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;
Principle of proportionality;
General right to reparation or compensation for damages derived from the Republic’s lawful actions or omissions;
Compensation for sacrifice.
RULING No. 33/17
1 of February of 2017
A norm included in the Regulations governing Procedural Costs (RCP) imposed an unbreakable limit of 10 Units of Account1 (UC) on the amount that experts could earn in return for their participation in legal proceedings or for their collaboration in any process linked to such proceedings. Even the courts themselves were precluded from establishing higher amounts for the remuneration of experts. The Constitutional Court said that this restriction was capable of leading to situations in which an expert’s “sacrifice” – i.e. the cost to him/her of fulfilling his/her legal duty – was not properly compensated.
The Court began by rejecting the argument that the norm was unconstitutional because it violated the rights to the effective submission of evidence, to a fair trial, and for one’s work to be remunerated in accordance with its amount, nature and quality.
It also said that while the right to evidence could possibly be restricted by placing this legal limit on expert pay, the normative solution in question could not be said to inevitably and necessarily lead to that outcome, in that experts were supposed to do the work required of them, even if they weren’t adequately paid for it.
Nor was the norm capable of violating either: the right to just and fair process, because the issue was the possible material injustice that experts (as opposed to accused persons) might suffer if an absolute ceiling were placed on the remuneration of the services they provided while assisting the courts; or the right to be paid for one’s work in accordance with its amount, nature and quality, because the scope of the protection afforded by this right is limited to ‘workers’, especially those in a subordinate labour relationship, which is not the case of court experts.
Performance of the function of expert represents a duty to collaborate with the courts, and falls within a citizen’s overall legal duty to collaborate in the administration of justice. When an expert is required to bear a cost in this way, he/she must be duly compensated, so the expert’s right to remuneration constitutes a legal implementation of the general right to compensation for one’s sacrifices.
The general right to reparation or compensation for the damages/injuries derived from lawful actions or omissions by the Republic is rooted in the principle of a democratic state based on the rule of law, and has gradually been recognised by the Constitutional Court.
The Court had already found that the constitutional grounds for a liability for lawful acts can be said to be derived from both a principle that there must be equality between citizens when it comes to paying for public costs, and the principle of the rule of law.
When the public interest is made to prevail over a private interest, because this is necessary in order for the former to be viable, and the imposition of such a sacrifice on the private party is indeed legitimate, the legally acceptable solution in a state based on the rule of law is to compensate the party whose interest is sacrificed.
The Court took the view that the legislative solution before it was justified by a public interest – the fact that the costs payable by litigating parties must be controlled if the right of access to justice is not to be denied. However, while the legislator possesses a constitutional mandate to implement measures that promote and guarantee access to justice by all, it does not possess the legitimacy to ensure that access at the cost of imposing an excessive sacrifice on agents who collaborate in the administration of justice. The legislator must be recognised to enjoy some margin for manoeuvre when it shapes the compensation owed to experts who collaborate with the justice system, but that margin is subject to constitutional limits, among them the principle of proportionality.
The Constitution does not preclude the existence of an upper limit on an expert’s remuneration; the need for a harmonious balance between an expert’s right to fair compensation for his/her services and the right of access to the courts does imply some restraint when standard fees are established.
Having said this, legally setting an unbreakable maximum limit could lead to situations in which the sacrifice imposed on an expert – particularly with regard to his/her right to material payment for his/her work – was not properly compensated. The courts must be able to take exceptional circumstances into account when they set the fee payable for concrete expert services, but the norm before the Court did not contain any clause that would have offered a satisfactory solution when the sacrifice imposed on an expert exceeded the 10-UC limit.
As such, the Constitutional Court found that the norm violated the principle of proportionality and declared it unconstitutional with generally binding force.
The Organic Law governing the Constitutional Court (LOTC) empowers both any of the Court’s Justices and the Public Prosecutors’ Office (MP) to initiate an abstract ex post facto review of the constitutionality of any norm that has been found unconstitutional in three concrete cases.
The MP used that power to ask the Court to declare the unconstitutionality of a norm in the Regulations governing Procedural Costs (RCP) whereby court experts could not charge more than 10 Units of Account (UCs) for any single intervention.
This normative solution, which was derived from the text of the RCP and its Table IV, was designed to ensure and regulate the remuneration of persons who collaborate with the courts on a one-off basis by assisting them in the performance of technical steps in the proceedings. Paying these persons – experts, and other types of agent with special qualifications or know-how, such as translators, interpreters and technical consultants – is one of the three categories of expense included in the overall procedural costs to which court proceedings are subject (the other categories are court fees, and each party’s individual legal costs).
The various procedural costs represent the expense normally generated by court proceedings – i.e. here, as part of the process of producing evidence constituted by facts that are relevant to the legal resolution of a dispute. These particular costs and the court fee are two different things. Inasmuch as paying people for one-off services that happen to be necessary for the proceedings is one of the costs involved in the latter, their amount must be taken into account when calculating how much the party that is subsequently ordered to pay costs must actually pay. In other words, the amount of an expert’s remuneration has consequences for the amount of procedural costs payable.
The question of constitutionality here was linked to the possibility that the limitation imposed by the norm could lead to situations in which the sacrifice required of an expert was not duly compensated, and thus represented a situation that was in breach of constitutional norms.
The legislator sought to make the different values and interests that are at stake when experts’ fees are determined compatible with one another. It decided that judges should be able to order payment of an amount above or below that actually requested by experts in return for their services, and that that amount should depend on the complexity of the expert’s work, but could never exceed 10 UCs.
In most cases that interval was elastic enough to ensure the remuneration took account of the type of service, market practices, the actual service and any travel, and the number of pages or percentage of an expert report or the number of words in a text. However, setting an unbreakable limit prevented payment of any amount over 10 UCs that resulted from a calculation based on exactly the same criteria.
As such, the Court considered the norm to be in breach of the constitutional requirement for proportionality and declared it unconstitutional.
The Ruling was unanimous, but one Justice attached a concurring opinion to his vote, because he considered that the decision should be founded on different grounds.
Rulings nos. 656/14 (14-10-2014); 16/15 (14-01-2015, included in the selection sent to the Venice Commission with regard to January-April 2015); 250/16 (04-05-2016); and 375/16 (08-06-2016).
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 (unless the latter updating is suspended, as is the case in 2017), and currently stands at €102.