Subject matter: Calculation of income to be taken into account in the award of legal aid Keywords: Income, relevant criteria |
RULING No. 46/2008
Case no. 1055/07
2nd Section
Rapporteur: Justice Mário Torres
Ruling of the 2nd Section of the Constitutional Court.
1. Report
Under the terms of Article 70(1)a of the Law governing the Organisation, Functioning and Process of the Constitutional Court, as approved by Law no. 28/82 of 15 November 1982 and most recently amended by Law no. 13-A/98 of 26 February 1998 (the LTC), the representative of the Public Prosecutors’ Office at the 3rd Bench of the Oporto Civil Court has appealed against a ruling which the Judge of the latter court issued on 4 July 2007. Basing himself on an unconstitutionality arising from a breach of Article 20(1) of the Constitution of the Portuguese Republic (CRP), the Judge denied application of the “the part of the Annexe to Law no. 34/2004 of 29 July 2004, when taken in conjugation with Articles 6 to 10 of Ministerial Order no. 1085-A/2004 of 31 August 2004, as amended by Ministerial Order no. 288/2005 of 21 March 2005, which lays down that when the relevant income of a person who applies for legal aid is determined, the amount to be considered in the calculation is his household’s income as it is rigidly defined thereby, and that it is not possible to concretely assess the applicant’s real financial situation in terms of his income and expenses”. The Judge consequently upheld the appeal which A. brought against the decision taken by the Oporto District Social Security Centre (CDSSP) on 2 May 2007, in which the latter responded to her request for total dispensation from payment of the court fee and other procedural costs, and for payment of the remuneration for the future intervention of the executive solicitor appointed by the executor in an executive process in which she was the executed party, by only granting her the benefits of a phased payment of the court and other procedural costs, and a phased payment of the remuneration of the executive solicitor.
The relevant part of the decision against which the present appeal has been brought reads as follows:
“As grounds for this appeal, the appellant argued that in the light of her concrete financial situation, the Social Security Service should have made use of the legal provision set out in Article 20(2) of Law no. 34/2004 and thus set aside the criteria defined by the Annexe thereto, in such a way as to grant her the benefit of legal aid.
The faculty to which the appellant refers is available to the Social Security Service during the administrative phase of the proceedings under analysis – a point in time at which Law no. 34/2004 directly provides for the possibility of setting aside the application of the criteria laid down by its Annexe, and of instead expressly appointing a Commission to assess whether the applicant is in fact in a concrete situation of a lack of sufficient financial means.
However, the Law does not provide for this possibility at a point in time when the proceedings are the object of an appeal to a court, when a lack of sufficient financial means alleged by the appellant must be considered in the light of the criteria laid down by, and published in, the Annexe to Law no. 34/2004 (and Ministerial Order no. 1085-A/2004 of 31 August 2004, which subsequently specified those criteria, and was itself then amended by Ministerial Order no. 288/2005 of 21 March 2005), which criteria the appellant is seeking via the present appeal to have set aside.
But the use of these legal criteria, which are based on mathematical formulae, makes it impossible for the court to concretely assess the financial situation of an applicant for the benefit of legal aid.
Article 20(1) of the CRP states that – “Everyone shall be guaranteed access to the law and the courts in order to defend those of his rights and interests that are protected by law, and justice shall not be denied to anyone due to lack of financial means”.
The constitutionally enshrined guarantee of access by everyone to the right to the defence of all of those of their rights and interests that are protected by law is a fundamental right whose nature is analogous to that of the constitutional Rights, Freedoms and Guarantees. This right is made a reality by laws – above all procedural ones. The effective implementation of many Rights, Freedoms and Guarantees is thus dependent on the overall procedural structure that is actually put into place (see Direito Constitucional, Prof. Gomes Canotilho, 4th edition, p. 772).
Inasmuch as access to the courts is the means of defence par excellence of the rights referred to by Article 20 of the Constitution, the courts are the ultimate instance of defence of people’s freedom and dignity (see Prof. José Carlos Vieira de Andrade, in Os Direitos Fundamentais na Constituição Portuguesa de 1976, 3rd edition, pp. 368/369).
The principle of access to the law thus seeks to guarantee not only acknowledgement of the possibility of a defence without shortcomings, but also the effective exercise of this right, which can take the shape – for example, and in the case before us – of the right to litigate with dispensation from court fees and other costs of the proceedings, including payment of the remuneration of the executive solicitor who has been appointed.
Given that there can be no doubt that all normative acts must be in conformity with the Constitution (see Article 3[3] of the CRP), one consequence is that any rule which breaches the precepts laid down by the Constitution is unconstitutional.
For the purposes of controlling the constitutionality of a normative act, “it is the Constitution as a whole – so both those of its rules which govern the responsibility and power to legislate and legislative procedure, and its material principles and the values they incorporate – that is taken as the standard against which the judgement of constitutionality must be made” (see Cardoso da Costa, A Justiça Constitucional no quadro das funções do Estado, p. 51, quoted by Fernando Amâncio Ferreira, in Manual dos Recursos em Processo Civil, 4th edition, p. 389).
An unconstitutionality is material when it involves infringing on the material principles incorporated in the Constitution (material defects are defects in legal provisions), organic when it fails to comply with the rules governing competence laid down by the Constitution, and formal when it breaks rules of form or procedure defined by the Constitution (see Cardoso da Costa, op. cit., p. 390).
Having made these observations, and bearing in mind the effective guarantee of access to the courts which Article 20 of the CRP says that everyone must enjoy, we must now analyse the material constitutionality of the Annexe to Law no. 34/2004, when taken in conjugation with Articles 6 to 10 of Ministerial Order no. 1085-A/2004, as amended by Ministerial Order no. 288/2005 of 21 March 2005.
According to Article 1 of Law no. 34/2004 of 29 July 2004, the system governing access to the law and the courts is intended to ensure that no one finds it more difficult to exercise or defend, or is prevented from exercising or defending, his rights because of his social or cultural situation, or by insufficient financial means. Access to the law includes access to legal information and legal protection, the latter taking the shape of legal advice and legal aid (see Articles 2[2] and 6[1] of the same Law).
When it defines who is entitled to legal protection, Article 7(1) of the same Law says that this is the case of “(...) persons who demonstrate that they are in a situation of a lack of sufficient financial means”. Article 8 goes on to clarify that a person is in a situation of a lack of sufficient financial means when, taking into account factors of a financial nature and the person’s ability to make a contribution, he does not enjoy the objective conditions needed to bear the costs of a court case at a given moment in time.
Lack of sufficient financial means must be both proven and assessed in accordance with the criteria set out in the Annexe to the Law in question (Article 8[5] and 20[1]).
The Annexe in turn says that lack of sufficient financial means must be assessed in terms of that income of an applicant’s household which is relevant for the purposes of legal protection, as defined by point 1 of the Annexe itself. Paragraph (3) of that point (1) says that for the purposes of the Law to which it is attached, the persons who live in ‘joint economy’ with the applicant for legal protection are considered to belong to the same household.
The need to specify the criteria for proving and assessing lack of sufficient financial means led to the publication of Ministerial Order no. 1085 A/2004 of 31 August 2004, which was then amended by Ministerial Order no. 288/2005 of 21 March 2005. Amongst other things, this Ministerial Order specified the formula for calculating the amount of the income that is relevant for the purposes of legal protection referred to by the criterion which the Law said should be used to assess an applicant’s lack of sufficient financial means, in accordance with Articles 6 to 10 of the same Ministerial Order.
The basis for this calculation is always the household’s complete net income. This figure is obtained by adding the household’s net inflow of funds (i.e. its income after: income tax, the mandatory contributions which employed members of the household pay under social security schemes, and their employers’ social security contributions) to the amount of any implicit financial revenue calculated on the basis of the household’s assets.
The conjugation of these rules means that the grant of legal protection became dependent on the amount of the income that was relevant for that purpose, which is calculated on the basis of the income of the persons who live in ‘joint economy’ with the applicant for that legal protection, and whether or not the latter actually receives any income himself, or whether in practice he has to bear any other expenses which the rules governing the formula do not take into consideration. This is situation in the case before us, where the application of such mathematical formulae has not only resulted in a charge on the salary of the applicant’s spouse, but has also obliged the applicant and her husband to pay the sum of 90 €/month (45 € for each spouse) in each of three court cases, for a monthly total 270 €.
On top of which, even as regards the expenses which the formula says should be taken into consideration – such as the deduction of the household’s accommodation expenses – the amount of such deductions is also the result of the application of a given coefficient, which is in turn determined by the household’s belonging to one of a number of income bands. This means that in practice, the actual amount which the household spends is not directly taken into account.
If we look at the amount of the net monthly income of the household in the case before us – 772.12 € (= 386.32 € [sheet 16 of the case file] + 385.80 € [sheet 15]) – less the amount they pay each month in rent – 284.00 € (sheet 50) – they are left with 488.12 €, with which the appellant and her husband, who together form their household, must pay for the basic costs of food, healthcare, water and electricity, as well as clothing.
What is more, the decision in relation to this situation and to the two others mentioned in the case file before us, means that the appellant and her husband must subtract another 270.00 € from the monthly budget available to them, which would in turn mean that they would have 218.12 €/month left to pay for the aforementioned costs of basic human subsistence.
We should note that since 1 January 2007, the national minimum wage is 403.00 €/month.
We must thus conclude that in practice, the rigid form of calculation that has been imposed, without offering any concrete possibility of gauging the financial situation of an applicant, who may in practice not benefit from the income of any third party who lives in ‘joint economy’ with the household and contributes to its income, or who (the applicant) may have other obligatory expenses (not directly considered by the mathematical formula) that do not enable him to bear the expenses of the legal proceedings, manifestly does not guarantee access to the law and the courts by a person who does not have enough financial resources to bear the costs of a court case; and that it therefore breaches the constitutionally enshrined right to the defence of all those of their rights and interests that are protected by law, which accrues to everyone (see Article 20[1] of the CRP).
In the light of all the above, on the grounds that it is in breach of the right to access to the law and the courts enshrined by Article 20 of the Constitution of the Portuguese Republic, we hereby decide not to apply the part of the Annexe to Law no. 34/2004 of 29 July 2004, taken in conjugation with Articles 6 to 10 of Ministerial Order no. 1085-A/2004 of 31 August 2004, as amended by Ministerial Order no. 288/2005 of 21 March 2005, which lays down that when the relevant income of a person who applies for legal aid is determined, the amount to be considered in the calculation is his household’s income as it is rigidly defined thereby, and that it is not possible to concretely assess the applicant’s real financial situation.
In the light of the documentary proof offered in the case file, we must consider it to be established fact that: the appellant has a household composed of her husband and herself; she receives unemployment benefit in the monthly sum of 385.80 € (sheet 97); the sum of 21.85 €/month is deducted from her spouse’s salary in the form of a judicial retention, which means that he receives the net amount of 386.32 €/month (sheet 67); the appellant and his wife pay monthly rent of 284.00 € (sheet 50); they have the remainder of their income with which to pay for the basic needs of a household composed of two persons; nor must we forget that the appellant and her husband applied for the benefit of legal aid in three court cases, including the one before us, and that in each case it was decided that given their income, they had to make the phased payment of the court fee in the sum of 45.00 €/month (per person, per case). Given all this, we hold that as regards the matter under consideration herein, the decision that was taken in this case is in breach of the appellant’s right of access to the law and the courts, inasmuch as she is truly in a situation of a real lack of sufficient financial means, which justifies the grant of the benefit of legal aid in the format she applied for.
As such, we must conclude that the challenge made by the appellant should be upheld and that she should be granted the benefit of legal aid in the format she sought – i.e. in the shape of total dispensation from the court fee and other costs of the proceedings; but not from payment of the executive solicitor’s remuneration, because the case file does not include notice of his appointment (because the executive process to which this case file is attached has been pending since March 2003).”
The representative of the Public Prosecutors’ Office at the Constitutional Court submitted a number of arguments, at the end of which he formulated the following conclusions:
“1. – In our legal/constitutional system, access to the law and the courts is not configured in the form of a mere right to a social benefit, but is rather reflected in a fundamental right that is both linked to the effective nature of legal protection and essentially dependent on the criteria which delimit and condition the assessment of the lack of sufficient financial means invoked by the appellant.
2. – The obligatory, table-based, rigid weighing up of a household’s “relevant income”, solely on the basis of the indices and coefficients set out in Articles 6 to 10 of Ministerial Order no. 1085 A/2004, taken in connection with the Annexe to Law no. 34/2004, particularly in order to determine the amounts that are enough to satisfy the household’s “basic needs”, while attaching little importance to the reduction in assets derived from the charge on the appellant’s salary and the phased payment of the costs the various court cases in which he is simultaneously a party, thereby leading to the possibility of an administrative denial of legal aid in the form he applied for, even when a prudent, specific assessment of the circumstances applicable to the case manifestly reveals the existence of a situation of financial need that inhibits access to the law and the courts, constitutes an excessive and disproportionate restriction on that fundamental right.
3. – As such, the Court should confirm the finding of unconstitutionality formulated in the decision against which the present appeal has been brought.”
The appellant did not submit counter-arguments.
In the light of all the above, the Court must now consider and decide.
2. Grounds for Decision
2.1. The set of normative instruments that forms part of the object of the present appeal has already been the object of a number of decisions by this Court, albeit the normative aspect in question here is not entirely the same as it was in those cases.
In Ruling no. 654/2006 (Series II of the Diário da República dated 19 January 2007, p. 1650), the Court held “the part of Annexe Law no. 34/2004 of 29 July 2004, when taken in conjugation with Articles 6 to 10 of Ministerial Order no. 1085 A/2004 of 31 August 2004, which lays down that the relevant income for the grant of the benefit of legal aid shall necessarily be determined on the basis of the income of the household of the applicant for legal protection’s household, whether or not he actually receives that income” unconstitutional on the grounds that it is in breach of the terms of Article 20(1) of the CRP – a judgement that was reiterated in Summary Decisions nos. 206/2007, 530/2007, 603/2007 and 625/2007 (the full texts of these Summary Decisions and the aforementioned Ruling are available for consultation at www.tribunalconstitucional.pt).
This Ruling based its finding of unconstitutionality on the following legal grounds:
“II. Grounds for Decision
1. The decision against which the present appeal has been brought ruled against the application of the part of Annexe Law no. 34/2004 of 29 July 2004, when taken in conjugation with Articles 6 to 10 of Ministerial Order no. 1085 A/2004 of 31 August 2004, which lays down that for the purpose of calculating the relevant income of an applicant for the benefit of legal aid who is of age and a student, and whose living expenses are paid by his grandmother, the latter’s income should be taken into account. According to that decision, the application of the Annexe to Law no. 34/2004 in the case before us, which requires that the assessment of lack of sufficient financial means consider both the relevant income of the household in question and the mathematical formulae laid down by Articles 6 to 10 of Ministerial Order no. 1085 A/2004, leads to a result that is not in conformity with the fundamental right of access to the Law and the courts.
The provisions of Articles 8(5) and 20(1) of Law no. 34/2004 of 29 July 2004 (which changed the rules governing access to the law and the courts and transposed Council Directive no. 2003/8/EC of 27 January 2003, on improving access to justice in cross-border disputes by establishing minimum common rules on legal aid relating to such disputes, into Portuguese Law) mean that the lack of sufficient financial means on the part of an applicant for legal protection must be proved and assessed in accordance with the criteria set out and published in the Annexe to that Law.
To the extent that they are of interest to us here, the Annexe is composed of the following rules:
“I – Assessment of lack of sufficient financial means
1 – Lack of sufficient financial means shall be assessed as follows:
a) Applicants whose household has an income that is relevant for the purposes of legal protection which is equal to or less than one fifth of the national minimum wage do not enjoy the objective conditions needed to bear any amount related to the costs of a court case.
b) Applicants whose household has an income that is relevant for the purposes of legal protection which is greater than one fifth of, and equal to or less than half, the national minimum wage shall be deemed to enjoy the objective conditions needed to bear the costs of legal advice, and shall consequently not benefit from free legal advice, but shall nonetheless benefit from legal aid.
c) Applicants whose household has an income that is relevant for the purposes of legal protection which is greater than half, and equal to or less than twice the national minimum wage, enjoy the objective conditions needed to bear the costs of legal advice, but do not enjoy the objective conditions needed to bear the costs of a court case at a given moment in time, and shall therefore benefit from legal aid in the phased payment format provided for by Article 16(1)d of the present Law.
2 – (…)
3 – For the purposes of this Law, persons who live in ‘joint economy’ with the applicant for legal protection shall be deemed to belong to the same household.” (Our italics.)
Articles 6 to 10 of Ministerial Order no. 1085-A/2004, which specifies the criteria for proving and assessing lack of sufficient financial means, read as follows:
“SECTION II
Consideration of applications
Article 6.
Relevant income for the purposes of legal protection
1 – For the purposes of the provisions of the Annexe to Law no. 34/2004 of 29 July 2004, the income that is relevant for the purposes of legal protection (YAP) shall be the amount which results from the difference between the amount of the household’s complete net income (YC) and the amount of the deduction that is relevant for the purposes of legal protection (A) – i.e. YAP = YC – A.
2 – The income that is relevant for the purposes of legal protection (YAP) shall be expressed in multiples of the national minimum wage.
Article 7.
Complete net household income
1 – The amount of the household’s complete net income (YC) shall be the amount which results from the addition of the household’s net inflow of funds (Y) to the amount of any implicit financial revenue calculated on the basis of the household’s assets (YR) – i.e. YC = Y + YR.
2 – The ‘household’s net inflow of funds’ (Y) shall mean income after: income tax, the mandatory contributions which employed members of the household pay under social security schemes, and their employers’ social security contributions.
3 – The implicit financial revenue shall be calculated in accordance with the provisions of Article 10 of the present Ministerial Order.
Article 8.
Relevant deduction for the purposes of legal protection
1 – The amount of the deduction that is relevant for the purposes of legal protection (A) shall be the amount which results from the addition of the household’s expenditure on its basic needs (D) to the amount of the deduction for expenses incurred in relation to the family home (H) – i.e. A = D + H.
2 – The amount of the household’s expenditure on its basic needs (D) shall be calculated using the following formula:
where n is the number of persons in the household, and d is the coefficient for the deduction in relation to the household’s expenditure on its basic needs, which shall be determined in accordance with the various income bands, as provided for by Annexe I.
3 – The amount of the deduction for expenses incurred in relation to the family home (H) shall be the amount that results from the application of the coefficient h to the amount of the household’s complete net income (YC) – i.e. H = h ×YC, where h shall be determined in accordance with the various income bands, as provided for by Annexe II.
4 – The amount of the deduction for expenses incurred in relation to the family home (H) shall only be calculated if it is greater than the amount of the expenditure which the household actually bears in relation to payment of the rent for the family home or of instalments in relation to its purchase, or in the event that no expenditure on the household’s home has been declared; in the event that the amount which is really spent (B) is lower, this shall be the amount that shall be taken into consideration.
Article 9.
Formula for calculating the amount of the relevant income for the purposes of legal protection
1 – Without prejudice to the provisions of the following paragraph, the formula for calculating the amount of the income that is relevant for the purposes of legal protection specified in the previous Articles and in Annexe III shall be as follows:
2 – If, however, the amount of the expenditure which the household actually bears in relation to payment of the rent for the family home or of instalments in relation to its purchase (B) is less than the amount which results from the application of the coefficient for the deduction of expenses in relation to the household’s home provided for by the previous Article, then the formula for calculating the amount of the income that is relevant for the purposes of legal protection shall be as follows:
Article 10.
Calculation of implicit financial revenue
1 – The amount of the implicit financial revenue referred to by Article 7(1) shall be calculated by applying a reference interest rate to the value of the household’s assets.
2 – The reference interest rate shall be the average value of the six-month EURIBOR rate in the previous month of December or June, depending whether the application for legal protection was submitted in the first or second six months of the current calendar year respectively.
3 – The value of real-estate assets shall be taken to be the highest of the following amounts: that declared by the applicant in the application for legal protection; that recorded on the fiscal property register; and that set out in the document that recorded the acquisition of the property.
4 – When the asset in question is the family home, the calculation referred to by paragraph (1) shall only take into account amounts above a threshold of € 100,000, and to the precise extent that that threshold is exceeded.
5 – The value of stocks, shares and securities shall be the amount that results from the stock exchange listing on the day before the submission of the application for legal protection, or in the absence of any such listing, their face value.
6 – The value of automobiles shall be taken to be their market value.”
The Lisbon Civil Court denied the application of the rule that forms part of the object of the present appeal on the grounds that it is in breach of the terms of Article 20(1) of the Constitution of the Portuguese Republic, which reads as follows:
“Everyone shall be guaranteed access to the law and the courts in order to defend those of his rights and interests that are protected by law, and justice shall not be denied to anyone due to lack of financial means.” (Our italics.)
2. In Ruling no. 98/2004 (Series II of the Diário da República dated 1 April 2004), the Constitutional Court had the following to say about the legal protection format that is at stake in the case before us:
“The legal aid institution is designed to prevent people who want to uphold their rights in the courts from being denied justice due to lack of sufficient financial means, and its creation was thus derived from the imperative order laid down by Article 20(1) of the Constitution.
For that imperative order to be complied with, it is obviously not enough for the said institution to merely exist in our legal system; it is necessary for it to be modelled in a way that is appropriate to the defence of rights and access to Justice by those who lack sufficient financial resources to bear the costs that are inherent in bringing and pursuing a court case – particularly legal costs and fees.”
That which we must decide in the present case is precisely whether the way in which the legal aid institution is modelled by the rule whose application was denied by the Lisbon Civil Court – a rule which is derived from the Annexe that forms part of Law no. 34/2004, when taken in conjugation with Articles 6 to 10 of Ministerial Order no. 1085 A/2004 – guarantees access to the law and the courts by someone who lacks sufficient financial resources to bear the costs that are inherent in bringing and pursuing a court case – particularly legal costs and fees. In other words, whether such a rule fulfils the “provision of means” aspect of the fundamental right of access to the law and the courts, which takes practical shape in the “state’s duty to ensure means (such as legal aid) which tend to avoid denials of justice due to a lack of financial resources” (Constitutional Court Ruling no. 467/91, Series II of the Diário da República dated 2 April 1992. In the same sense see: Gomes Canotilho, Direito Constitucional e Teoria da Constituição, Almedina, p. 501; and Jorge Miranda/Rui Medeiros, Constituição Portuguesa Anotada, Volume I, Coimbra Editora, notes on Article 20, point VI).
3. Taking the Constitution of the Portuguese Republic as it stood at that time as its point of reference, Executive Law no. 387-B/87 of 29 December 1987, which was published under the provisions of Law no. 41/87 of 23 December 1987, which authorised the government to legislate on the establishment of the rules governing access to the law and the law-courts, was the first legislation to regulate the system of access to the law and the courts, which it configured on the basis of systematised actions and mechanisms for providing legal information and legal protection, the latter in the shape of the legal advice and legal aid formats (Articles 1[1] and [2] and 6).
Although this overall configuration has been maintained to date (see Articles 1[1] and [2] and 6 of Law no. 30-E/2000 of 20 December 2000, and Articles 1[1] and [2] and 6 of Law no. 34/2004 of 29 July 2004), both Law no. 30-E/2000 and Law no. 34/2004 have made significant changes. The former made the social security services responsible for considering requests for legal aid, instead of the courts (Article 21), while the latter introduced innovations in the way in which the lack of sufficient financial means of applicants for legal protection is determined.
Following the publication of Law no. 34/2004, the grant of legal protection to a person who, taking into account factors of a financial nature and the person’s ability to make a contribution, does not enjoy the objective conditions needed to bear the costs of a court case at a given moment in time (see Article 8[1] of Law no. 34/2004), became conditional on the amount of his relevant income for the purposes of legal protection (Articles 8[5] and 20[1] of, and point 1 of the Annexe to, Law no. 34/2004), which is determined on the basis of the income of his household – i.e. also taking into account the income of the persons who live in joint economy with the applicant for legal protection (point 1[1] and [3] of that Annexe) – and of the formulae provided for by Articles 6 to 10 of Ministerial Order no. 1085-A/2004 of 31 August 2004.
A concrete assessment of the situation of a lack of financial means on the part of an applicant for legal protection is now only conducted on an exceptional basis (see Article 20[2] of the 2004 Law and Article 2 of the said Ministerial Order). This differs from the practice under the previous legislation (see Articles 7[1], 20[1] and [2], and 23[2] of Executive Law no. 387-B/87, Articles 7[1], and 20[1] and [2] of Law no. 30-E/2000, and the model for the legal aid application form for private individuals approved by Ministerial Order no. 1223-A/2000 of 29 December 2000), in relation to which we should note, as an example, that setting aside the presumption of a lack of sufficient financial means laid down by the law was dependent on whether the applicant was in receipt of other income – be it his own or that of third parties.
In the light of this change, in the decision against which the present appeal has been brought the court concluded that “the rule which constituted Article 7(1) of Law no. 30-E/2000 December 2000, and whose terms were fulfilled in the concrete case in question, became a rule whose fulfilment was determined by the legislation. That which had previously been a rule that was open to the possibility of weighing up the concrete case in question, became a closed rule in which the only things that were taken into consideration were strict economic/financial aspects of the issue, as clearly results from the adoption of a mathematical formula”. The representative of the Public Prosecutors’ Office at this Court noted that that decision denied the application of “rules which delimit and regulate the scope of legal aid in its current version, to the extent that they consider that all the income earned by the interested party’s household – i.e. the set of persons who live in ‘joint economy’ with the applicant for legal protection – is income that is relevant to the assessment of the claimed situation of lack of sufficient financial means, and that that lack of sufficient financial means is calculated in a rigid, table-based way using the ‘mathematical formula’ set out in Articles 6 to 10 of Ministerial Order no. 1085-A/2004 of 31 August 2004” (sheet 56 et. seq. of the case file).
4. Inasmuch as the amount of the income that is relevant for the purposes of legal protection – which was determined on the basis of the income of both the applicant and his grandmother, with whom he lives and who pays his living expenses, and of the formulae provided for by the Ministerial Order which set the criteria for proving and assessing the lack of sufficient financial means required for that protection to be granted – meant that the situation in question in the case before us came under point 1(1)c of the Annexe to Law no. 34/2004 (“the grant of legal aid in the phased payment format provided for by Article 16(1)d of the present Law”), the court against whose decision the present appeal has been brought ruled against the application of the Annexe to Law no. 34/2004, when taken in conjugation with Articles 6 to 10 of Ministerial Order no. 1085-A/2004, on the grounds that it was in breach of Article 20(1) of the Constitution of the Portuguese Republic.
The fact is that the conjugated application of this Annexe and these Articles does not guarantee access to the law and the courts, inasmuch as it consents to the possibility that such access may be denied due to a lack of financial resources. This is because the relevant income for the purposes of granting legal aid is determined on the basis of the household’s income, whether or not the applicant actually benefits from the income of a third party who forms part of the ‘joint economy’. We should particularly note that it is easily possible in practice for an applicant for legal protection not to benefit from the income of a third party who forms part of the ‘joint economy’. Quite apart from the fact that the members of the ‘joint economy’ may have conflicting interests (namely as regards the object of the court case), and that the applicant for legal protection may wish to exercise the right to reserve to himself the defence of those of his rights and interests that are protected by law, the third party in question may not be legally obliged to contribute to the expenses of the person who has applied for legal protection.
In the case before us, given that the duty to pay living expenses does not include expenses concerning court and legal fees (see Articles 2003 and 2005 of the Civil Code and 399[2] of the Code of Civil Process, as well as both that which the decision against which the present appeal has been brought and the appellant’s argumentation have to say on this subject [sheet 59 et seq. of the case file]), it is not possible to assume that someone who has applied for legal protection actually disposes of part of the income that is relevant for the purposes of legal protection – the part comprising the income of the person who pays his living expenses (his grandmother) – a fact which means that it is possible that he may be denied access to the law and the courts by a lack of financial resources. In the same sense we can also mention Article 116(1) of the Code of Court Costs (CCJ), which says that in the case of an executive process to recover such costs, only that part of the property of the person who has applied for legal protection which can be made the object of a legal charge can be executed, while the property of anyone who lives in ‘joint economy’ with him cannot; the same kind of observation can be made in relation to the rules governing persons who live in ‘joint economy’, as laid down by Law no. 6/2001 of 11 May 2001, which say that such persons are not obliged to contribute to expenses of the sort that are at stake in the case before us.
In the light of all this, we must conclude that the rule which the decision against which the present appeal was brought refused to apply, and which was derived from the Annexe that forms a part of Law no. 34/2004, when taken in conjugation with Articles 6 to 10 of Ministerial Order no. 1085 A/2004, does not guarantee access to the law and the courts by a person who lacks sufficient financial resources to bear the expenses inherent in the pursuit of a court case – particularly legal costs and fees.”
2.2. The scope of the finding of unconstitutionality made in the decision that is now before us is not exactly the same as that of the judgement handed down in Ruling no. 654/2006, inasmuch as in the latter (as well as in Summary Decisions nos. 206/2007, 530/2007, 603/2007 and 625/2007) what was specifically at stake was the fact that the set of rules constituted by the Annexe to Law no. 34/2004 and Articles 6 to 10 of Ministerial Order no. 1085-A/2004 requires that, for the purpose of granting the benefit of legal aid, relevance be attached to the income of the household of the applicant for legal protection, whether or not the latter actually disposes of that income, whereas this is not the situation in the present case. Here, the ruling of unconstitutionality was handed down because the aforesaid set of rules was held to be in breach of Article 20(1) of the CRP, in that it imposes a rigid form of calculation on the courts, without offering the possibility of a concrete assessment of the applicants’ real financial situation.
However, although the reason why the rigid system established by the aforementioned set of rules is not appropriate is different, the decision to issue a finding of unconstitutionality is equally appropriate. In the cases which formed the object of Ruling no. 654/2006 and of the Summary Decisions that reiterated the theory behind that Ruling, the legal system required that amounts which the interested party did not actually receive be considered part of his income; in the present case the same system prevents costs, which the interested parties cannot avoid and which effectively reduce their financial capacity, from being considered relevant expenses. In both cases there is a failure to ensure – as, according to the repeated jurisprudence of this Court, the Constitution requires – that the legal aid system effectively ensures access to the courts by people who are lacking in financial resources.
In the case before us, given that it has been determined that the net monthly income of the household made up of the appellant herein and her husband – who is also the object of the same execution process – is € 772.12 (€ 385.80 from the appellant’s unemployment benefit and € 386.32 from the husband’s salary), that they pay € 284.00 per month in rent for their home, and that in three executive processes currently pending against them they were only granted legal aid in the form of the right to pay in instalments of € 45.00 per month per process, for a monthly total of € 270.00, the result is that the monthly income available to them for basic household expenses is reduced to € 218.12 (i.e. € 7.27 per day).
As the Public Prosecutors’ Office says in the arguments it presented to us:
“We should note that what is really at stake in the present case is more than the “rigidity” of the mathematical formula which bound the Social Security Service’s decision on the request for legal aid – it is the fact that it is manifestly inappropriate and unserviceable in the light of our constitutional values. It is a “clear fact” that to “oblige” a “household” with the concrete characteristics of the one to which the appellant belongs, to bear – in the form of a “phased payment” of court costs – a monthly sum of € 45 for each spouse in each case in which they are parties — cannot but constitute a factor which inhibits making their rights a reality in court, and one which is inadmissible in the light of the fact that the Constitution prohibits allowing situations of financial want to affect effective access to the law and the courts.
(…)
The normative criterion that was justifiably questioned by the decision against which the present appeal has been brought thus takes the concrete shape of the formula for calculating that “relevant income” – namely in the form of the “indices” or “coefficients” concerning the deduction of expenditure in relation to the “basic needs” of the members of the household (which, in the present case, lead to the manifestly derisory sum of € 301) – which does not take into account the real cost of housing-related expenses; and at the same time the situation is further worsened by the fact that the calculation of the monthly income for the purposes of legal protection is subjected to a limit of 0.62 of the minimum wage – a wage which itself only guarantees a minimum threshold for subsistence under conditions that ensure basic human dignity.
On the other hand, the appellant’s financial situation is obviously made worse by the circumstance that the formulae that have been questioned in the present case do not make it possible to take account of either the charge on the husband’s salary, or the existence of multiple court cases in which the applicant and her husband are parties, in all of which they are only granted the benefit of legal aid in the “phased payment” format, thereby leading to a material accumulation of expenditure on court costs that will drastically limit the interested parties’ available income.
By ignoring the unavoidable consequences of the fact that there are several court cases at once – in each of which the parties have to bear an amount designed to pay costs, which mounts up and is naturally reflected in the real financial situation of the person who has applied for legal aid – the rules concerning the calculation of the “relevant income” will lead to an inevitable inhibition of the ability to make rights a reality that is derived, in causal and sufficient terms, from the interested party’s real, concrete situation of financial want, which Article 20 of the Constitution of the Portuguese Republic prohibits.”
2.3. It is unnecessary to remark that the constitutionality of the rules in question would be preserved by use of the “safety valve” provided for by Article 20(2) of Law no. 34/2004, which read as follows:
“2 – If, when faced with a concrete case, the social security services feel that they should not apply the result of the consideration process conducted under the terms of the previous paragraph, they shall send the application, together with an informative note setting out the grounds for their position, to a commission composed of a judge appointed by the Supreme Judicial Council, an investigating judge appointed by the Supreme Council of the Public Prosecutors’ Office, a lawyer appointed by the Order of Lawyers, and a representative from the Ministry of Justice, which will take a decision and inform the social security services thereof.”
The thing is that this possibility never became a reality, because the commission on which the applicability of this mechanism was dependent was never formed. The “Exposé of reasons” for Government Bill no. 121/X (Series II-A of the Diário da Assembleia da República, X Legislature, 2nd Legislative Session, no. 58, dated 22 March 2007, pp. 19-46), which was at the origin of Law no. 47/2007 of 28 August 2007, which in turn amended Law no. 34/2004, reads as follows:
“On the other hand, in seeking to temper the objectivity inherent in the criterion of lack of sufficient financial means laid down for private individuals by Law no. 34/2004 of 29 July 2004, there will be a new mechanism for considering applications for legal protection, which will enable the head of the social security services with the power to grant the benefit, to take, on special grounds, a different decision from that which would result from the application of the criteria provided for by the law, if, in the concrete case in question, such application would lead to a manifest denial of access to the law and the courts. The objective of this Bill is the same as that which was intended in 2004 by the provision which Article 20(2) of Law no. 34/2004 of 29 July 2004 made for a commission composed of representatives from the Ministry of Justice and a number of judicial bodies. However, this commission was never created, and it is now deemed more appropriate and feasible to replace it with the mechanism provided for by the present Bill, all the more so in that the large number of applications which the social security services suggest are capable of being sent to such a commission would not appear to be compatible with its collegial nature.” (Our underlining.)
With a view to achieving these goals, Law no. 47/2007 eliminated the earlier paragraph (2) of Article 20 of Law no. 34/2004, and added Article 8. A, paragraph (8) of which states that: “If, when faced with a concrete case, the head of the social security services with the power to take the decision on the grant of legal protection feels that application of the criteria provided for by the previous paragraphs would lead to a manifest denial of access to the law and the courts, he may, by means of an order which must lay out the special grounds for its issue, which cannot be delegated, take a decision that is different from the one that would result from the application of the said criteria”.
What is more, in its interpretation of the ordinary law, the court whose decision is the object of the present appeal considered that the possibility provided for by Article 20(2) of Law no. 34/2004 (which, as we have seen, was never put into practice) was only valid for the administrative phase of proceedings and could not be extended to the jurisdictional phase. Let us recall what that decision, which we transcribed earlier, said:
“As grounds for this appeal, the appellant argued that in the light of her concrete financial situation, the Social Security Service should have made use of the legal provision set out in Article 20(2) of Law no. 34/2004 and thus set aside the criteria defined by the Annexe thereto, in such a way as to grant her the benefit of legal aid.
The faculty to which the appellant refers is available to the Social Security Service during the administrative phase of the proceedings under analysis – a point in time at which Law no. 34/2004 directly provides for the possibility of setting aside the application of the criteria laid down by its Annexe, and of instead expressly appointing a Commission to assess whether the applicant is in fact in a concrete situation of a lack of sufficient financial means.
However, the Law does not provide for this possibility at a point in time when the proceedings are the object of a court appeal, when a lack of sufficient financial means alleged by the appellant must be considered in the light of the criteria laid down by, and published in, the Annexe to Law no. 34/2004 (and Ministerial Order no. 1085-A/2004 of 31 August 2004, which subsequently specified those criteria, and was itself then amended by Ministerial Order no. 288/2005 of 21 March 2005), which criteria the appellant is seeking via the present appeal to have set aside.
But the use of these legal criteria, which are based on mathematical formulae, makes it impossible for the court to concretely assess the financial situation of an applicant for the benefit of legal aid.”
It is thus not possible to say that the provisions of Article 20(2) of Law no. 34/2004 constitute the basis for an attempt to make the system in question compatible with the constitutional requirements to ensure that persons in situations of financial want have access to the courts.
3. Decision
In the light of the above we hereby:
a) Hold unconstitutional, for a breach of Article 20(1) of the Constitution of the Portuguese Republic (CRP), the rules set out in the Annexe to Law no. 34/2004 of 29 July 2004, when taken in conjugation with Articles 6 to 10 of Ministerial Order no. 1085-A/2004 of 31 August 2004, as amended by Ministerial Order no. 288/2005 of 21 March 2005, when interpreted such that they require that when the relevant income of a person who applies for legal aid is determined, the amount to be considered in the calculation is his household’s income as it is rigidly defined thereby, and that it is not possible to concretely assess the applicant’s real financial situation in terms of his income and expenses; and consequently
b) Confirm the challenged part of the decision against which the present appeal was brought.
No costs payable.
Lisbon, 23 January 2008.
Mário José de Araújo Torres
Joaquim de Sousa Ribeiro
João Cura Mariano
Benjamim Silva Rodrigues
Rui Manuel Moura Ramos