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The amount of a minimum fee for legal representation by a court-appointed counsel in appeal proceedings SK 83/19

On 13 June 2023 at 11.00 a.m., the Constitutional Tribunal publicly delivered its ruling issued with relation to the constitutional complaint lodged by Mr J. S. with regard to the amount of a minimum fee for legal representation by a court-appointed counsel in appeal proceedings.

The Constitutional Tribunal adjudicated that § 16(1)(2) of the Regulation of 3 October 2016 issued by the Minister of Justice with regard to the State Treasury’s payment of the outstanding costs of legal representation provided by court-appointed advocates is inconsistent with Article 92(1), first sentence, in conjunction with Article 64(1) of the Constitution of the Republic of Poland. The Tribunal discontinued the proceedings as to the remainder. The ruling was unanimous.

The Constitutional Tribunal held that the central constitutional issue in the present case was the rank of the act pertaining to the counsel’s fee [within the hierarchy of the sources of law]. In the Tribunal’s view, a regulation may not shape the financial aspect of subjective property rights, if the said regulation does not implement a statute within that scope, as is required by Article 92(1), first sentence, of the Constitution.

The complainant aptly indicated that it is not possible to assume that the Regulation under examination implements the statute by determining fee rates (i.e. the financial aspect of subjective property rights), in the situation where the statute does not regulate that subject matter, and in particular: it does not set the limits of basic fees specified in the said Regulation.

The Constitutional Tribunal also emphasised that the advocate’s right to be reimbursed by the State Treasury for the outstanding fee for legal representation, provided by the advocate in cases where s/he was a court-appointed counsel, remains related to the content of Article 64(1) of the Constitution and is covered by the protection provided for therein – as a subjective right to property rights, at times categorised as the so-called subjective right under public law.

The Constitutional Tribunal emphasised that, for formal reasons, the direct effects of the issued judgment may only concern the challenged provision. Due to the broad scope of the application of the regulatory method challenged by the Tribunal – also with regard to professional groups other than advocates – the Constitutional Tribunal stressed a highly urgent need to revise the binding legal solutions in that respect, with the consideration of the Tribunal’s determination delivered in the present case. Indeed, the said determination may at least indirectly constitute a ground for challenging the constitutionality of other numerous, currently binding, provisions which pertain to the so-called subjective property rights under public law.

At the same time, the Constitutional Tribunal emphasised that persons entitled, on the basis of the Constitution and statutes, to the so-called property rights under public law may also on the basis of the Constitution demand that the financial aspects of those rights be regulated by the legislator at the statutory level, and not by the executive branch of government at the level of regulations. Indeed, the mode of regulating those financial aspects may also be of significance with a view to other values than the mere protection of property rights, e.g. in view of the freedom to choose occupation.

The adjudicating bench of the Constitutional Tribunal in the case was composed of: Judge Piotr Pszczółkowski – Presiding Judge; Judge Jarosław Wyrembak – Judge Rapporteur; Judge Andrzej Zielonacki.