Option not to immediately apply a new costs regime to pending cases
Payment of judicial costs
RULING No. 150/11
23 of March of 2011
A transitional-law norm, which is contained in a legislative act that amended the Code of Judicial Costs (CCJ) and which requires that the cost regime set out in that legislation not be applied immediately, is not unconstitutional. The principle of equality does not operate diachronically, and so the legislator is not precluded from ordering legislative amendments – which cause an alteration in the amounts that private persons pay in judicial fees – in this domain. The temporal succession of legal regimes of this type, in a manner similar to that which generically occurs whenever there are changes in the counter-values paid for public services that are not free of charge, leads to differences in the way in which the Public Administration relates to citizens; but, on condition that they are not arbitrary, those differences are not significant in a sense that would constitute a breach of the principle of equality, and do not injure the principle of proportionality and the prohibition of excess, or the principles of justice, impartiality, and good faith.
The appellant argued the unconstitutionality of a transitional-law norm that precludes the application of a new law which put an end to certain duties to the state for which citizens had previously been responsible – duties that were provided for in the law that has now been revoked. The norm thus prolongs the applicability of the revoked law and of the duties that it imposed, thereby extending them to new facts of the type that generate the duties in question. In the appellant’s view, this means that the revoked law continues in force beyond the date on which its revocation takes effect.
Under the new regime governing judicial costs – which was not applied in the case in question – the rest (the part that had thus far not been charged for or paid) of the court fee is not included in the final invoice for the proceedings, if the latter end before the trial and judgement phase reaches its conclusion. Under the transitional-law norm that established the new regime, the latter only applies to cases that have been brought since it came into force. The appellant considered that this constitutes an arbitrary, unequal treatment of the same set of facts that constitute, alter and put an end to the legal relationship under which court fees are due – a treatment that depends on the date on which a given action is first brought.
The Constitutional Court considered that although it is the appellant who must delimit the scope of an appeal, and that in her submission in the present case the appellant only addressed the transitional-law norm, this case did entail a situation of a type in which the content of the provisions of a given precept necessarily lead to the application of other norms. From a certain point of view, there is a relationship of normative dependence between the transitional-law norm and the norm which the court applied on the basis of the transitional provisions, and it is possible to say that when the norm in the transitional regime requires the application of the law that has been revoked, it ends up transporting the legal regime contained in the latter law into itself.
The Constitutional Court recalled its previous jurisprudence on this matter – specifically with regard to the moment in time as of which the norms concerning judicial costs are applied. In all that jurisprudence the Court has classified judicial costs as fees, clarified the meaning of the normative-constitutive discretion which the legislator is recognised to possess in this matter, and assessed the constitutionality of the legal regime in question with regard to constitutional parameters like access to the law and the courts, and the relationship between that access and the principle of proportionality.
The Court held that, strictly speaking, the transitional-law norm does not entail any constraint on any of the constitutional parameters that might be at stake.
Alongside the limits on the legislator’s freedom to shape legislation, one of the factors which have an impact in this domain and which the Court was required to consider is whether the appellant had a legitimate expectation that she would be able to benefit from the new cost regime, at the moment in time when she took the decision to litigate.
In order for the appellant to invoke the protection which the Constitution affords to the principle of legal security, in terms of the material aspect of trust, it would be necessary for the state to have caused sudden, unpredictable changes in the legal model that governs the concrete situation. There is no right to the non-frustration of legal expectations, or to the maintenance of a given legal regime throughout long-lasting legal relations, or with regard to complex facts that have already partially come about. The laws that apply to pending lawsuits come under the category of the norms that apply to pre-existing legal situations. They must be seen as falling within the category of mere retrospectiveness or inauthentic retroactivity, and not that of authentic retroactivity. The Constitution only forbids restrictive laws that produce authentically retroactive effects – i.e. laws that restrict rights which affect constitutional-law positions that have already been established in the past or have even already come to an end. In short, the challenged norm is not contrary to the Constitution.
The President of the Court dissented from the Ruling. The object of his discordance was the delimitation of the object of the appeal. He was of the opinion that inasmuch as the norm before the Court was a transitional one, the Court should also have extended its analysis to the rules on charging for costs which, despite being revoked, continued to be applicable to the case as a result of the decision of the court a quo. In its Ruling, the majority expressly said that the content of the provisions contained in the transitional-law norm leads to the application of other norms – in this case, those revoked by the new regime. However, when it restricted the object of the appeal to the constitutionality of the transitional norm in its own right, the majority did not draw the necessary consequences from the fact that the norm causes the application of the old regime, whose constitutionality the majority did not consider. The dissenting Justice was also of the view that if the object of the appeal had been delimited in the way in which he felt it should have been, the Court ought to have concluded that the norm applied by the court a quo was in breach of the principles of proportionality and the prohibition of excess, inasmuch as the norm required that the amount of the costs be defined in accordance with the value of the suit, without imposing any maximum on that amount and without allowing the court to limit them. In the view of the Court’s President, the latter was particularly significant, given the nature of the case and the assessment of its degree of complexity, and the thus manifestly disproportionate nature of the amount in question.
Rulings nos. 708/05 (14-12-2005), 470/07 (25-09-2007), 116/08 (20-02-2008), 375/08 (09-07-2008), and 301/09 (22-06-2009).