Exemption from legal costs, and court-appointed legal representation P 56/14
Imposed on legal entities, the legal obligation to prove the lack of sufficient means to cover, respectively, legal costs as well as the costs of legal representation by an advocate or a legal adviser is consistent with the Constitution.
On 4 April 2017, at 11 a.m., the Constitutional Tribunal publicly delivered a ruling, issued at a sitting in camera, on a question of law referred by the District Court for the Capital City of Warsaw (the 15th Division – Economic Matters) with regard to exemption from legal costs and court-appointed legal representation.
The Constitutional Tribunal adjudicated that Article 117(3) of the Act of 17 November 1964 – the Civil Procedure Code, insofar as it burdens legal entities with the legal obligation to prove their lack of sufficient means to cover the costs of legal representation by an advocate or a legal adviser as well as Article 103 of the Act of 28 July 2005 on legal costs in civil cases (Journal of Laws – Dz. U. of 2016 item 623 as well as 2017 item 85), insofar as it burdens legal entities with the legal obligation to prove their lack of sufficient means to cover legal costs, are consistent with Article 45(1) and Article 32(1) of the Constitution.
Moreover, the Constitutional Tribunal decided to discontinue the proceedings as to the remainder.
The ruling was unanimous.
There was one dissenting opinion; it was filed by Judge Stanisław Rymar with regard to the composition of the adjudicating bench.
The constitutional issue in the present case amounted to an answer to the question whether, imposed on legal entities, the legal obligation to prove the lack of sufficient means to cover, respectively, legal costs as well as the costs of legal representation by an advocate or a legal adviser is consistent with the right to a fair trial, as regards a properly devised court procedure, and the principle of equality before law.
The Tribunal stated that applicants applying for exemption from legal costs and for the appointment of professional legal representation may prove that they lack sufficient means for that purpose by submitting any available evidence. However, the applicants may not limit themselves to filing a statement about the lack of such means or to indicating factual circumstances without presenting any appropriate documents. What is vital in the course of considering such applications is the type of documents that make it possible to determine the financial situation of the applicants. The type of the documents depends on the kind and character of a legal entity applying for the aforementioned exemption and it should be adjusted to the said entity.
Proving the lack of sufficient means falls within the scope of the evidentiary procedure. It is the legal entity’s obligation not only to apply the procedure, but also to select evidentiary means. The type of evidentiary means should, in every case, be adjusted not only to a specific entity, but also to the current legal and factual situation – there should be a different way of proving the aforementioned lack of sufficient means by a capital company, a state-owned company or a local self-government legal entity. Were the legislator to enumerate all possible types of evidence that could be presented to determine the lack of sufficient means to cover the costs of proceedings or the costs of professional representation, this might prove excessive as well as could hinder a court’s assessment of a specific situation.
The Tribunal indicated that the court’s role is not to substitute a party in the fulfilment of its evidentiary obligation; nor is it to show in what way the said party is to prove its statements. Moreover, the possibility that the court admits evidence which has not been indicated by parties does not mean that the court is obliged to act in the event of the inaction of a party; the fact that the court admits evidence that has not been indicated by the party does not exempt the party from the necessity to take initiative, present true statements and provide evidentiary submissions in support thereof.
The principle of equality before law prescribes the same treatment with regard to similar subjects of rights and obligations, but it does not prohibit the adoption of different legal solutions with regard to the subjects that differ in respect of certain essential characteristics.
The Tribunal stated that individuals and legal entities are subjects of rights and obligations that share no common essential characteristic which would justify the necessity to treat them equally as regards the legal obligation to prove the lack of sufficient means to cover legal costs and the costs of legal representation by an advocate or a legal adviser.
The hearing was presided over by Judge Małgorzata Pyziak-Szafnicka, and the Judge Rapporteur was Judge Stanisław Rymar.