Although it may seem rather surprising, the 2018 amendment to the Advocacy Act, in an effort to expand access to free legal aid for persons whose income and financial circumstances justify it, also unthinkingly prevented applicants who are willing to pay for the legal services in question from applying for the appointment of an attorney by the Czech Bar Association (CBA). The insertion of the provision "whose income and financial circumstances justify it" into Section 18c(1) of the Advocacy Act has excluded all persons who are willing to pay for legal assistance but who have been rejected several times by lawyers to whom they have applied.
Based on the ruling of the Constitutional Court, the legislator will have until 31 December 2023 to adopt legislation that does not contradict the constitutional order. Until that time, the enforcement of the ruling annulling the contested provision has been postponed. The motion to repeal the law was filed by the Municipal Court in Prague, which was deciding on an action against the CBA's order dismissing the proceedings on the application for the appointment of a lawyer to provide legal services. The applicant applied to the CBA for the appointment of a lawyer after several lawyers she had approached refused to accept representation. The applicant's application stated that she did not meet the conditions for legal aid and would therefore bear the costs of legal representation herself. However, in accordance with the wording of the Advocacy Act, the CBA did not grant the request.
The Constitutional Court subsequently ruled in a judgment that the provision in question would be repealed on the date in question because of its conflict with the right of access to a court under Article 36(1) and the right to legal aid guaranteed by Article 37(2) of the Charter of Fundamental Rights and Freedoms. The exclusion of applicants who are unable to obtain contractual legal aid for reasons other than income and assets is therefore clearly impermissible.
Lack of sufficient financial resources is far from the only reason why it may be difficult to obtain professional legal assistance. These reasons may be, for example, the complexity of the dispute or low profitability. Similarly, we should not forget the situation of, for example, elderly people who may not be able to secure a attorney for health or other reasons, or the situation of people living in smaller towns and cities.