The costs of unpaid legal representation provided by a court-appointed advocate SK 78/21
Ref. No. SK 78/21
JUDGMENT
IN THE NAME OF THE REPUBLIC OF POLAND
Warsaw, 20 December 2022
The Constitutional Tribunal, composed of:
Jarosław Wyrembak – Presiding Judge
Zbigniew Jędrzejewski
Andrzej Zielonacki – Judge Rapporteur,
having considered, at a sitting in camera on 20 December 2022 – in accordance with Article 92(1)(1) of the Act of 30 November 2016 on the Organisation of the Constitutional Tribunal and the Mode of Proceedings Before the Constitutional Tribunal (Journal of Laws – Dz. U. of 2019, item 2393) – Mr G.W.’s constitutional complaint, lodged with the Tribunal for it to consider the conformity of:
§ 17(1)(2) and § 17(2)(3) in conjunction with § 4(1) and (2) of the Regulation of 3 October 2016 issued by the Minister of Justice as regards the State Treasury’s payment of the costs of unpaid legal representation provided by a court-appointed advocate (Journal of Laws – Dz. U. of 2019 item 18, as amended) – “in the version that has been binding since 2 November 2016 – insofar as the said provision, in criminal cases, sets forth the minimum fee to be paid to a court-appointed counsel in the nett amount of PLN 300 for preliminary proceedings and in the nett amount of PLN 420 for court proceedings, where the said minimum fee rates are lower than the rates for an advocate chosen and appointed as a defence counsel by the defendant, on the basis of the provisions of the Regulation of 22 October 2015 issued by the Minister of Justice as regards rates for the services of advocates (Journal of Laws – Dz. U. of 2015 item 615, as amended), and the increase of the minimum fee up to the maximum amount, which may at most constitute 150% of the minimum rate was contingent on the adjudicating court’s consideration of factors mentioned [in] § 4(2) of the Regulation as regards the State Treasury’s payment of the costs of unpaid legal representation provided by a court-appointed advocate” – to Article 32(1), first and second sentences, in conjunction with Article 64(1) and (2) as well as Article 45(1) and Article 2 in conjunction with Article 31(3) as well as Article 92(1), first sentence, of the Constitution of the Republic of Poland, as well as to Article 16(1), (2) and (3) of the Act of 26 May 1982 – the Law on Advocates (Journal of Laws – Dz. U. of 2020 item 1651, as amended),
adjudicates as follows:
§ 17(1)(2) and § 17(2)(3) of the Regulation of 3 October 2016 issued by the Minister of Justice as regards the State Treasury’s payment of the costs of unpaid legal representation provided by a court-appointed advocate (Journal of Laws – Dz. U. of 2019 item 18, as amended) are inconsistent with Article 64(2) in conjunction with Article 31(3), Article 32(1), Article 2 and Article 92(1), first sentence, of the Constitution of the Republic of Poland, due to the fact that the fee rates indicated therein with reference to an advocate acting as a court-appointed defence counsel are lower than the rates in the same cases where an advocate has been chosen and appointed as defence counsel by the defendant.
Moreover, the Tribunal decides:
to discontinue the proceedings as to the remainder.
The ruling was adopted by a majority vote.
Jarosław Wyrembak (dissenting opinion)
Zbigniew Jędrzejewski
Andrzej Zielonacki