Refusal as well as revocation of the ex officio appointment of defence counsel K 30/11
The lack of a judicial review for dispositions issued by the president of a given court to refuse the ex officio appointment of defence counsel for an accused person who has filed a motion in accordance with Article 78(1) of the Code of Criminal Procedure as well as failure to consider the possibility of appealing against a court’s decision to revoke the ex officio appointment of defence counsel are inconsistent with the Constitution.
At the hearing on 8 October 2013 at 1.00 p.m., the Constitutional Tribunal considered an application, submitted by the Polish Ombudsman, with regard to refusal and revocation of the ex officio appointment of defence counsel.
The Constitutional Tribunal adjudicated that Article 81(1) of the Act of 6 June 1997 - the Code of Criminal Procedure, insofar as it did not provide for a judicial review of a disposition issued by the president of a given court to refuse the ex officio appointment of defence counsel for an accused person who had filed a motion in accordance with Article 78(1) of the Code of Criminal Procedure, was inconsistent with Article 42(2) of the Constitution in conjunction with Article 45(1) and Article 78 of the Constitution.
Moreover, the Tribunal stated that Article 78(2) of the Code of Criminal Procedure, insofar as it did not provide for appeals against a decision of the court to revoke the ex officio appointment of defence counsel, was inconsistent with Article 78 in conjunction with Article 42(2) of the Constitution.
As to the remainder, the Tribunal discontinued the proceedings.
The challenged provisions regulate the rights of an accused person as regards his/her exercise of the right to defence in criminal proceedings. The challenged provisions concern requirements for the ex officio appointment of defence counsel (Article 81(1) of the Code of Criminal Procedure) as well as circumstances in which the accused may be deprived of the right to have defence counsel appointed ex officio (Article 78(2) of the said Code).
The Constitutional Tribunal drew attention to the significance of the right to defence in criminal proceedings, which arose from Article 42(2) of the Constitution. It was considered to be one of the basic principles of criminal proceedings, as well as an elementary standard of a democratic state ruled by law. Thus, it had to be real and effective, and not illusory, which required providing individuals with conditions where they would be able to exercise the said right in order to protect their interests.
The Tribunal adopted a thesis that the ex officio appointment of defence counsel - regardless of the fact whether it had been done as part of obligatory defence on the basis of Article 79(1) and (2) as well as Article 80 of the Code of Criminal Procedure, or on the basis of Article 78(1) of the said Code ‑ determined the way of exercising the right to defence by the accused. Thus, the president of a court that had jurisdiction to consider a given case, acting pursuant to Article 81(1) of the said Code, decided about the exercise of one of subjective rights vested in the accused. The Constitutional Tribunal assumed that decision to appoint or refuse to appoint defence counsel ex officio for the accused that had filed a motion in accordance with the procedure specified in Article 78(1) of the Code of Criminal Procedure fell within the scope of a “case” within the meaning of Article 45(1) of the Constitution. Indeed, such a decision determined the rights or obligations of a specific subject on the basis of legal norms that arose from legal provisions. By assessing the motion filed by the accused who had requested the ex officio appointment of defence counsel due to his/her inability to pay the costs of appointing the defence counsel of his/her choice, the president of a given court determined both the form of exercising the right to defence in criminal proceedings, as well as, to a large extent, the way of exercising that right.
A decision concerning the ex officio appointment of defence counsel should, in principle, be subject to a judicial review, in accordance with Article 45(1) as well as Article 78 of the Constitution. A possible departure from the principle that each party should have the right to appeal against judgments and decisions made at first stage would only be admissible under the premise that it would be possible to justify it by extraordinary circumstances that were constitutionally legitimised. In the context of the case under examination, the Tribunal did not identify such circumstances that would justify a departure from the above-mentioned principle that provided for an appeal against a decision on refusal of the ex officio appointment of defence counsel for an accused person who could not afford appointing the defence counsel of his/her choice. This was neither confirmed by the premiss of an important interest in proceedings, nor the requirement to carry out proceedings in an efficient and expeditious way. Indeed, determining a way in which the accused would exercise his/her subjective right to defence in criminal proceedings concerned one of the basic guarantees determining his/her status in criminal proceedings.
A decision issued on the basis of Article 81(1) in conjunction with Article 78(1) of the Code of Criminal Procedure fell outside the scope of jurisdiction of the court within the meaning of the Constitution. The ex officio appointment of defence counsel for an accused who could not afford appointing the defence counsel of his/her choice was a power vested in the president of a court which was competent to consider a given case and a decision issued by the president was not subject to a judicial review.
The other challenged provision concerned a slightly different procedural situation, namely the revocation of the ex officio appointment of defence counsel by a court if it turned out that there were no circumstances which permitted the appointment of the counsel. The legislator did not provide for the verification of the said procedural decision.
In the view of the Constitutional Tribunal, the revocation of the ex officio appointment of defence counsel on the basis of Article 78(2) of the Code of Criminal Procedure concerned an issue that was of fundamental significance as regards the exercise of the right to defence in criminal proceedings by the accused. Indeed, that issue determined the procedural situation of the accused, weighing in favour of a change in the way the accused exercised the guarantee of the right to defence in its formal aspect. In the case where no defence counsel was chosen and the ex officio appointment of defence counsel was revoked, the accused would have to singlehandedly present his/her case before the court. The decision of the court on the basis of Article 78(2) of the Code of Criminal Procedure directly affected the powers of the accused which had arisen from the guarantee of the right to defence (Article 42(2) of the Constitution). It should be subject to substantive verification and might not be subject to exception referred to in Article 78(2) of the Constitution.
The hearing was presided over by Judge Leon Kieres, and the Judge Rapporteur was Judge Marek Zubik.
The judgment is final and its operative part shall be published in the Journal of Laws.