Constitutional Court, Brno, TZ 10/2023

The plenum of the Constitutional Court (rapporteur judge Vladimír Sládeček) granted the proposal of the Municipal Court in Prague to cancel § 18c paragraph 1 letter 1 in the words “whose income and property circumstances justify it, and” of Act No. 85/1996 Coll., on Advocacy, as amended.

The Municipal Court in Prague submitted a proposal to the Constitutional Court as part of the hearing of lawsuits against the resolution of the Czech Bar Association (ČAK), which stopped the proceedings on the application for the appointment of a law firm to provide legal advice pursuant to Section 18a or legal services pursuant to Section 18c of the Act on Advocacy. The plaintiff requested the ČAK to appoint a lawyer to file a constitutional complaint, because the lawyers she turned to refused to take over her representation. In the application, she stated that she does not meet the conditions for the provision of free legal aid and that she will have to cover the costs of legal representation herself. ČAK assessed the request as clearly inadmissible on the grounds that the plaintiff requested the appointment of a lawyer to provide legal services pursuant to Section 18c of the Advocacy Act, but not free of charge. From 1 July 2018, ČAK was authorized to appoint lawyers in accordance with the aforementioned provision only to provide free legal services, even in situations where applicants cannot find a lawyer who should be willing to take on the case. The Municipal Court in Prague, when hearing the lawsuit in question, came to the conclusion that the provision of the Law on Advocacy in the words “whose income and property circumstances justify it” is contrary to the constitutional order.

The Constitutional Court accepted the proposal and annulled the contested provision. If there is not only a legitimate goal of the legislation consisting in changing the method of appointing lawyers in cases that are not justified by income or property conditions, but also a criminal reference to the fact that such a goal was intended at all, it is not possible to assess the suitability and appropriateness of the challenged legal regulation vv within the first step of the proportionality test.

If the legislator limited the applicant’s right to turn to ČAK with a request to appoint a lawyer to provide legal services only to cases justified by income or property circumstances, he thereby canceled the right of access to court guaranteed in Article 36, paragraph 1 of the Charter and the right to legal aid guaranteed in Article 37, paragraph 2 of the Charter.

Unconstitutionality of unconstitutionality The Constitutional Court did not find contested the provision of free legal aid for certain types of proceedings, but the fact that it simultaneously provides legal aid on a flat rate to applicants who are willing to pay for legal services.

The right of access to court is an essential part of the right to a fair (due) process and thus the right to judicial protection. Its prerequisite is the right to legal aid. The limitation of these fundamental rights only to non-property persons contradicts both the content of these provisions of the Charter and their connection with Article 3, paragraph 1 of the Charter, according to which fundamental rights and freedoms belong to all persons (including) “without distinction” of property.

At the same time, the Constitutional Court postponed the enforceability of the decision until 31 December 2023, in order to create sufficient time for the legislator to adopt a legal regulation that will already be in accordance with the Constitution.

The text of the decision of the plenary session of the Constitutional Court no. stamp Pl. ÚS 44/21 is available here (519 KB, PDF).

Kamil Abbasi
press spokesperson of the Constitutional Court