523 views

Compulsoriness of the representation by a lawyer in the appeal. Exception of unconstitutionality accepted

In the Official Gazette of Romania, Part I, no. 775 of 24th October 2014, the Decision of the Constitutional Court no. 462/2014 on the admission of the exception of unconstitutionality of the provisions of article 13 paragraph (2) the second thesis, article 83 paragraph (3) and article 486 paragraph (3) of the Criminal Procedure Code, has been published.

The unconstitutionality exception was drafted in a file to be handled by the Court of Appeal Timisoara – Administrative and fiscal contentious section and aims the provisions of art. 13 paragraph (2) the second thesis, article 83 paragraph (3) as well as the article 486 paragraph (3) referring to the mentions deriving from the compulsoriness of drafting and supporting the appeal request through a lawyer, provisions that have the following content:
– Article 13 paragraph (2) the second thesis:
“In the appeal, the requests and the conclusions of the parties cannot be drafted and supported only through a lawyer or, as the case may be, legal adviser, excepting the situation in which the party or its agent, husband or relative up to the second degree inclusively, is legally licensed.”;
– Article 83 paragraph (3):
“Upon the drafting of the request and reasons in the appeal, as well as in exercising and supporting the appeal, the natural persons will be assisted and, as the case may be, represented, under invalidity sanction, only by a lawyer, under the conditions of law, excepting the cases provided at article 13 paragraph (2).”;
– Article 486 paragraph (3):
“The mentions provided at paragraph (1) lett. a) and c)-e), as well as the requirements mentioned at paragraph (2) are provided under the invalidity sanction. The provisions of article 82 paragraph (1), article 83 paragraph (3) and of the article 87 paragraph (2) remain applicable”.

Examining the unconstitutionality exception, the Court ascertains that the criticized legal texts regulate the compulsoriness of the representation and assistance of the parties by a lawyer at the appeal stage, respectively the compulsoriness of drafting the requests of appeal, as well as exercising and supporting the appeal only through lawyer.  In applying these regulations, the legislator has provided that the appeal and the appeal reasons are submitted in compliance with the obligation referring to representation, the anticipation is drafted and signed by the lawyer of the defendant, and the reply to the anticipation of the appellant’s lawyer.

Regarding the infringement of article 21 of the Constitution, on the free access to justice, the Court submits that this constitutional right represents the basis of article 129 of the Constitution, according to which “Against the legal decisions the parties concerned and the Public Ministry can exercise the remedies, under the conditions of law”.

The Court also submits that the access to justice is not an absolute right, as it can be limited through certain conditions of form and substance imposed by the legislator, still which cannot affect the fundamental right in its very substance. Therefore, the limitations brought to the fundamental right allowed only as far as they aim a legitimate purpose and there is a proportionality relation between the means used by the legislator and the purpose sought by him.

The Court will analyse whether the limitations brought to the right to attack through appeal the legal decisions, from the perspective of the free access to justice, have a legitimate purpose and are proportional with that purpose.

The Court ascertains that the purpose pursued by the legislator is a legitimate one, by establishing the obligation of the natural persons to be assisted and, as the case may be, represented by the lawyer when drafting the request and the reasons of appeal, as well as when exercising and supporting it, the legislator pursuing to impose a rigour and a procedural discipline in order to avoid the introduction of certain appeal requests in an abusive, vexatious manner, which are in compliance with the appeal reasons.

Regarding the existence of the reasonable balance between the measure which determined the limitation of the right to free access to justice and the legitimate pursued purpose, the Court ascertains that there is no reasonable proportionality relation between the requirements of general interest regarding the good justice administration and the protection of the fundamental rights of the person, the criticized legal provisions establishing an imbalance between these two concurrent interests.

Thus, the Court submits that through the restraints imposed to the realization of the mentioned general interest, the individual interest is irremediably affected, respectively the interest of the person who desires to apply to justice in order to obtain its subjective rights and interests. The conditioning of exercising the remedy of conclusion, in a compulsory manner, of a contract of legal assistance, as condition to be admitted for the appeal, imposes to the person both the excessive conditions for exercising the remedy of the appeal and the additional and significant costs in relation to the expenses incurred by the citizen for paying the justice service.

The Court submits that such a condition is excessive, going beyond the constitutional frame on exercising the remedies.

The Court submits that the state failed to implement a coherent and efficient mechanism which ensures the actual possibility of the citizens to apply for the remedy of the appeal. In this context, the Court states that, in order to attain the increasing quality standard of the justice act imposed by the legislator, correlative remedies must be established for the obligations imposed by the legislators in order not to darken their procedural and financial situation.

In conclusion, the Court ascertains that the measure of representation and assistance through a lawyer in the procedural stage of an appeal is not proportional with the purpose pursued by the legislator, the public advantage being insignificant in relation to the degree of affecting the fundamental rights of the person, respectively the ones consecrated at article 21 and article 24 of the Constitution.

The Court also ascertains that the legal provisions criticized have affected also to right for defense, from the point of view of the defendant, as a consequence to exercising the right for free access to justice realized by the recurrent. Moreover, the criticised legal provisions infringe the article 24 of the Constitution and from the recurrent’s perspective, as this constitutional provision does not aim only the defence in the process performed in the first court, but also the right of defence by exercising the legal remedies against certain de facto and ipso jure ascertainments of certain solutions adopted by a court which are considered erroneous by one or other of the parties to the process. If the concerned party is not allowed to exercise the remedy, it cannot valorise or defend the rights against the court.

Moreover, the Court submits that the obligation of the representation and assistance through lawyer for exercising the appeal equals, on one hand, with the transformation of the content of this fundamental right in a condition of admissibility of exercising a remedy, and on the other hand, with the conversion of this right into an obligation, which affects the substance of the right for defence, as it is stated in the Constitution.

Taking into account what is mentioned above, the Court submits that the criticized legal solution creates the premises for transforming the free access to justice and the right to defence in illusory rights, fact that is not able to lead to the on-going, natural consolidation of the state, thus leading to its unconstitutionality.

Mainly, for the considerations presented above, the Court states the unconstitutionality exception and ascertains that the provisions of the Criminal procedure code included in article 13 paragraph (2) the second thesis, article 83 paragraph (3), as well as in article 486 paragraph (3) with reference to the mentions which derive from the compulsoriness of  the drafting and support of the appeal request through lawyer are non-constitutional.

:: The source: JURIDICE.ro

Denis BORTIS

Related posts