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The costs of unpaid legal representation provided by a court-appointed advocate SK 90/22

On 27 February 2024, the Constitutional Tribunal delivered its ruling on Mr R.M.’s constitutional complaint regarding the costs of unpaid legal representation provided by a court-appointed advocate[1].

The Tribunal adjudicated that § 2(1) in conjunction with § 4(1) of the Regulation of 3 October 2016 issued by the Minister of Justice with regard to the State Treasury’s coverage of the costs of unpaid legal representation provided by a court-appointed advocate (Journal of Laws – Dz. U. of 2023, item 2631; hereinafter: the 2016 Regulation) – insofar as the costs of unpaid legal representation provided by a court-appointed advocate, and incurred by the State Treasury, are specified in the said provision in the amount lower than the minimum fees for the services of advocates set in the Minister of Justice’s Regulation of 22 October 2015 on rates for the services of advocates (Journal of Laws – Dz. U. of 2023, item 1964, as amended; hereinafter: the Regulation on rates for the services of advocates) – is inconsistent with Article 64(2) in conjunction with Article 31(3), Article 32(1), second sentence, and Article 92(1), first sentence, of the Constitution of the Republic of Poland.
As to the remainder, the Tribunal discontinued the proceedings. The ruling was unanimous.

The Tribunal held that the essence of the constitutional issue arising from the complaint was not merely limited to assessing the single provision which set the amount of a fee for a particular service, rendered as a specific value (§ 17(3)(1) of the 2016 Regulation), but comprised the whole mechanism of remunerating advocates for providing legal representation as court-appointed attorneys.

Thus, the Tribunal deemed that what constituted the subject of the review was the norm laying down the general rule for specifying the amount of a fee constituting the State Treasury’s payment of the costs of unpaid legal representation provided by a court-appointed advocate, in accordance with which the amount of the fee was lower than the minimum rate for the services of advocates providing legal representation in substantively identical court cases where advocates were chosen by their clients, as specified in the Regulation on rates for the services of advocates.

Taking account of the fact that a fundamentally identical constitutional issue (the problem of differentiating rates for the services of advocates and legal advisers, who provide legal representation in court proceedings, depending on whether they have been appointed by courts or chosen by their clients) had already been resolved by the Tribunal in its judgments delivered in the cases with the following reference numbers: SK 66/19, SK 78/21, SK 85/22 and SK 53/22, in the present case the Constitutional Tribunal considered and accepted the findings and conclusions expressed in the cited judgments.

The Tribunal held that the advocate’s right to remuneration for provided legal representation constituted a legally protected property right. Differentiating protection (by means of different rules of remuneration), depending on whether legal representation is provided by advocates appointed by courts or chosen by their clients – in the Tribunal’s view – has no constitutional justification. Advocates constitute a group of similar professionals, and their relevant common characteristic within the meaning of Article 64(2) in conjunction with Article 32(1) of the Constitution consists in providing professional legal representation to various individuals and entities.

The mode of selecting an advocate (whether by a court or by a client) is not a legally relevant characteristic from the point of view of the legal regulation concerning the amount of the remuneration that is payable to the advocate, since this in no way affects the scope of services that may be provided under the power of attorney or the manner of providing the said services. This entails that attorneys provide the same services within the scope of legal representation, regardless of the fact whether they are appointed by courts or chosen by clients, they should be entitled to the same remuneration.

The Tribunal also assessed that the challenged norm was adopted outside of the remit of the statutory authorisation, which gave the Minister of Justice no grounds for differentiating the amounts of remuneration for the same services that were payable to court-appointed advocates in comparison with advocates who provided their services on the basis of contracts with their clients.

The judgment in the present case has the following effect: the norm specifying the amounts of fees for particular services indicated in chapters 2-4 of the 2016 Regulation will no longer be legally binding. As of the moment of the publication of the judgment in the Journal of Laws, when reimbursing the costs of legal representation provided by court-appointed advocate, what will be applicable is the minimum rates reserved for attorneys chosen by clients, set out in the Regulation on rates for the services of advocates.

The Tribunal critically assesses the situation where there has yet been no enforcement of its previous judgments that declare the unconstitutionality of the executive regulations on the remuneration of court-appointed attorneys (which refers to both advocates and legal advisers) as well as the Tribunal’s notifications (ref. nos. S 1/20 and S 2/22) [on the need for relevant legislative changes]. The Tribunal points out that the legislator is obliged to urgently create comprehensive and coherent legal norms in this respect.

The adjudicating bench of the Constitutional Tribunal in the case was composed of: Judge Jakub Stelina – Presiding Judge, Judge Wojciech Sych – Judge Rapporteur, and 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.