Limiting the possibility of reimbursing the incurred costs of the defence counsel’s fee only up to the amount of the prescribed minimal fee in the case of a person with regard to whom criminal proceedings have been discontinued SK 105/20
On 4 October 2023, at a sitting in camera, the Constitutional Tribunal considered the constitutional complaint pertaining to the amount of legal representation costs which are to be reimbursed to the party.
The Tribunal adjudicated that § 15(2) 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 2023, item 1964) is inconsistent with Article 2 in conjunction with Article 32(1) and Article 42(2) of the Constitution of the Republic of Poland.
As to the remainder, the proceedings were discontinued.
The ruling was adopted by a majority vote.
There was one dissenting opinion, filed by Judge Mariusz Muszyński.
THE CONSTITUTIONAL ISSUE
In the present case, the complainant raised the issue of discrimination in respect of reimbursement for the incurred costs of the defence counsel’s fee, which manifested itself as follows: in cases that did not require the conduct of a hearing, the costs which were subject to reimbursement were established solely in the amount equal to the minimal fee prescribed for relevant proceedings; whereas in cases where a hearing was conducted, the amount of reimbursed costs might make up to six times the amount of the said minimal fee.
THE PROVISION THE CONSTITUTIONALITY OF WHICH WAS EXAMINED BY THE TRIBUNAL
What constituted the subject of the constitutional review in the present case was § 15(2) 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 2023, item 1964; hereinafter: the Regulation on rates for the services of advocates), which read as follows: “In cases where the conduct of a hearing is not required, the rate shall be set in the amount equal to the minimal fee”.
THE EVALUATION OF THE CONSTITUTIONALITY OF THE EXAMINED PROVISION
In the Tribunal’s view, § 15(2) of the Regulation on rates for the services of advocates clashes with the principle of non-discrimination within the scope of the right to be reimbursed for incurred defence costs in criminal proceedings, as – in an unjustified way, without any legal basis – it differentiates with regard to reimbursing incurred costs of professional legal representation (by defence counsel), depending on whether [or not] in given proceedings a hearing has been conducted.
The statutory delegation set forth in Article 16(2) and (3) of the Act on Advocates makes no mention in this respect, whereas Article 616(1)(2) and Article 632(2) of the Criminal Procedure Code (i.e. provisions which hierarchically override those of the Regulation on rates for the services of advocates) does not leave the Minister of Justice with any room for manoeuvre as regards setting any limitations on adjudging the reimbursement of the multiple amounts of the minimal fee.
Defending the challenged provisions, the Minister of Justice argued that “the Constitution of the Republic of Poland does not justify the requirement that the legislature is to adopt law which makes it possible to claim compensation for any damage arising from the actions of public authorities. The risk arising from the commencement of the criminal procedure in the case of a suspicion that a criminal offence has been committed, must be borne in the interest of the protection of the common good by all citizens. The resulting burdens, caused by the legal actions of public authorities, may not be considered to be the basis of an unconditional duty of compensation on the part of the state”.
The Constitutional Tribunal finds such reasoning unacceptable – in particular in the context of the principle of social justice, implied in Article 2 of the Constitution – since it is based on the disrespectful attitude of the state towards the individual.
In cases, especially criminal ones, the citizen may, to no extent, bear any negative consequences (including financial ones) of the actions of state authorities (including lawful actions), when ultimately the citizen was not convicted by a legally effective judgment, and even more so when the preliminary proceedings carried out against him/her were discontinued, due to no confirmation that a prohibited act had been committed.
The Constitutional Tribunal presented the view that “the choice of a method for determining the minimum fee for legal counsel (whether chosen by a party or appointed by the competent court) falls within the ambit of the norm-maker, who in this respect – within the limits of the constitutional order – enjoys considerable regulatory discretion” (the Tribunal’s judgments of: 21 June 2017, ref. no. SK 35/15 as well as 27 February 2018, ref. no. SK 25/15), which was referred to by the Public Prosecutor-General and the Minister of Justice.
However – what the said participants in the proceedings overlooked – the above-mentioned view had been elaborated on in the judgment of 23 April 2020, ref. no. SK 66/19, in which the Constitutional Tribunal had clearly stated that: “in the context of Article 64(2) in conjunction with Article 32(1), second sentence, as well as Article 31(3) of the Constitution, the said discretion does not justify the arbitrary determination of the content and limits of particular property rights, which fulfil identical functions and protect similar interests.
The provision of Article 64(2) of the Constitution should be treated as one of the detailed references of the general principle of equality, as expressed in Article 32(1) of the Constitution, to particular areas of social life (…). For that reason, Article 64(2) of the Constitution ought to be interpreted and applied in close conjunction with Article 32 of the Constitution, since the ensuring of equal legal protection to everyone constitutes an element of equal treatment by public authorities (…).
What follows from the principle of equality is the requirement of the uniform treatment of the subjects of rights and obligations within a specified class (category). The aforementioned principle is complemented by the prohibition of discrimination against the subjects of rights and obligations for any reason whatsoever in political, social, or economic life (Art. 32(2) of the Constitution)”. The said view was repeated by the Tribunal in the following judgments: of 20 December 2022, ref. no. SK 78/21; of 19 April 2023, ref. no. SK 85/22; and of 20 April 2023, ref. no. SK 53/22; it was also approved by the Tribunal when it was adjudicating on in the case ref. no. SK 105/20.
With regard to the present case, the Constitutional Tribunal held that the circumstance that, in the relevant proceedings, a hearing was conducted may not, however, affect the financial situation of a party to (a participant in) the proceedings, and in particular the person with regard to whom – as in the case of the complainant – the preliminary proceedings were discontinued. The evaluation of the situation regulated by the challenged provision must be influenced by the ultimate status of the party to (the participant in) criminal proceedings, namely: the person accused before state authorities and society; it is decisive here to determine the person’s guilt or innocence as well as to discontinue the preliminary proceedings due to the non-existence of the characteristics of a prohibited act. What should be recognised as the relevant feature – justifying the way of determining the cost of proceedings (also criminal ones) – is the outcome of the proceedings (in criminal cases: finding the accused guilty or acquitting the accused, and/or discontinuing the proceedings since no characteristics of a prohibited act were identified at the stage of the preliminary proceedings).
The solution adopted in § 15(2) of the Regulation on rates for the services of advocates (which affects all types of proceedings) is not based on any rational arguments (not only constitutional ones) which would justify the discriminatory treatment of parties to (participants in) proceedings solely and exclusively on the grounds that a hearing would actually be held in the said proceedings; the solution also clearly contradicts Article 616(1)(2) and Article 632(2) of the Criminal Procedure Code. Nota bene in the explanatory note to the Draft Regulation of 25 September 2015 on rates for the services of advocates, the Minister of Justice presented no reasons for his departure from the previous wording pertaining to the possibility of reimbursing the multiple amounts of the minimum fee – on the contrary, on pages 21-22, the Minister merely presented a brief overview of the content of the drafted provisions (see legislacja.gov.pl/docs//517/12275507/12302753/12302754/dokument185684.pdf).
In the view of the Constitutional Tribunal, there is no doubt that, in cases requiring professional legal expertise, the proper exercise of duties by an advocate (irrespective of the fact whether s/he is an attorney and/or a defence counsel chosen by a party or appointed by the competent court) frequently requires substantial work.
In the present case, the challenged provision manifests that the norm-giver – by applying the arbitrary criterion (which has no basis: whether a legal or substantive ones) of a hearing carried out in the relevant proceedings – caused the right granted to a party to (a participant in) proceedings to be reimbursed for the incurred costs of the proceedings (of the legal defence) in the amount equal to, or similar to, the actually incurred expenses to become an illusory right when no hearing is conducted.
The solution adopted in § 15(2) of the Regulation on rates for the services of advocates gives rise to overt discrimination of some persons in comparison with others, despite the fact that they are in a similar situation, which is aptly illustrated by the example given by the complainant in the context of criminal proceedings: “a person with regard to whom proceedings are discontinued after the conduct of a hearing may every time receive the reimbursement of much higher costs of legal defence, even if the duration of the proceedings and the extent of the evidentiary material are insignificant, whereas the person with regard to whom the preliminary proceedings have been discontinued is to be reimbursed only with the amount equal to the minimum fee”.
To sum up, § 15(2) of the Regulation on rates for the services of advocates in identical cases: when with regard to one person a hearing has been conducted – the said provision makes it possible to adjudge the reimbursement of the costs of the proceedings, taking account of multiple amounts of the minimum fee; whereas when with regard to another person a determination is issued at a sitting in camera – the costs of the proceedings may be reimbursed only in the amount equal to the minimum fee. Contrary to Article 616(1)(2) and Article 632(2) of the Criminal Procedure Code, and despite the lack of the authorisation referred to in Article 16(2) and (3) of the Act on Advocates, the aforementioned provision in an unjustified way narrows down the possibility of adjudging the reimbursement of the amount equal to the multiple amounts of the minimum fee only in the cases where a hearing has been conducted.
The issue of determining rates for the services of advocates before the authorities administering justice and before public prosecution authorities is linked with the individual’s constitutional right to defence. What may constitute one of actual obstacles hindering access to defence is excessive costs of proceedings. Therefore, in the current legal situation, it is even more necessary for the Minister of Justice to observe the boundaries prescribed in the relevant statutory provisions, which pertain to the fundamental rights of the individual.
Also, it is of key significance to determine minimum rates and the multiple amounts thereof for the services of advocates which are agreed upon in the relevant contract signed between the client and the advocate; indeed, those rates – as it follows from the Regulation on rates for the services of advocates – indirectly affect the costs of proceedings.
In the Constitutional Tribunal’s view, the issue of rates for professional legal representation – which are to be taken into account when the reimbursement of the costs of proceedings is adjudged – is of such significance for the citizen’s situation that a sub-statutory normative act may not arbitrarily determine (in the case under examination: by virtue of the criterion of a hearing carried out in the relevant proceedings) in which cases the party will be reimbursed the costs of proceedings comprising the multiple amounts of the minimum fee, and in which cases this will not happen.
THE EFFECT OF THE JUDGMENT
As a result of the Tribunal’s judgment, § 15(2) of the Regulation on rates for the services of advocates will cease to have effect, which entails eliminating from the legal system the provision requiring, in cases in which no hearing has been carried out, the application of only the minimum fee that is appropriate for relevant proceedings. The complainant and other persons concerned have the right to reverse the rulings on costs issued in accordance with § 15(2) of the Regulation on rates for the services of advocates, by invoking Article 190(4) of the Constitution and the relevant procedural provisions.
THE SIGNALLING DECISION
With relation to the judgment of 4 October 2023, the Constitutional Tribunal issued a signalling decision in which it notified the Minister of Justice about the necessity to:
(1) repeal § 15(2) of the Regulation of 22 October 2015 issued by the Minister of Justice as regards rates for the services of legal advisers[1] (Journal of Laws – Dz. U. of 2023, item 1935), which has the identical wording to the wording of § 15(2) of the Regulation on rates for the services of advocates, which has been deemed inconsistent with Article 2 in conjunction with Article 32(1) and Article 42(2) of the Constitution of the Republic of Poland;
(2) delete, in § 15(3) of the Regulation on rates for the services of advocates and § 15(3) of the Regulation on rates for the services of legal advisors, the following words: “in cases where the conduct of a hearing is required”.
The adjudicating bench of the Constitutional Tribunal in the case was composed of: Judge Piotr Pszczółkowski – Presiding Judge; Judge Andrzej Zielonacki – Judge Rapporteur; Judge Zbigniew Jędrzejewski; Judge Mariusz Muszyński; Judge Bogdan Święczkowski.
[1] Under Polish law, both advocates (Pl. adwokat) and legal advisers (Pl. radca prawny) make up the category of attorneys (attorneys-at-law), admitted to the Bar, and fully qualified to provide professional legal representation; the main difference between the first and the latter is the range of contracts on the basis of which they are permitted by law to provide their legal services.