocacy. The contested provision of legal services attaches the right to request the Comoros to appoint a lawyer to provide legal services in respect of the applicant's income and property conditions.
39. In order to assess whether the contested legal provision constitutes a denial of the right of access to the court guaranteed by Article 36 (1) of the Charter, the Constitutional Court used a proportionality test which normally serves to review the constitutionality of the interventions in fundamental rights and freedoms [e.g. the finding of sp. zn. Pl. Pl. Pl. ÚS. Pl. On the basis of this test, the Constitutional Court requires that, in cases of conflicts of fundamental rights or freedoms with the public interest or with other fundamental rights or freedoms, intervention should pursue a legitimate objective and be proportionate to that objective.
40. The assessment of the admissibility of the intervention under the principle of proportionality shall include three steps. The first is an assessment of the eligibility (suitability) of the purpose of determining whether a particular measure is in any way capable of achieving the intended objective, namely the protection of another fundamental right or public interest. The second step also assesses the need to examine whether the most respectful of basic law was used in the selection of funds. Finally, proportionality (in the narrower sense) is assessed, i.e. whether the injury to the fundamental right is disproportionate in relation to the intended objective. Therefore, the measures limiting fundamental rights may not exceed, by their negative consequences, the positives which constitute a public interest in the measures [cf. sp. zn. Pl. ÚS 27 / 16 of 18.12.2018 (N 200 / 91 CollNU 485; 51 / 2019 Coll.), sp. zn. Pl. ÚS 38 / 17 or sp. zn. Pl. ÚS 21 / 18 of 14.5.2019 as amended by the amending Resolution of 3.7.2019 (N 77 / 94 CollNU 54; 173 / 2019 Coll.)].
41. The Constitutional Court has examined the proposal and concluded that the contested provision will no longer stand up when carrying out the first step of the proportionality test, i.e. when assessing whether it is capable of achieving the intended objective. First of all, it should be noted that no objective of that provision is identified in the explanatory report or in other relevant supporting documents in relation to the omission of the possibility of a lawyer being appointed by the Chamber for the provision of legal services in the case of non-social reasons and does not result in any consequence.
42. The contested provision - as also stated in the observations of the parties - was inserted into the Law on Advocacy by amendment by Act No. 258 / 2017 Coll., which amended the text of Article 18 of the Law on Advocacy with effect from 1 July 2018. By 30 June 2018, the designation of a lawyer for the provision of legal services was laid down in Paragraph 18 (2) of the Law on Advocacy, which stated that: "He who does not fulfil the conditions for the provision of a lawyer by a court under special law and cannot even obtain the provision of legal services under that law (" the applicant ') has the right to have the Chamber appoint him, on the basis of his timely proposal from the lawyer.' Law No 258 / 2017 Coll. amended the provision of Paragraph 18 (2) as follows: "He who does not fulfil the conditions for the provision of a lawyer by a court under special law and cannot otherwise obtain the provision of legal services (hereinafter" the applicant ') has the right, following his timely request, to have a lawyer appointed by the Chamber for the provision of (a) legal advice under § 18a or (b) legal service under § 18c.' The amendment also included Sections 18a to 18d, which govern the right to appoint a lawyer (Sections 18a to 18c), and the keeping of a list of applicants and lawyers for the provision of legal services (Section 18d). The contested provision of Paragraph 18c (1) provides that an applicant whose income and property conditions justify it and who is not represented by another lawyer or person under Paragraph 2 (2) (a) of the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Protection of the European Communities is entitled for the Chamber to appoint a lawyer for the provision of the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Law on the Protection of the Protection of the Law on the Protection of the Law on the Protection of the Law on the Protection of the Law on the Protection of the Law on the Protection of the Law on the Protection of the Law on the Protection of the Law on the Protection of the Law on the Protection of the Protection of the Law on the Protection of the Law on the Protection of the Law on the Protection of the Protection of the Law on the
43. The Act No. 258 / 2017 Coll. further amended Article 23 of the Law on Advocacy by specifying that the remuneration to the lawyer is paid by the State, designating paragraph 1 and supplementing paragraphs 2 to 4, which specify the conditions for payment by the State in the case of the appointment of a lawyer by the Chamber. According to those provisions, the State shall pay a fee to the lawyer in cases where he has been designated by the Chamber pursuant to § 18a or 18b (§ 23 (2)) and, furthermore, where he has been designated under § 18c to provide a legal service consisting of representation before public authorities and proceedings before the Constitutional Court. In other cases, the lawyer designated under Paragraph 18c is entitled only to a refund under the State Code (Paragraph 23 (3)). Paragraph 23 (4) of the Law on Advocacy then regulates the procedure for charging a lawyer's remuneration where it is paid by the State under the previous paragraphs. As a result of the amendment of those provisions, the legal aid was extended, on the one hand, and, on the other hand, the possibility of appointing a lawyer by the Chamber was withdrawn in cases not justified by the applicant's income or property situation.
44. As is apparent from the shorthand minutes of the Chamber of Deputies from the examination of the draft law amending the Law on Advocacy (Protocols available at https: / / www.psp.cz / eknih / 2013ps / stenprot / 056schuz / s056300.htm and https: / / www.psp.cz / eknih / 2013ps / stenprot / 057schuz / bqbs / b18626101.htm), the new amendment to the appointment of Advocate Comorou was inserted in the parliamentary draft law by the amendment of the Member of Prof. Helena Vlaková at second reading (Parliamentary Document No 6285, available at https: / www.psp.cz / sqw / text / print.sqw? = 7 & ct = 853 & c1 = c3). In the light of that procedure, changes in the procedure for appointing a lawyer by the Chamber are not included in the explanatory memorandum to the parliamentary bill.
45. It is further submitted from the short-term minutes that the purpose of the proposed amendment was to extend free legal aid to certain types of proceedings (before the Constitutional Court and public authorities) and the proposal constituted a compromise in a situation where the Ministry of Justice and the Government had not submitted a forthcoming draft law on free legal aid. The debate on the content of the amendment concerned only the breadth and unification of free legal aid, not the impact of the amendment on the current method of determining lawyers in cases which are not justified by income or property ratios. This issue has not been affected in any way in the debate, nor is it apparent from the justification of the amendment by Prof. H. War. It states that the proposed legislation on legal aid is understood to be subsidiary to the contractual systems and to provide legal aid on the basis of a judicial decision. On the application for amendment of Paragraph 18c (1), it is then stated that, where justified by the applicant's economic situation, it has the right to apply to the Comoros with a request to appoint a lawyer to provide a specific legal service, and details relating to the free provision of legal services under this provision are further specified. Similarly, with regard to the proposal to amend the provision of Paragraph 18 (2) of the Law on Advocacy, which regulates the general conditions for the appointment of a lawyer, it is noted that in order for the Chamber to appoint a lawyer under that provision, the applicant is required to demonstrate, at the same time as the application is lodged, that its economic situation does not allow it to obtain the assistance requested at its own expense. At the same time, Article 18c (2-4) of the amendment proposal states that the evidence of multiple lawyers' refusal as a condition of a request to appoint a lawyer by the Chamber, which is applied under the applicable provisions of Paragraph 18 (2) of the Law on Advocacy, is proposed to maintain, at the same time, proof of the applicant's income and property ratios and the fact that it is unable to obtain a legal service otherwise.
46. It can be agreed with the appellant that neither the reasons nor the reasons for the amendment are clear from the shortwriting minutes of the draft law, nor the fact that, in addition to ensuring legal assistance in certain proceedings to persons for social reasons, the purpose of the proposed regulation should also be to amend or delete the existing procedure for the appointment of an Advocate-General to persons who are unable to provide legal services on a contractual basis for other reasons. It is not possible to agree with the conclusion of the Government and of the Czech Bar Association in their observations that the amendment in question, which led to the removal of the possibility of determining a lawyer by the Chamber to provide legal services for other than social reasons, is rationally justified. The objective of the contested regulation, in the sense of limiting the provision of legal aid to persons who are justified by their income and property conditions, cannot be inferred from the comments on the Law on Advocacy (cf. commentary on § 18- 18c and § 2. In: KOVÁřÍV, D., HAVLÍČEK, K., GERMANY, R., SOKOL, T., SYKA, J., HULÍK, D., ŽIŽLÁVSKÝ, M. Law on Advocacy. Comment. Praha: Wolters Kluwer ČR, 2017).
47. In these circumstances, where there is not only a legitimate objective of the regulation consisting of a change in the method of determining lawyers in cases which are not justified by income or property ratios, but also any reference to the fact that such an objective was intended at all, it is not possible to assess the eligibility and suitability of the contested regulation in the first step of the proportionality test. It follows from the above that the amendment of the Law on Advocacy, which also includes the contested provision, was intended to extend free legal aid to certain types of proceedings as a subsidiary form of legal aid to ensure it on the basis of a judicial decision and a contractual principle.
48. To this end, the Constitutional Court states that the extension of free legal aid is undoubtedly a legitimate, desirable objective aimed at strengthening the constitutional guarantee of the right to legal aid. Moreover, the Constitutional Court has repeatedly pointed out in its caselaw the lack of implementation of the right to free legal aid at the sub-constitutional level [cf. The amendment in question results, on the one hand, in the strengthening of the provision of free legal aid, but also in a flat-rate exclusion of legal aid in cases justified by non-income or property ratios, on the other.
49. The Constitutional Court notes that the contested provision of the Law on Advocacy, by limiting the right of a lawyer to be appointed by the Chamber to the provision of legal services only to applicants for whom their income and property conditions justify it, constitutes an inadmissible plea, since it excludes persons who cannot obtain legal aid on a flat-rate basis from the right of access to the court and the right to legal aid for other reasons. As already stated, the right of access to a court is an essential part of the right to a fair (orderly) trial and, therefore, the right to judicial protection guaranteed by Article 36 (1) of the Charter and Article 6 (1) of the Convention. Its essential precondition is the right to legal aid guaranteed in Article 37 (2) of the Charter. These fundamental rights belong to everyone, for any type of proceedings before courts or other public authorities or public authorities. The limitation of those fundamental rights to the persons who are deprived is contrary to both the content of these provisions of the Charter and in conjunction with Article 3 (1) of the Charter, under which fundamental rights and freedoms belong to all persons (including) "without distinction 'of property.
50. The Constitutional Court adds that, in accordance with Article 37 (2) of the Charter, these conclusions must be applied not only to natural persons but also to legal persons (cf. Section 55a of the Law on Advocacy and Contrario). At the same time, they affect not only cases where compulsory legal representation is required, and therefore not only proceedings before the Constitutional Court, but in accordance with Article 37 (2) of the Charter and other proceedings before courts, other state or public authorities, from the outset.
51. As regards cases of refusal to provide legal services on grounds of manifestly unfounded application or obstruction of law, the procedure laid down in Article 18c (5) and (6) of the Law on Advocacy has been taken into account. However, such cases must always be assessed on the basis of the individual circumstances of a particular case, not by changing the law which excludes access to legal aid on a flat-rate basis and thus also access to the court.
52. The Constitutional Court adds, as is apparent from the above, that the unconstitutional nature of the contested provision was not found in the extension of free legal aid to certain types of proceedings, but in the fact that at the same time it excludes applicants who cannot obtain legal aid on a flat-rate basis for reasons other than income and property ratios.
Conclusion
53. On the basis of the above, the Constitutional Court concluded that, if the legislator limited the right of the applicant to apply to the Czech Bar Association for legal service only in cases justified by income or property conditions, it infringed the right of access to the court guaranteed in Article 36 (1) of the Charter and the right to legal aid guaranteed in Article 37 (2) of the Charter. The Constitutional Court therefore complied with the proposal, and pursuant to Paragraph 70 (1) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., annulled Paragraph 18c (1) of the Law on Advocacy in the words "whose income and property ratios justify it, and '.
54. At the same time, the Constitutional Court postponed the enforceability of the finding by 31 December 2023 in order to create sufficient time for legislators to adopt a legal regulation that is already constitutionally consistent. In the new legal regulation, the legislature will also need to take into account the wording of the other provisions of the Law on Advocacy governing the procedure for the appointment of Advocate General Comoros to provide legal aid which has not been contested by the application but is closely linked to the contested regulation, in particular the provisions of Paragraph 23 (3).
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no 38 / 2023 Coll., on the application for annulment of part of the provision of Paragraph 18c (1) of Act No. 85 / 1996 Coll., on the Advocacy, as amended |
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| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 16.02.2023 |
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| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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