The Constitutional Court found No. 43 / 2020 Coll.

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 (legal tariffs), as amended, is deleted in the words "established by the Court under the law governing the criminal liability of legal persons."

1. Constitutional complaints pursuant to Article 87 (1) (d) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and Article 72 et seq. of Law No 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court), registered under sp. zn. III.

2. The constitutional complaint, as well as the constitutional complaint of the contested decision, alleges that, by judgment of the Regional Court in Ústí nad Labem ("the District Court ') of 17.4.2018 No 3 T 27 / 2016-1110, Mada Trans, a. s., in liquidation, the company was sentenced to the death of a legal person and, pursuant to Article 34 (5) of Act No. 418 / 2011 Coll., on the criminal liability and proceedings against them (" the Law on the criminal liability of legal persons'), that company was designated as a guardian, namely a complainant. In these circumstances, by order of 22 October 2018 No 3 T 27 / 2016-1124, the district court granted the complainant, as a guardian, the remuneration and reimbursement of the final expenses of a total of CZK 16 819 (1st operative part) and did not accept the remuneration and reimbursement of the final expenses of CZK 15 301 (2nd operative part) because, unlike the complainant, it came from Section 9 (5) of the Decree of the Ministry of Justice No. 177 / 1996 Coll., on the fees of lawyers and compensation of lawyers for the provision of legal services (legal tariff), as amended. Paragraph 9 (5) of the Law on the Law governing the criminal liability of legal persons appointed by a court under a 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 cannot, however, take part in proceedings for a transitional period or who is unable to express himself clearly, be regarded as a tariff value of CZK 1 000. 'The Regional Court then rejected the complainant's subsequent complaint under § 141 et seq. It fully agrees with the District Court when applying Paragraph 9 (5) of the Complainant's Law Tariff to the complainant's case, as well as the correction of the extent of some of the complaints and the remuneration requested for them (but these adjustments are not essential even in the complaint argument).

3. In a constitutional complaint, the complainant first recalls that, under the Act on the Criminal Liability of Legal Persons, he was appointed guardian of the accused trading company Mada Trans, a. s. in liquidation, in criminal proceedings for the misconduct of misconduct of data on the state of the economy and assets. That is why he also suggested that he be awarded a reward as a defence in criminal matters. However, it was decided by both courts to award him a remuneration under § 7 (2) and § 9 (5) of the Law Tariff. Instead of paying a fee for one act of legal service pursuant to § 10 (3) of the legal tariff (i.e. the amount of CZK 1 000 to CZK 3 100), the complainant received a remuneration of only CZK 250 for one act of legal service, which he considered to be quite inadequate, since as a guardian of the legal person he was effectively defending it. Moreover, as a guardian, he claims to have even wider responsibilities than a lawyer (for example, he must appear personally for questioning, he cannot be replaced by his associate). The activity of the guardian appointed for the proceedings is, in accordance with Act No. 85 / 1996 Coll., on the Advocacy, as amended, the performance of the lawyer (the complainant is thus bound not only by the rules of professional ethics but has the same responsibility and must be properly insured within the scope of the statutory obligations). In this context, the complainant refers, inter alia, to the finding of sp. zn. II. In its constitutional complaint, the complainant argues that the court failed to recognise the cost of a single car ride, which is more precisely specified in the constitutional complaint.

4. The Constitutional Court, by a finding of 24.9.2019 sp. zn. Pl. ÚS 4 / 19 (302 / 2019 Coll.), annulled part of § 9 (5) of the legal tariff in the words "the residence of which is not known," on the date of the publication of that finding in the Collection of Laws, since it concluded that the part of the provision cited is contradictory to the principle of equality in relation to the right to obtain life-time supplies under Article 26 (3) of the Charter and the right to legal aid pursuant to Article 37 (2) of the Charter, for reasons which it has detailed in the document. At the same time, he added that the reasons for the non-constitutionality set out in the finding in the sp. zn. Therefore, if the general courts find in other proceedings which they have conducted that the reasons for non-constitutionality also affect another part of Paragraph 9 (5) of the Law Tariff, they will not apply it in a particular case, since, pursuant to Article 95 (1), The Constitution is only bound by the law and the international treaty, which is part of the rule of law.

5. The Third Chamber of the Constitutional Court took the view, in the preliminary assessment of the Constitutional complaint, that part of the hypothesis of Paragraph 9 (5) of the Law on the Law on the Criminal Liability of Legal Persons ("the Law on Criminal Liability of Legal Persons'), which was used in the proceedings before the District Court, sp. zn. 3 T 27 / 2016 and which resulted in proceedings concerning the Constitutional Complaints of the Complainant (designated guardian) registered under sp. III. ÚS 1251 / 19. For these reasons, the Constitutional Court, by order of 29.10.2019 sp. zn. III. ÚS 1251 / 19 of the proceedings under § 78 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 48 / 2002 Coll., therefore suspended and proposed that the full part of the Constitutional Court be annulled.

6. 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 Ministry of Justice (hereinafter referred to as "the Ministry"); The Ministry did not use the opportunity to comment on the proposal.

7. According to Article 69 (3) of the Law on the Constitutional Court, the Constitutional Court sent the application to the Ombudsman with a request for communication as to whether it was intervening. The Ombudsman responded to that call by a letter of 9 December 2019, in which she informed the Constitutional Court that she would not exercise her procedural right under Paragraph 69 (3) of the Constitutional Court Act and would not intervene.

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

9. In the procedure for the control of the standards referred to in Article 87 (1) (b) of the Constitution, the Constitutional Court must first examine whether the "other legislation 'has been adopted and issued in a constitutionally prescribed manner pursuant to Article 68 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 48 / 2002 Coll.

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

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

12. Paragraph 9 (5) of Decree No 177 / 1996 Coll., as amended (including the findings of sp. zn. Pl. ÚS 4 / 19 and sp. zn. Pl. ÚS 22 / 19 of 14.1.2020 (28 / 2020 Coll.)), reads (marked in bold, the part proposed for cancellation): "In the performance of the duties of guardian appointed by the administrative body 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 by the court or tribunal of a party who has failed to deliver to a known address in a foreign country which has been affected by a mental disorder or is unable to express 1b), is regarded as a tariff value of CZK 1 000.

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

14. Although the finding of sp. zn. Pl. ÚS 4 / 19 specifically concerned only the situation where the lawyer represented the party to the unknown stay (for limited active legitimacy at the time of the referring III Chamber of the Constitutional Court), the Constitutional Court stated here that a breach of the principle of equality in the context of remuneration could be fulfilled even when using another part of the hypothesis § 9 (5) of the Law Tariff. As mentioned above, in the proceedings prior to the current constitutional complaint, the complainant was appointed guardian of a commercial company which was sentenced to the punishment of the abolition of a legal entity. 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 convicted legal persons to be granted a remuneration twice as much as, for example, a representative in accordance with § 30 ° N.

15. According to the Constitutional Court, the principle of equal treatment following the right to do business and the right to obtain the means of living under Article 26 (1) and (3) of the Charter has also been infringed in this case (cf. paragraphs 18 et seq., in the form of a dependent activity such as an employed lawyer or as an advocate in a commercial company or in the form of a business, and the Constitutional Court understands the right to do business as one of the possibilities to obtain the means of living for work.

16. Intervention with those fundamental rights must also be seen in the context of the right to legal aid under Article 37 (2) of the Charter. If the legislator has determined a significantly lower level of remuneration for a lawyer as guardian of an accused legal person who does not have a person competent to conduct criminal proceedings, or a legal person or his agent can prove that documents cannot be served (cf. paragraphs 34 (4) and (5) of the Law on the Criminal Liability of Legal Persons), he has thus degraded the work of established lawyers in such 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, it is also necessary to respect the principle that each person has the right to a fair remuneration for the work he has done, or the same remuneration for the work of the same value [Article 28 of the Charter per analogiam, Article 7 (a) (1) of the International Pact on Economic, Social and Cultural Rights], which is to be equivalent in these cases.

17. It should be added that it is not essential that legal aid is not provided on the basis of a contract but on the basis of a judgment of the court, and that such a decision is the State's duty 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.

18. The link between the remuneration and the level of legal assistance provided by the Constitutional Court for Brief refers in particular to the finding of 13.9.2016 sp. zn. I. ÚS 848 / 16 (N 174 / 82 SbNU 693) and to the already referred finding of sp. zn. Pl. ÚS 4 / 19. In addition to the reasons set out there, the Constitutional Court notes that the conclusions of these findings cannot be understood as meaning that the advocates' conduct of the advocacy (which in this context includes the exercise of custody) would be carried out in a separate manner from any ethical aspects and from the principle of their belonging to the functioning of a democratic society (to which they should contribute). On the other hand, the conclusions of the Supreme Court judgment of 21 January 2015, sp. zn. 33 Cdo. 4495 / 2014, according to which the conduct of advocacy is a special business activity, which is not only regulated by law, but is significantly modified by state regulations. According to them, a lawyer must not, in particular, diminish the dignity of the state of law, be obliged to comply with both the rules of professional ethics and the rules of competition, with the fact that even a self-governing organisation of lawyers can decide that a lawyer is obliged to provide legal services to his designated client in a specified case free of charge or for reduced remuneration. The exercise of advocacy is therefore indeed a special activity strongly influenced also by generally accepted rules of decency and ideas about what is moral and what is no longer. On the other hand, the advocacy is still designed as a service provided for (adequate) remuneration even with the fact that, although the State does not guarantee the achievement of profit, [cf. the finding of 22 October 2013 sp. zn. However, the actual fulfilment of moral correctness (including the pursuit of profit) may, in the view of the Constitutional Court, be linked 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, even by abolishing the provisions of the Constitutional Court, which does not comply with the constitutional order.

19. For all the above reasons, the Constitutional Court notes that if the legislator has established a lower remuneration to be received by a lawyer as guardian of a legal person established by a court under a law governing the criminal liability of legal persons, 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 its living needs by works 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.