Fundamental procedural rights – guarantee of access to justice
Regime governing access to the law and the courts;
Compensation for moral damage;
Increase in assets during the course of proceedings.
RULING No. 582/14
17 of September of 2014
The Court found no unconstitutionality in a norm contained in the Law that regulates the regime governing access to the law and the courts and legal aid, when interpreted such that the receipt of compensation for moral damages should be taken into account when deciding whether to cancel the legal aid granted in the proceedings which led to the compensation itself.
The appellant in this case had been granted legal aid in the form of dispensation from the requirement to pay court costs in a civil lawsuit that he would otherwise have been unable to bring because he lacked the necessary economic resources. The suit was successful and that court ordered the other party to pay him compensation, whereupon the Social Security Institute cancelled the legal aid with retroactive effect.
The Constitutional Court found that the Constitution does not preclude the legislator from requiring the reassessment of the material situation of a beneficiary of legal aid who has received compensation following the effective exercise of a right made possible by that aid, and for that reassessment to lead (or not) to the cancellation of the legal aid in question. The assets of anyone who litigates without the benefit of legal aid and receives the same compensation (which is moreover fungible, because it is paid in cash) are reduced by the amount of the court (and other) costs of the proceedings. The other holders of a right to compensation – i.e. those whose economic situation is not insufficient enough under the applicable legal criteria to justify the grant of legal aid – are thus obliged to pay their share of the court costs, and their assets are consequently reduced by that amount. The positive discrimination which the law affords to persons who do not have enough economic resources to bear the costs of legal action, and which is required by the constitutional principle of effective jurisdictional protection, is designed to ensure that everyone can resort to the courts in order to defend their rights. However, this principle does not mean the discrimination should extend beyond the final decision in which the court definitively rules on the assisted litigant’s right (a decision which also depends on the particular nature of the right in question). The legislator’s freedom to shape legislation is broad enough to allow it to decide whether or not to allow the receipt of compensation for damages in proceedings in which the recipient benefited from legal aid to be seen as an “increase in assets” of a type that can alter the beneficiary’s economic situation and thus his/her right to legal aid.
This concrete review case involved an appeal against the denial by a lower court of an appeal against a decision by the Social Security Institute (ISS) to cancel legal aid that had previously been awarded to the appellant.
At issue was the constitutionality of the part of a norm included in a Law on the regime governing access to the law and the courts, on the basis of which the court a quo upheld the cancellation of the legal aid because the beneficiary had received compensation for moral damages in a lawsuit in which he had been granted legal protection in the shape of that aid. The norm says that such protection must be cancelled if the person who asked for it or his/her household acquire enough resources in order to be able to dispense with it.
The appellant argued that this normative interpretation was in violation of that part of the constitutional principle that access to the law and the courts must be guaranteed under which this right includes being assured legal counsel and the other means needed to go to court in cases in which the litigant’s own economic resources are insufficient to do so.
The question before the Constitutional Court was thus the constitutionality or otherwise of this norm, when interpreted to mean that receipt of compensation for moral damages in a suit in which legal aid had been granted should be possible grounds for cancelling that aid.
The Court noted that it had already addressed aspects of the implementation of the constitutional principle of effective jurisdictional protection in a large number of earlier cases, and that its interpretation of the particular dimension of the principle whereby a lack of economic resources must not prevent access to justice and the law had always been the same. The Constitution does not mean that the ordinary legislator is bound to construct a justice system to which every citizen has access free of charge. The constitutional principle under which no one may be deprived of access to justice by a lack of economic resources is operationalised by means of the ‘institute’ known as legal aid, with the imposition of a duty on the legislator to implement a system that prevents litigants who do not have enough money to pay for their suit from being unable to defend their rights in court because of that fact, or from being placed at a disadvantage in relation to a counterparty who does possess that economic capacity.
The ordinary legislator enjoys broad leeway to shape and model this ‘institute’, on condition that the regime which defines it represents a concrete operationalisation of the constitutional concept of possession of “insufficient economic resources”, such that it is capable of ensuring that people receive sufficient protection. It is reasonable for the state of “insufficient economic resources” to be evaluated and certified during the preparatory or initial phase of the legal proceedings in question using criteria and procedures which the legislator defines in the light of the material situation of the person who benefits from legal aid; and it is reasonable for this initial evaluation to be revised and for any legal aid to perhaps be cancelled if, during those proceedings and as a result of supervening facts, the beneficiary’s assets increase to the point where the benefit that was initially granted can now be dispensed with. This is the solution that results from a literal reading of the norm before the Court.
The dimension the norm acquired in this concrete case when the court a quo interpreted it in the way it did is a specific one. The appellant litigated with the benefit of legal aid in the format ‘exemption from payment of court costs and other procedural expenses’. The award of this benefit resulted from an evaluation of his assets by the competent services, and the appellant in the present case brought that lawsuit with a view to obtaining compensation in court for moral damages that an action by a third party had caused him – compensation to which the court judged he was entitled. The court a quo interpreted the legal precept in question here and decided that this compensation was itself a form of “acquisition” of “enough resources in order to be able to dispense with the legal protection” in the shape of legal aid. Following this interpretation, the competent services cancelled the legal aid benefit the appellant had initially been granted.
The law had not permitted such an interpretation in the past, but the current text of the norm means it is now possible for compensation awarded by a court for damages to be considered an “increase in assets” that can be taken into account in order to cancel legal aid.
The Constitutional Court said that it was necessary to determine whether the Constitution requires that the compensation in such a case be excluded from this evaluation – an exclusion that would preclude the interpretation made by the court a quo. In response to its own question, the Court found that the constitutional principle does not include this prohibition.
What the Constitution does forbid is that anyone be denied the ability to secure a just decision in a fair process because they do not have sufficient economic resources. The Constitution affords its protection to the right to obtain a decision that is just and fair in the search for the protection of any legal position. The fact that the present case involved the possession of the right to the reparation of moral damages caused by the damaging action of a third party does not make the situation singular enough that it would require an interpretation other than that the Constitution simply prohibits any denial of access to justice due to a lack of economic resources. The Constitutional Court had already held in the past that the principle of nemine laederem (‘hurt no one’; a general duty of care) which underlies the ‘institute’ of civil liability is an unwritten constitutional principle. Here, the Court took the view that the principle of the state based on the rule of law inherently includes a fundamental legal principle under which any and every author of an unlawful act that causes damage to third parties thereby becomes obliged to make up for the losses he/she/it has generated. However, this dimension of the constitutional principle did not justify changing the Court’s constant interpretation of the constitutional guarantee contained within the principle of access to the law and effective jurisdictional protection.
The original rapporteur disagreed with the majority decision, was replaced in that role, and attached a dissenting opinion to the Ruling.
He took the view that the normative interpretation before the Court was based on the assumption that, because it constitutes income, receipt of compensation for moral damages causes a positive change in the economic situation of the beneficiary of legal aid. However, court-imposed compensation for moral damages does not constitute income for tax purposes under the Personal Income Tax Code (CIRS), for example. The dissenting Justice agreed that both supervening improvements and supervening deteriorations in the agent’s economic situation ought to have repercussions for legal aid in existing legal proceedings; but said that if one sees the right to the reparation of damage suffered as an extra-constitutional fundamental right – a category that is admitted under the principle of the open clause, or of the non-typicity of fundamental rights, which is itself expressly enshrined in the Portuguese Constitution – when the ordinary legislator constructed the ‘institute’ of legal aid in the way it did and with which the dissenting Justice disagreed, it prevented full enjoyment of the (fundamental) right to the reparation of damages, thereby frustrating equality of opportunity in access to justice.
Rulings nos. 433/87 (04-11-1987); 467/91 (18-12-1991); 495/96 (20-03-1996); 245/97 (18-03-1997); 363/07 (20-06-2007); 127/08 (20-02-2008); 53/09 (28-01-2009); and 25/2010 (13-01-2010).