Facts
Parties and procedural history:
The Association A., based in the Canton of Basel-Stadt, which provides free or discounted legal services to its members, lodged an objection against a building permit with the Building Appeals Commission of the Canton of Basel-Stadt on behalf of several natural persons by submission dated 15 September 2022. The President of the Commission set a deadline for the appellants to submit a personally signed submission, stating that the association was prohibited from professional representation pursuant to section 4 of the Basel-Stadt Advocacy Act (Advokaturgesetz/BS).
The association and the represented private individuals appealed this decision with appeal to the Appellate Court of the Canton of Basel-Stadt, which dismissed the legal remedy by judgment of 6 February 2023. The complainants filed a public-law appeal with the Federal Supreme Court against this judgment and requested the annulment of the cantonal judgment and an order for the Building Appeals Commission to admit the association as a representative. In the alternative, they sought a ruling on the association’s entitlement to represent in proceedings before the Building Appeals Commission.
Legal framework:
Pursuant to section 4 paragraph 1 Advokaturgesetz/BS, only those registered in a cantonal bar register are authorised to provide professional representation before the courts of the Canton of Basel-Stadt. Professional representation is deemed to be representation against remuneration. In proceedings before the Tax Appeals Commission, any person with legal capacity is admitted to provide professional representation; the professional rules applicable to lawyers apply mutatis mutandis to such representation.
Subject of dispute: The complainants alleged an unlawful restriction of their constitutional right to free choice of legal representation pursuant to Article 29 paragraph 2 Cst. by the cantonal bar monopoly. They argued that they were denied representation by the association, despite it providing free legal services.
Considerations
Right to free choice of legal representation as part of the right to a fair hearing: The Federal Supreme Court confirmed that the right to free choice of legal representation is a component of the right to a fair hearing pursuant to Article 29 paragraph 2 Cst. This right includes the freedom to be represented by a person of trust, provided there are no specific statutory restrictions. However, this right is not absolute and may be restricted by applicable procedural law. Such restrictions must be based on a statutory basis, justified by a public interest and proportionate. These requirements are derived from Article 36 Cst., which applies mutatis mutandis to procedural guarantees.
Conformity of the cantonal bar monopoly with federal law: The Federal Supreme Court examined whether the bar monopoly provided for in section 4 Advokaturgesetz/BS, which also covers cantonal administrative justice, is compatible with federal law. It found that the cantons have extensive regulatory autonomy in the area of state and administrative judicial proceedings, particularly since the Confederation does not have comprehensive legislative competence in public procedural law. The cantons may therefore determine the circle of authorised party representatives before cantonal (court) authorities themselves, provided no federal provisions stand in the way.
Compatibility with the principle of procedural unity: The Federal Supreme Court held that the cantonal bar monopoly does not violate the principle of procedural unity pursuant to Article 111 paragraph 1 FSCA. While this principle requires that party status in cantonal proceedings be structured in the same way as before the Federal Supreme Court, it does not pertain to the authority to represent. A…