Rules of Court – Expert evidence – legal limit on the maximum amount payable for each expert service
Access to the law;
Access to the courts;
Right to be paid for work;
Principle of the prohibition of excess;
Compensation for sacrifice.
RULING No. 16/15
14 of January of 2015
The Constitutional Court found that a norm contained in the Regulations governing Procedural Costs (RCP) under which experts could not earn more than 10 Units of Account1 (UC) per reasoned opinion, even if the type, amount and complexity of the work involved and market practices suggested that the amount should be higher, was unconstitutional. The Court considered the norm to be in violation of the principle of the prohibition of excess included in the principle of a democratic state based on the rule of law. The latter principle is itself derived from a general principle that there are limitations on the actions of public authorities, which is in turn contained within the concept that the state must be based on the rule of law, and is an expression of the idea that the guarantee of citizens’ freedom, equality and security is based on public power being subject to legal rules. A state informed by the idea of the law and rights cannot be overbearing, arbitrary or unfair without denying its very essence. The need to control the costs that litigating parties have to pay, so that the right of access to justice is not excessively restricted, is a constitutionally valid concern, but the constitutional mandate which empowers the ordinary legislator to implement measures that promote and guarantee citizens’ access to justice does not give it the legitimacy to do so at the cost of imposing an excessive ‘sacrifice’ on the agents who work with the justice system. The Court took the view that the right of experts to be paid is a concrete legal implementation of the general right to be compensated for one’s efforts or sacrifices. There is no constitutional requirement which says that the remuneratory value of expert opinions must be unlimited. However, the imposition of a maximum, unbreakable ceiling is so absolute an imposition of the amount of the pay due in return for expert work that it could, in abstract terms, lead to situations in which the sacrifice required of the expert is not properly compensated. The maximum amount stipulated in the norm was not large enough to adequately satisfy the expert’s right to fair compensation for the sacrifice required of him/her. The absence of a general clause that would have allowed the courts to take account of exceptional circumstances when determining the price of an expert opinion meant that judges were unable to consider concrete cases in which that fair compensation would be above the figure set in the norm. To put it another way, by imposing a maximum limit, the norm disproportionately limited the right to fair compensation.
In this concrete review case the Public Prosecutors’ Office brought a mandatory appeal against the refusal by the court a quo to apply a norm on the grounds that it was unconstitutional.
The question before the Court was whether a norm contained in the Regulations governing Procedural Costs (RCP) that placed a maximum, unbreakable ceiling on the remuneration payable to experts was constitutional.
The work experts do for the courts entails understanding or gauging facts and is based on special knowledge which the judges do not possess. Portuguese infra-constitutional law says that performance of the role of expert presupposes a duty to collaborate with the court and is compulsory, and experts can be removed from their functions or fined if they fail to fulfil their duties.
Setting aside the cases in which people exercising particular functions are legally dispensed from the obligation to serve as court experts, the only valid grounds on which someone can ask to be excused from serving as an expert are certain types of personal reasons.
The obligation to serve as a court-appointed expert is one aspect of the legal duty to collaborate in the administration of justice that pertains to every citizen.
Not every expert is required to make the same degree of sacrifice. The concrete case before the Court did not involve experts serving in an official establishment, laboratory or department, or persons on official lists of people who can be called to serve as experts. The Court said that it was therefore possible to talk about the imposition of a true legal requirement to collaborate with the court, and the legal regime that bound the expert concerned imposed a personal cost on him that demanded proper compensation.
In previous cases the Constitutional Court had already been recognising a general right to reparation or compensation for damages caused by actions and/or omissions, founded on the key structural principle that the state must be democratic and based on the rule of law. This general right constitutes sufficient normative basis for the ordinary legislator to be required to ensure that it is put into practice. The legislator is under a duty to legislate in such a way as to ensure “compensation for sacrifices” that are legitimately imposed in the public interest, although it does enjoy a broad scope in the way in which it concretely shapes the implementation of that guarantee, and the possibility of differentiated legal solutions cannot thus be excluded. However, the legislator’s solutions cannot contradict the fundamental teleological content of ‘compensation’ – i.e. the obligation to satisfy the demands imposed by the concept of distributive justice. In particular, the compensation must be proportional to the sacrifice.
When there is a conflict between the public interest – which must prevail – and a private interest, and assuming that it is legitimate to impose the sacrifice in question (failing which the agent would be liable for an unlawful fact), the legally acceptable solution within the framework of a state based on the rule of law is to compensate the possessor of the sacrificed interest, thereby restoring him/her/it to parity with the other possessors of similar private interests.
The court a quo followed a different line of reasoning from that adopted by the Constitutional Court. It considered that the expert’s compulsory collaboration with the courts was a compression of the freedom of labour which was constitutionally legitimate, but only if the compression was both appropriate and proportionately remunerated.
The Constitutional Court rejected this argument, because expert work done as part of legal proceedings does not give rise to or configure a subordinate labour relationship. An expert is an evidentiary agent who performs a public service. Experts continue to pursue their professional occupations, but when they are called on to provide their services in court, their remuneration (and only that, because even as experts they freely exercise their professional charge without interference from anyone else) is set out in specific legislation.
Under the terms of its Organic Law the Constitutional Court can find a norm whose application has been refused on the grounds of its unconstitutionality to indeed be unconstitutional, but on the grounds that it is in breach of constitutional norms or principles other than those relied on by the court a quo.
The Court found that the issue in the present case was the right to be compensated for one’s ‘sacrifice’. If the expert’s right to fair compensation for services provided and the right of access to the courts are to be kept in balance with one another, it is necessary for there be a degree of restraint when the standards for the amount of experts’ fees are set. It is understandable for the decision to fix the prices of services to the courts not to be subject to market rules, because this is the only way to ensure that the effect those prices have on the final amount of court costs is compatible with the guarantee of access to justice. However, the Constitutional Court found that the maximum limit imposed by the norm before it excessively limited the right to fair compensation and was therefore unconstitutional.
Rulings nos. 352/91 (14-07-1991); 467/91 (18-12-1991); 1182/96 (20-11-1996); 380/06 (27-06-2006); 421/07 (16-10-2007); 444/08 (23-09-2008); 301/09 (22-06-2009); 525/11 (9-11-2011); and 656/14 (14-10-2014).
1 The value of a Unit of Account is set at a quarter of the Social Support Index value (IAS) in force in December of the previous year, rounded to the nearest Euro. It is updated annually using the same rate as that used to update the IAS, and currently stands at €102.