Polish patent attorneys, case SK 43/04

September 15th, 2006, Tomasz Rychlicki

Tadeusz Rejman, a Polish patent attorney, was representing his client before the public prosecutor’s office in case of a trade mark infringement. The public prosecutor’s office discontinued the investigations and decided that Tadeusz Rejman is not entitled to represent a person during criminal proceedings. An advocate representing Tadeusz Rejman filed a complaint to the Constitutional Tribunal challenging the constitutionality of the provisions of Article 88 of the Criminal Proceedings Code – CRPC – (in Polish: Kodeks Postępowania Karnego) of 6 June 1997, published in Journal of Laws (Dziennik Ustaw) No 89, item 555, with subsequent amendments. According to Mr Rejman, the challenged provisions infringed on Article 2 and Article 65 of the Polish Consitution.

Article 2.
The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice.

Article 65
1. Everyone shall have the freedom to choose and to pursue his occupation and to choose his place of work. Exceptions shall be specified by statute.

2. An obligation to work may be imposed only by statute.

3. The permanent employment of children under 16 years of age shall be prohibited. The types and nature of admissible employment shall be specified by statute.

4. A minimum level of remuneration for work, or the manner of setting its levels shall be specified by statute.

5. Public authorities shall pursue policies aiming at full, productive employment by implementing programmes to combat unemployment, including the organization of and support for occupational advice and training, as well as public works and economic intervention.

The unconstitutionality of Article 88 of the CRPC was based on the fact that patent attorneys do not have the legitimacy to act in criminal proceedings as a representative of a party, which in consequence violates the rule of a democratic state and that the exclusion of patent attorneys from cases relating to industrial property protection in criminal proceedings, is restricting their right to act on behalf of their clients in cases where they have the knowledge and preparation on a much higher level than other practitioners. This exclusion is also a violation of their constitutional right to free practice.

The Constitutional Tribunal in its judgment of 27 July 2006 case file SK 43/04, published in Orzecznictwo Trybunału Konstytucyjnego Seria A, 2006, No. 7, item 89, ruled that representation of the sufferer in criminal investigations proceedings conducted by the prosecuting authority does not fall within the scope of the patent attorney profession. These steps can be entrusted only to an advocate or a legal advisor where appropriate.