Representation by a lawyer and filing fee
Proceedings before the Constitutional Court entail costs. Pursuant to section 17a VfGG, a filing fee of € 240 is payable on any submission to commence proceedings (complaint, lawsuit, action for the repeal of a legal provision or for a decision in a jurisdictional conflict, challenge of an election, etc.). Moreover, representation by a lawyer is almost always mandatory for the submission of documents in proceedings before the Constitutional Court. This means that the document has to be written and signed (“filed”) by a lawyer (section 17 VfGG). In the further proceedings, the party may (also) act; but if the party wants to be represented, this can be done only by a lawyer (section 24 VfGG). This means that as a rule, there are also lawyer’s fees to be paid.
Legal aid is granted if the applicant’s low income or lack of financial resources would make it impossible for him or her to pay the cost of the proceedings without impairing his/her ability to cover the basic cost of living for him/herself and his/her family.
Moreover, the appeal to the Constitutional Court must not be manifestly unreasonable or without any prospects of success (section 63 ZPO). Litigation is regarded as unreasonable especially if a party not applying for legal aid would, as a result of reasonable consideration of all circumstances of the case, especially of the prospects of enforcing its claim, refrain from litigation. Litigation is manifestly without prospects of success in cases where this is apparent even without consideration of the material points; for example, if a complaint were to be raised after expiry of a relevant time limit; or if an appeal would not challenge a highest-instance administrative decision; or if the Constitutional Court could be expected to refuse to take up the case.
Legal aid may be granted only for specified litigation. In proceedings before the Constitutional Court, it may in particular include the following benefits:
- Provisional exemption from payment of a filing fee pursuant to section 17a para. 1 VfGG and
- provisional free-of-charge legal counsel.
Other potential benefits are listed in section 64 para 1 ZPO (including provisional exemption from payment of: costs of out-of-court official acts; fees payable to witnesses, expert witnesses, interpreters and translators; and necessary cash outlays of the party’s free legal counsel); however, these expenses tend to have nearly no practical significance in proceedings before the Constitutional Court.
Even if legal aid is granted, you have to expect that you will have to compensate your opponent for his or her costs if you lose the case. In complaint procedures against public authorities, however, the Constitutional Court as a rule does not award costs to the challenged authority (no compensation for cost of pleadings); the same applies in the judicial review of laws and regulations in relation to the federal and provincial governments, federal ministers and authorities which have issued a contested regulation; as a result, costs may be awarded only (if at all) to other parties to the proceedings (for example, the holder of a building permit in cases where the permit has been contested by a neighbour; or a contract awarding authority or competitor for a public contract in cases where a decision is contested which was issued in a public contracting review procedure).
To the extent that legal aid is granted, the benefits become effective as of the date of application. Applications for legal aid cannot be submitted retroactively (section 64 para. 3 ZPO).
Legal aid is granted only upon application. Applications for legal aid must be submitted to the Constitutional Court in writing or orally. Together with the application for legal aid, applicants have to submit a current (no more than four weeks old) wealth disclosure statement, which has to identify the applicant and contain information about his/her income, personal wealth, housing situation, financial obligations, obligations to provide maintenance, and other information of this kind. The application has to identify the legal case for which legal aid is sought, as well as stating which benefits the applicant is claiming (section 66 ZPO).
The application form and wealth disclosure statement may be submitted to the Constitutional Court electronically, by post or in person: Legal aid application forms.
The application form for submission by post or in person is available at the office of the Constitutional Court and can also be downloaded from the Constitutional Court’s website (www.vfgh.gv.at) (PDF, 613 KB). The carefully completed form, together with the requested supporting documents, is to be sent by post to the Constitutional Court at its address Freyung 8, 1010 Vienna, or delivered to its Registry there. The form „ZPForm 1 Vermögensbekenntnis“ (“Civil Procedure Form 1 Wealth Disclosure Statement”), which is available at all court offices, may be used alternatively.
In case of a rejection of an application for legal aid addressed to the Constitutional Court, the application cannot be transferred to the Supreme Administrative Court. Applicants wishing to obtain legal aid for proceedings before the Supreme Administrative Court have to apply for it directly and in a timely manner to the Supreme Administrative Court.
If legal aid is requested for a submission which is subject to a time limit or for the improvement of a petition, the legal aid application has to be submitted within the relevant time limit that applies for the submission or improved submission itself.
Examples: A complaint pursuant to Art. 144 of the Constitution (Bundesverfassungsgesetz, B-VG) has to be raised before the Constitutional Court within six weeks of service of the relevant decision of an administraticve court; an application for legal aid in connection with the submission of the complaint must therefore be submitted to the Constitutional Court within the same period.
If a complaint written by the litigant himself has been returned to the litigant by the Constitutional Court, requesting the litigant to have the complaint filed by a duly authorised lawyer within a certain period of time (usually four weeks), the litigant will have to submit any application for legal aid within the same time period.
The timely submission of an application for legal aid interrupts the expiration period of any time limits. The interrupted expiration period starts anew after a decision has been issued on the legal aid application. Depending on the case, this may be the date of service of a decision which appoints a lawyer as legal counsel, or the date on which the litigant is served with a ruling that rejects the application for legal aid. The expiration period for a complaint or improved complaint does not start anew, however, if the application for legal aid is rejected, for example because the applicant has not complied with an order to improve (to remedy defects in) the complaint.
The Act on Fees (Gebührengesetz) exempts applications for legal aid from filing fees and enclosure fees. Neither are they subject to the Court Fees Act (Gerichtsgebührengesetz) or a filing fee under section 17a para. 1 VfGG. By itself, an application for legal aid is therefore not subject to a fee.
If the application for legal aid is rejected, the filing fee of € 240 pursuant to section 17a para. 1 VfGG falls due on any complaint, petition, lawsuit or contestation of an election. The filing fee of € 240 is due and payable even if legal aid is granted in cases where the complaint, petition, lawsuit or challenge of an election was filed before the application for legal aid was submitted.
An applicant who deliberately gives incorrect or incomplete information in the wealth disclosure statement so as to receive legal aid, and whose application would be rejected if the information so given had been true and complete, may be subject to –
- a spurious claim fine of up to € 4,000;
- an order that reverses the provisional deferral of payments, with all amounts falling due retroactively, as well as retroactive payment of lawyer’s fees; and
- prosecution under criminal law (see section 69 ZPO).
Moreover, the applicant is liable for any damage in accordance with the provisions of legislation on compensation for damages.
When legal aid is granted, the payment of expenses and outlays is only deferred. If, during or within three years after the end of the proceedings, you acquire financial resources that enable you to cover the costs, the Constitutional Court may rule that you have to pay retroactively a part or all of the costs, and you may also have to pay the fees of your legal counsel in accordance with official lawyers’ fees scales (section 71 ZPO).
For more detailed legal information on applications for legal aid for proceedings before the Constitutional Court, please contact the office of the Constitutional Court Monday to Friday, 8 a.m. to 3 p.m., either personally or by calling +43 (1) 53 122 8111. An application for legal aid may also be made orally and recorded during the above office hours.