Compensation of the official representative in cases where the unrepresented party prevails

Facts

The High Court of the Canton of Bern, Civil Division, Child and Adult Protection Court (hereinafter: Child and Adult Protection Court) upheld the complaint filed by A. against the medically ordered involuntary commitment and ordered her release. It granted A. legal aid, designated Lawyer X. as the official representative, and obliged the Canton of Bern to pay A. a party cost reimbursement for the appellate proceedings. The Presiding Judge of the Child and Adult Protection Court set the official compensation, taking into account an hourly rate of CHF 200.-.

Lawyer X. has filed a subsidiary constitutional appeal against the decision of the Presiding Judge of the Child and Adult Protection Court with the Federal Supreme Court. He requests that the contested decision be set aside and the compensation be set at an hourly rate of CHF 230.-. Alternatively, the matter should be remanded to the lower instance for a new decision. The Federal Supreme Court upholds the appeal in the sense of the alternative request and remands the matter to the lower instance for a new decision.

Considerations

According to the consistent case law of the Federal Supreme Court, arbitrariness in the application of the law exists if the contested decision is obviously untenable, is in clear contradiction with the actual situation, grossly violates a norm or an undisputed legal principle, or is in a way that shockingly contradicts the principle of justice.

In the Canton of Bern, the area of involuntary commitment is regulated in the Act of 1 February 2012 on Child and Adult Protection (KESG). With regard to the appeal procedure before the Child and Adult Protection Court, Art. 70 para. 1 KESG stipulates that the allocation of costs shall generally be governed by the provisions of the Act of 23 May 1989 on Administrative Justice (VRPG). According to Art. 108 para. 3 VRPG, the losing party must reimburse the party costs to the opposing party. If the officially represented party prevails, the losing opposing party must pay the full attorney's fees and not just a (reduced) compensation according to Art. 42 of the Cantonal Attorneys Act of 28 March 2006 (KAG/BE).

According to Art. 122 para. 2 CPC, which applies as supplementary…