As a result of the decision of the Constitutional Court, it will be possible to challenge the decision on the costs of drawing up an ex officio opinion on the absence of grounds for bringing a cassation action.
On 22 October The Constitutional Court ruled that reference no. SK 14/13 concerning a complaint as to the remuneration of an attorney of his own motion for legal assistance.
Attorney Monika T. was appointed as an attorney of his own motion to file a cassation complaint. After examining the case, she notified the dean of the District Bar Council and the appeal court of the absence of grounds for filing a cassation complaint and refusing to draw it up, at the same time raising replacement costs.
After the appeal court had granted the remuneration, the lawyer considered that the amount was too low and therefore made a complaint to another appeal court. However, he rejected the complaint, so the lawyer referred the complaint to the Constitutional Court, questioning the constitutionality Article 3942(1) Code of Civil Procedure.
In the applicant’s view, there is no provision in force to enable an attorney acting of his own motion to challenge the amount of remuneration granted to him for the legal aid provided where it is abnormally low, which means that the attorney is denied the right to pursue the rights guaranteed by the law. Representatives of the Sejm, the Attorney General and the Ombudsman also expressed a similar opinion.
The Constitutional Court accepted the applicant’s position and ruled that Article 3942(1) The Code of Civil Procedure is inconsistent with the Constitution by clarifying that the decision on the costs of legal aid of an ex officio concerns the essential rights of a proxy, which require adequate judicial protection. As the Judge-Rapporteur concluded, "there are therefore no constitutional principles or values in favour of maintaining the existing solution."
The Court held in its position that since it is the duty of a lawyer to pursue a case of his own motion, he must be able to challenge the decision on the costs granted to him.
As a result of the judgment, the legislator should take appropriate legislative action to challenge the decision on the costs of drawing up an ex officio opinion on the absence of grounds for bringing an appeal.
There is now a draft amendment of regulations in the Sejm. It allows the attorney appointed to handle the case of his own motion to file a complaint with another court of the second instance.