The terms of determining rates for the services of advocates as well as the State Treasury’s payment of the costs of unpaid court-appointed legal representation SK 35/15
‘The choice of a method for determining the minimum rate for legal representation falls within the remit of the legislator, who – within the limits of the constitutional order – enjoys considerable regulatory discretion,’ stated the Constitutional Tribunal.
On 21 June 2017 at 9.00 a.m., the Constitutional Tribunal publicly delivered its ruling, issued at a sitting in camera, with relation to the constitutional complaint lodged by Ms B. K.-A. with regard to the terms of determining rates for the services of advocates as well as the State Treasury’s payment of the costs of unpaid court-appointed legal representation.
The Constitutional Tribunal adjudicated that § 12(1)(1) of the Regulation of 28 September 2002 issued by the Minister of Justice as regards rates for the services of advocates as well as the State Treasury’s payment of the costs of unpaid court-appointed legal representation, in the version that was binding until 31 July 2015 – insofar as it specifies the minimum rate for the services of an advocate in a case concerning compensation for the ineffective termination of an employment agreement – is consistent with Article 45(1) in conjunction with Article 31(3) of the Constitution of the Republic of Poland.
Moreover, the Tribunal decided to discontinue the proceedings as to the remainder.
The ruling was unanimous.
The issue presented in the aforementioned constitutional complaint concerned the calculation of the costs of court proceedings. The doubts of the complainant concerned the terms of allocating costs among the parties of proceedings from the point of view of a breach of the right to a fair trial. The complainant challenged a legal norm derived from § 12(1)(1) of the Regulation of 28 September 2002 issued by the Minister of Justice, in accordance with which the minimum rate for the services of an advocate in a case concerning the ineffective termination of an employment agreement is PLN 60.
According to the complainant, the distribution of the costs of a trial in the way that the winning party may not receive the reimbursement of the costs of legal representation – in the amount calculated proportionately to the value of the subject of the dispute – incurred by paying the remuneration of a chosen advocate, constitutes an economic barrier which limits access to court.
In the view of the complainant, the challenged provision makes it impossible to take account of actual work carried out by a lawyer and costs related thereto which are incurred by a party represented by the lawyer, and thus the provision rules out the possibility that the party will receive the fullest compensation for the necessary costs rightly incurred in the course of court proceedings.
The Constitutional Tribunal disagreed with the complainant’s stance that the non-inclusion of all incurred costs of legal representation in the category of the indispensable costs of the trial of a party represented by a chosen advocate disproportionately infringed the right to a fair trial.
Indeed, Article 45(1) of the Constitution does not guarantee the reimbursement of any costs incurred by a party pursuing its claims or defending its rights. What may not be derived, in particular, from the said provision is the court’s obligation to order the reimbursement of the costs of proceedings in the amount specified in an agreement entered into by a party winning a trial and its lawyer.
Indeed, when adjudicating upon the costs of proceedings, the court is not bound by the provisions of an agreement between an advocate and his/her client in which the parties to the agreement may freely formulate the provisions of the agreement and a rate charged by the said lawyer.
When determining an amount of payment for the services of an advocate for legal representation, a court takes account of the degree of complexity of a case, the workload of the advocate and his/her contribution to the explanation and determination of the case; the court assesses this within the limits of maximum rates specified in a relevant normative act concerning advocates’ fees (in casu: the sixfold of the minimum rate – § 2(2) of the Regulation of 28 September 2002 issued by the Minister of Justice).
In the Tribunal’s view, the limitation of rates – explicitly arising from Article 98(4) of the Civil Procedure Code, in cases pending in accordance with the said Code – is justified by the need to predict the financial consequences of a trial as well as to protect the losing party against the winning party’s excessive estimation of its advocate’s fees (which concerns to an equal extent an employee as well as an employer, in cases pertaining to an appeal against the termination of an employment agreement).
The Constitutional Tribunal stated that the choice of a method for determining the minimum rate for legal representation (whether chosen by a party or appointed by a court) falls within the remit of the legislator, who – within the limits of the constitutional order – enjoys considerable regulatory discretion.
The adoption of a fixed rate or a rate that is proportionate to the value of the subject of a dispute or allegation does not, in itself, determine the result of the test of constitutionality, as the decisive factor is not the set rate of remuneration (which translates into an amount of payment ordered to reimburse the costs of proceedings), but the impact of the entire “regulation of fees” on the rights and freedoms guaranteed by the Constitution.
Therefore, the Tribunal held that the legislator may devise a mechanism for calculating the minimum rate for legal representation (NB also the maximum rate) in various ways, by focusing on certain functions of the costs of proceedings in a given category of cases, by appropriately weighing up the public and private interest, as well as by implementing significant – from the point of view of the legislator’s policy – rights or values.
The Constitutional Tribunal also pointed out that in cases concerning employees – due to the principle that employees have a somewhat privileged status, which arises from the assumption about their significantly weaker economic position in relation to their employers – minimum rates (which also affect maximum rates), in situations where employees lose at trials, are aimed at protecting the property interests of employees and preventing situations where they will give up on pursuing their claims, fearing high (or even exorbitant) costs of the legal representation of their opponent, which they would have to reimburse if they lost at trial.
The hearing was presided over by Judge Piotr Pszczółkowski, and the Judge Rapporteur was Judge Lech Morawski.