Belgium

Region Western and Central Europe

Steven Gibens, Bernard Hubeau & Stefan Rutten

National Report

Summary of Contents

Summary of Contents

1. GENERAL INFORMATION

Belgium is a federal, representative democratic, constitutional monarchy. The King of the Belgians is the head of state, – the current King is Philippe – and the Prime Minister of Belgium is the head of government, in a multi-party system. Executive power is exercised by the government. Federal legislative power is vested in both the government and the two chambers of parliament, the Senate and the Chamber of Representatives. The federation is made up of (language-based) communities and (territorial) regions.

The Belgian population has grown after the second World War (see chart 01):

Chart 01. Belgian population.

Source: 1948-1959 United Nations Statistics Division and 1960-2009 Eurostat – Wikipedia

As Wikipedia reveals:

Belgium had a population of 11,190,846 people on 1 January 2015 as compared to the 10,839,905 people on 1 January 2010, an increase of 601,000 in comparison to 2000 (10,239,085 inhabitants). The population of Flanders, Wallonia and Brussels on January 1, 2019 was 6,589,069 (57.6% of Belgium), 3,633,795 (31.8% of Belgium) and 1,208,542 (10.6% of Belgium), respectively. The population density of Belgium is 376/km2 (970/sq mi) as of November 1, 2019, making it the 22nd most densely populated country in the world, and the 6th most densely populated country in Europe.

The country is populated by a Flemish majority of about 6,400,000 people speaking Dutch, a French-speaking minority of 4,100,000 people (Walloons and French-speakers in Brussels), as well as 73,000 German speaking people in Wallonia, near the German border.

The largest group of immigrants and their descendants in Belgium are Italians, with more than 450,000 people, which is well over 4% of Belgium’s total population. The Moroccans are the third-largest group, and the largest Muslim ethnic group, numbering 220,000. The rest consists mostly of French-speaking people from Brussels, Turks, Kurds,[16] Dutch, French, Portuguese, Spaniards, Greeks, Bosniaks, Algerians, Congolese, Vietnamese, Poles, Indians, and Guineans (around 23% of Belgium’s population is of non-Belgian origin).

The exact number of French-speakers in Brussels is hard to determine, but it is estimated that 80% of the people living in Brussels use French and 20% use Dutch in their households, as the sole language or secondary language, while Arabic is also largely spoken.

In the table are the top 20 countries by origin of the population of Belgium in 2018:

Chart 02. Countries of origin of Belgian population (2018).

Country Number (2018) % of foreign-born % of total population
 Morocco 332,337 14% 2.9%
 Italy 279,083 12% 2.5%
 France 212,370 9% 1.9%
 Netherlands 185,393 8% 1.6%
 Turkey 159,759 7% 1.4%
 Romania 100,245 4% 0.9%
 Poland 95,904 4% 0.8%
 Spain 74,872 3% 0.7%
 Democratic Republic of the Congo 67,390 3% 0.6%
 Russia 58,851 2% 0.5%
 Portugal 52,334 2% 0.5%
 Germany 50,563 2% 0.4%
 Bulgaria 40,266 2% 0.4%
 Algeria 30,921 1% 0.3%
 Syria 30,299 1% 0.3%
 United Kingdom 29,235 1% 0.3%
 Greece 27,742 1% 0.2%
 India 23,709 1% 0.2%
 Cameroon 21,505 1% 0.2%
 China 20,866 1% 0.2%
Other countries 529,323 22% 4.7%
Total 2,419,310 100%

21.3%

 

Source: Wikipedia

Economically GDP and PPP are high and Belgium rates at  the 17th place in the world. Life expectancy in Belgium is also high, due to a well elaborated welfare system. Gini-coefficient  between 2010-17 is 27.7% and Belgium ranks at stage 17 in the world. And the expected years of schooling differs between female and male, but are rather high.

Chart 03. Life expectancy at birth from 2010-2018.

Year 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018
Life expectancy 79,7 79,9 80,1 80,3 80,4 80,6 80,8 81 81,1 81,3 81,5

Source: UNDP

Chart 04. Expected years of schooling from 2010-2018: female and male.

Year 2010 2011 2012 2013 2014 2015 2016 2017 2018
Female 20 20,1 20,2 20,4 20,7 20,8 20,8 20,8 20,6
Male 18,1 18,2 18,3 18,4 18,7 18,8 18,8 18,8 18,8

Source: UNDP

Chart 05. PPP and GDP from 2008-2018.

Year 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018
PPP 42589 40410 42385 41700 42125 41688 41632 41598 42260 43300 43821
GDP 447,7 455,7 456,8 457,7 463,4 471,5 478,3 486,6 493,6

Source: UNDP

3. PROCESS AND PROCEEDINGS: OVERVIEW

3.1. Criminal Procedure[11]

Although civil and criminal courts are both in the same “ordinary” court system, it must be stressed that criminal cases have a specific “launch”, with a pre-trial phase. The Belgian criminal procedure consists of two main stages. The investigation phase or pre-trial phase is said to be inquisitorial because the investigation is in writing, secret and non-accusatorial. The pre-trial investigation is not executed autonomously by the police but is led by the Public Prosecutor. For issuing enforcement orders (to issue a warrant for a house search, a warrant for a telephone tap or to grant a witness full anonymity…) a specially competent Investigating Judge exists. When involved, the Investigating Judge will actively lead the investigation. In this stage, the suspect is not expected to actively participate in the evidence gathering. The investigative proceedings are put in writing and are bundled in a criminal file which will serve as the basis for the second stage, the trial stage.

The criminal prosecution proceedings or the trial stage is said to be accusatorial because its proceedings are public, oral and accusatorial. The judge plays a more passive role than the Investigating Judge during the pre-trial stage and the equality of arms is guaranteed to a large extent. Nevertheless, the trial proceedings still have considerable inquisitorial characteristics. The trial stage is based mainly on the investigative proceedings executed during the pre-trial stage and bundled in the criminal file. The judge will usually already have prepared the case on the basis of the file. The judge will lead the trial and will determine if certain additional inquiries are necessary. As a result, the information gathered during the pre-trial stage will weigh considerably at the trial stage.

Both stages are governed by the Code of criminal procedure (1867).

Accordingly to the different stages the criminal courts can be divided in three categories: investigative courts, trial courts and courts for execution of sentences (the Sentence Enforcement Court). The investigative courts are divisions of the Court of First Instance (the Judicial Council (de Raadkamer / la Chambre du Conseil)) and the Court of Appeal (the Chamber for Indictments (Kamer van Inbeschuldigingstelling / la Chambre des Mises en Accusation)). They form the interface between the pre-trial phase and the trial stage. The investigative courts have three different tasks. Firstly, the investigative courts control whether there are sufficient indications of guilt to bring the suspect before the trial judge. Secondly the investigative courts control the regularity of the investigative actions. Thirdly, a final important function of the investigative courts is to control the pre-trial detention. The trial courts (the Criminal Courts) are competent for judging the merits of the case. The Sentence Enforcement Courts are responsible for the enforcement of criminal penalties and deal among other things with requests for conditional release, but also can suspend or revoke the conditional release. In Sentence Enforcement Courts a professional judge is assisted by two lay judges, one specializing in penitentiary matters and the other in social reintegration.

3.1.1. The investigation phase or pre-trial phase

The police investigate infringements and perpetrators and gather evidence. Where the police suspect the existence of an infringement, they notify the Public Prosecutor who decides (i) either to close the file without further action; (ii) or to continue the enquiries himself (standard investigation); (iii) or to appoint an Investigating Judge, asking him to investigate a specific fact and not one person in particular (judicial investigation). A distinction has to be made between the investigation led by the Public Prosecutor (which is the standard) and the investigation led by the Investigating Judge (judicial investigation).

The Public Prosecutor has less extensive investigative powers than the Investigating Judge. The Investigating Judge or the Public Prosecutor directs the enquiries and gives instructions to the police who carry out the investigations (interviews, searches, DNA samples, etc.).

Police arrest. The police have the authority to deprive a person who has committed an infringement or who is suspected of having committed an infringement of his liberty for 24 hours. After this period the person has either to be released or to be placed into custody.

Custody. If the Public Prosecutor decides that the person should be placed into custody, he will request the Investigating Judge to issue an arrest warrant. The investigating judge is not obliged to issue an arrest warrant. He can decide to release the person (on bail, with or without conditions). When the Investigating Judge decides to place the person in pre-trial custody, the investigation automatically becomes a judicial investigation. During the investigations, the Investigating Judge may issue an arrest warrant on certain conditions: (i) the existence of serious indications of guilt; (ii) facts listed as punishable by at least one year’s imprisonment and (iii) absolute necessity for public safety. If the maximum penalty applicable does not exceed fifteen years’ imprisonment, the warrant can only be issued if there are serious reasons to fear that the accused will (i) fail to attend their trial (i.e. absconding); (ii) tamper evidence or interfere with witnesses; (iii) commit another infringement; or (iv) be in danger of others or themselves. However, the decision to keep the defendant in pre-trial detention is reviewed by the Judicial Council (a chamber of the Criminal Court) on a regular basis (usually every month). The accused must appear before the Judges’ Council Chamber of the Court of First Instance within five days of the issuing of the arrest warrant, and then every month, or every two months from the third decision to maintain pre-trial detention or every three months in the case of a crime reduced to a misdemeanour by statute, until the judicial investigation is closed.

The accused’s right of appeal, which is confined to certain procedural matters, is exercised before the Chamber of Indictments of the Court of Appeal.

The time served in pre-trial detention will be considered as part of the sentence.

3.1.2. The trial stage

In the standard investigation, the public prosecutor can decide to: (i) close the case; (ii) propose a settlement (minnelijke schikking/résolution à l’aimable) to the offender – if the offender accepts the proposal and compensates the damage, the case will be closed; (iii) propose mediation in criminal cases (bemiddeling in strafzaken/médiation dans les affaires pénales) or (iv) send the case to court. In the latter case, the case will then be brought before the Police Courts or Criminal Courts by a ‘direct summons’. If the victim is a civil party to the criminal proceedings he or she will be informed of the public prosecutor’s decision. A direct summons can also be done by a ‘civil party’ (i.e. the victim), which automatically brings the case before a trial court. A direct summons is only possible when there has been no judicial investigation.

If a judicial investigation occurs the Investigating Judge must forward the file to the pre-trial division of the court, the Judicial Council (raadkamer/chambre du conseil). The court hearings in the Judicial Council are held in camera / behind closed doors, so the press and the public may not be present. This pre-trial division can decide to (i) close the case, if it considers that there is not enough evidence against the defendant or that no offence has been committed; (ii) refer the case to court for trial, if it considers that there is enough evidence to bring the defendant to court; (iii) commit the offender to a specialised mental institution if he or she is mentally ill or in a serious state of mental deficiency which makes him or her unable to control his or her acts (in this case the defendant can request a public hearing) or (iv) suspend judgment. The Judicial Council can decide to suspend judgment only when the defendant has not been previously sentenced to more than six months’ imprisonment. The Judicial Council will set a probation period of no more than five years, during which the offender will have to comply with a number of conditions If he or she reoffends or does not comply with the conditions within the probation period, the court can decide to reopen the case. A judicial investigation can only be closed by an investigating court, which can refer the defendant to the trial court by a referral order.

The most serious offences (de facto those where murder or attempted murder is involved) are brought before a jury (the Assize court). The investigating court in first instance cannot in itself refer a person to the Assize court but can refer the file to the Prosecutor-general (article 133 CPC). The Prosecutor-general then has the task of bringing the case before the investigating court in appeal. If the ‘accused’ is referred by the investigating court in appeal by an indictment, the Prosecutor-general has to make the formal ‘act of indictment’ in which the nature of the offence, the underlying fact and all possible aggravating or mitigating circumstances are contained.

Trial. When the case has been brought before the trial court, a date will be determined on which the case will be pleaded.

When the trial begins, the judge in charge of the case will interrogate the defendant if he is present. Before the Police Court and the Criminal Court, unless specified otherwise in the summons, the defendant does not have to be present and can be represented by an attorney. If the defendant is not present and is not represented by an attorney either, a judgement in absentia will be rendered.

Next the court will hear the witnesses, if any witnesses are called. In Belgium it is not automatic to call witnesses and it often does not happen, except in the most serious cases. If witnesses are called, the court will question them and if the attorney of the defendant has questions he passes them on to the court. There is no direct cross-examination of the witnesses.

Then, the victim, acting as civil party, may plead.

Subsequently, the Public Prosecutor will present his case.

At the end defendant and/or his attorney will be given the opportunity to respond to the arguments made by the civil party and/or of the Public Prosecutor. The importance of the plea in criminal cases should not be underestimated. During the pleas one can often get a good indication of the court’s opinion.

At the end, the court will inform you of the date when its decision will be known.

During trial the defendant can be kept in custody as long as the conditions set out above are met.

Limitation period and the reasonable-time requirement. No specific limitation period exists with regard to the police investigation or the investigation phase. As the prescription period starts to run from the day the infringement was committed or ended, prescription continues to run during pre-trial phase. When assessing the reasonable-time requirement, the judge can eventually take into account the length of the pre-trial phase.

The periods of limitation of the criminal proceedings are listed in Article 21 of the Preliminary Title of the Code of Criminal Proceedings (Deruyck & Vanladeghem, 2020). The prescription period starts to run from the day the infringement was committed or ended. With regard to offences (small criminal infringements) a 6 months prescription period applies. Malpractices (mediocre types of criminal infringements) prescribe after 5 years. For crimes (the most serious types of criminal infringements) in general a prescription period 10 years applies. For some crimes (such a s genocide or war crimes), criminal proceedings are not time-barred and for some crimes (e.g. manslaughter, murder…) the prescription period is extended to 15 or 20 years.

Article 21ter of the Preliminary Title of the Code of Criminal Proceedings expressly allows the judge to take into account the reasonable-time requirement ex article 6 ECHR. If the length of the criminal proceedings exceeds a reasonable period, the judge can pronounce a simple conviction without any sentence or he can condemn the defendant to a sentence which may be lower than the statutory minimum.

Compliance with ECHR. Compared to civil proceedings, the influence of the case law of the European Court of Human Rights was much more important. By way of illustration, some ECtHR judgments that had a major impact are briefly discussed.

As for many other European countries the Salduz-judgment[12] was a game changer. As it is well known the European Court established in this case that the right under Article 6(3)(c) ECHR becomes applicable as soon as there is a ‘criminal charge’ – a concept autonomously interpreted by the Court – and, in particular, from the time of the suspect’s arrest. Every suspect or accused thus enjoys, as a rule, a right to prior (confidential) legal consultation and physical presence of his or her attorney while in police custody and during the whole pre-trial phase of criminal proceedings in relation to all interviews, including the very first police interrogation, and other investigative acts in which they participate. In accordance with the consecutive European Directives, Belgium embedded the right to assistance of an attorney from the time of the suspect’s arrest in its legislation and an on-call service was organised within the Bar.

A second recent case which had a major influence on the Belgian criminal justice system, is the case of Taxquet v Belgium.[13] The European Court held in this case held that the verdict on the national level, issued on the basis of trial by jury (a system used in Belgium for the more severe crimes, dealt with by the Court of Assize), was not sufficiently motivated and thus ran counter to Article 6 ECHR (right to a fair trial). The Court considered that the motivation in a criminal judgment both protected the accused and also formed a bulwark against arbitrariness. In the Belgium system (and several others) a jury could only answer the questions posed to it by yes or no or guilty or not guilty. In the aftermath of this decision the proceedings in front of the Court of Assize were altered. After the jury has answered the questions posed to it in a first deliberation, the trial judge will attend the jury’s second deliberation to help draft a judgment which does sufficiently motivate.

Lastly, an important concern with regard to the Belgian criminal justice system has been the hopeless situation of offenders with mental disorders. The ECtHR judged that there was a structural breach of the Convention by Belgium with regard to the detention of offenders with mental disorders in a prison environment unsuited to their therapeutic needs.[14] The Court decided to apply the pilot-judgment procedure in the case (as 50 similar cases were pending before the ECtHR), giving the Government two years to remedy the general situation and adjourning proceedings in all similar cases for two years. Belgium was required to organise its system for the psychiatric detention of offenders in such a way that the detainees’ dignity was respected. A new Involuntary commitment act came into force on 1 October 2016, one of the aims of which was to improve the legal position of offenders with mental disorders and to raise the threshold for commencing involuntary commitment. Shortly afterwards, a master plan for prisons and the opening of specialised psychiatric detention centres was approved.

3.2. Civil Procedure

There are two court branches within the Belgian system: the administrative courts and the ordinary courts.

The administrative courts deal with matters relating to administrative law; that is, the organisation, the functioning, and the control of the executive. The Council of State is the highest administrative court. It can overturn decisions of government officials and regulations of other administrative authorities and state agencies on the basis of excess or abuse of power or if it considers that essential procedural requirements are violated (it include matters environmental disputes, civil service law…). The Council of State also acts as a Supreme Court for decisions of other specialised administrative courts, such as the Council for Alien Disputes (competent for cases with regard to the residence status of aliens), the Council for Building Permit Disputes or the Council for exam disputes (an administrative court that hears cases with regard to decisions on the progress of studies taken by institutions of higher education in the Flemish Community).

The ordinary courts have jurisdiction over civil and criminal matters. The jurisdiction with regard to civil matters includes business disputes, labour and social welfare cases and family disputes.

Civil proceedings in Belgium are governed by the Code of Civil Procedure (1967).

Party autonomy combined with an active role of the judge. Belgian civil procedure is guided by the principle of party autonomy. The parties set the limits of the dispute. They are solely responsible for specifying the relief sought and the court cannot grant a claim that was not expressed or grant more than was claimed. Nevertheless, the judge has a case management responsibility and a certain “inquisitorial” or “investigative” role in relation to the facts and evidence (Taelman en Van Severen, 2018). The judge must ensure that the procedural rules are respected and he can direct and instruct the parties in order to make sure that the progress of the proceedings is maintained and a judgement can be rendered within a reasonable delay. The investigative role of the judge is threefold. First, a judge can deduce extra information from the facts or from the evidence presented by the parties, even when none of the parties has relied on this information. Second, a judge has the power to ask appropriate questions to the parties during the hearing. Third and most far-reaching, is the power of the judge to order any additional investigation measure (e.g. forced submission of documents, appointment of an expert witness…).

Start of the proceedings. Proceedings can be initiated either by a writ of summons[15], by a petition / inter partes application[16], by the voluntary appearance of the parties[17] or by an unilateral application[18]. In principle proceedings commence when the applicant (or its lawyer) asks the court bailiff to serve the summons to the defendant. The voluntary appearance, the inter partes application and the unilateral application are exceptions to this general principle.

Introductory Hearing. Cases that only require limited debate, such as the recovery of undisputed claims and requests for the appointment of a court expert, will normally be decided at the introductory hearing or shortly after.[19]

In cases that require a more extensive exchange of arguments, the parties can always agree to a calendar to submit their respective arguments. If at the introductory hearing the parties do not agree to such a calendar, or to an adjournment of the case, the court should normally establish a calendar itself.[20]

If the defendant does not attend the hearing, the judge may render a judgment in default / in absentia.[21]

The claimant serves his documentary evidence on the defendant and must ensure that the defendant receives the documents.

Hearing. The oral hearings take place after the exchange of briefs and exhibits by the parties. If a calendar was set at the introductory hearing, the hearing date is known from the start. If this was not the case, the parties can request the court to fix a hearing date.

Civil hearings are open to the public. Parties may plead in person or through their attorney (or exceptionally through another legal representative).

Judgement. After the oral pleadings, the judge will deliberate and a written judgment should normally be given within one month.[22]

Urgent matters. The presidents of the Courts of First Instance may provisionally rule on all urgent matters (even in administrative matters). The presidents of the Labour Tribunals and the Business Courts have a concurrent competence to deal with urgent matters which fall in the normal scope of their jurisdiction.[23] In order to make use of these summary proceedings (kort geding / les procédures en référé), two conditions must be met. Firstly, the request has to be urgent, meaning that an immediate decision is desirable to prevent (further) harm or serious discomfort. Secondly, during summary proceedings the president can only order provisional measures (Taelman & Van Severen, 2018). The interim measures ordered by the president of the court cannot decide on nor cause any prejudice to the merits of the case. The interim measures have a limited effect in time and shall only apply until a decision on the merits of the case is rendered.

Conciliation or settlement of a dispute during formal civil legal proceedings. Currently the Judicial Code explicitly states that the judge promotes an amicable settlement of disputes at any stage of the proceedings.[24] With the exception of summary proceedings, the judge may, at the introductory hearing (or during a special hearing on a nearby date), question the parties about the way in which they have tried to resolve the dispute amicably prior to the proceedings and inform them of the possibilities to do so. To this end, the court may order the personal appearance of the parties. At the request of one of the parties or if the judge deems it useful, he may, if he finds that a settlement is possible, postpone the case to a later date (which may not exceed one month) in order to enable the parties to examine whether their dispute can be resolved amicably in whole or in part.

Based on the information received during the introductory hearing and in any stage of the proceedings, a judge can refer parties to mediation[25] or collaborative negotiations[26] if at least one of the parties agree. This means that a mediation or collaborative negotiations can be imposed on one of the parties.

The Judicial Code also states that it is the duty of the judge to conciliate the parties. In some matters (e.g. labour disputes) a preliminary conciliation attempt is obligatory. When a conciliation attempt is obligatory, this often is a mere formality. The obligatory conciliation attempt is the only example under Belgian law in which parties are required to rely alternative dispute resolution before having access to court. A judge can attempt to conciliate the parties in any stage of the proceedings.

Compliance with article 6 ECHR. The Belgian civil legal system does comply with the rule of law and respects due process. The main concern is compliance with the reasonable-time requirement. All reforms of the Judicial Code had as an important aim to reduce the judicial backlog. Despite the efforts made the judicial backlog is still considerable at the level of the courts of appeal and in cases in which a court expert has been appointed. The case law of the ECHR that affected the Belgian civil legal system the most, was the case Borgers/Belgium.[27] This case led to the reform of the Judicial Code with regard to the advisory role of the Public Prosecutor’s Office in civil cases. Parties were granted the right to respond (in writing) to the advisory opinion of the Public Prosecutor’s Office in civil cases and in Supreme Court proceedings the Public Prosecutor was excluded from the deliberations of the judges of the Supreme Court.

3.3. Alternative Dispute Resolution

Under Belgian law use is made of the following ADR techniques: conciliation, arbitration, ombudsman, mediation and collaborative law.

Conciliation. Under Belgian law conciliation generally refers to the attempts made by the court to settle a dispute in the course of judicial proceedings concerning the dispute in question.[28] Traditionally, the Belgian legislator attached great importance to the so-called conciliating role of the judge. In practice, the judicial history reveals a considerable gap between the law in books and the law in action. Although conciliation is always optional and in some cases mandatory[29], this conciliatory task was, for a long time, almost solely implemented with success by the Justice of the Peace Courts (Raes 2019).

Arbitration. Belgium is a party to most of the international conventions with respect to arbitration, including the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Belgian arbitration legislation is based on the Uniform Law of the Strasbourg Convention of 28 January 1966 and its later amendments. As a general rule, any dispute which arises out of a civil or commercial relationship may be submitted to arbitration as far as it regards a ‘pecuniary claim’ or a ‘non-pecuniary claim with regard to a matter in which a settlement agreement may be made’ (this explains why family disputes and other disputes governed by rules of public policy cannot be subject of arbitration).[30] This general principle is, however, subject to exceptions. Disputes may not be submitted to arbitration if specific laws prohibit this (e.g. consumer disputes, housing rental disputes with regard to somebody’s main residence…). Arbitration is always a consensual process under Belgian law.

If a dispute that is subject to arbitration is brought before a court, the court must, upon request of either party, rule that it lacks jurisdiction, unless the arbitration agreement is invalid or has ceased to exist. In an arbitration procedure[31], the arbitrator(s) pronounce(s) a judgement on the dispute as a judge would. The arbitrator(s) give(s) a decision in writing, the ‘arbitral award’. A copy of the award is sent to the parties to inform them of the decision. A second copy is deposited at the registry of the tribunal of first instance. The parties have to carry out the award. If one of them does not, the other party can ask the president of the tribunal of first instance to impose its implementation (= exequatur).

Ombudsman. An ombudsman’s mission is to analyse individual complaints concerning the functioning of public institutions (federal public services, pensions, Belgian railways, Communities, Regions, municipalities…) or concerning specific sectors (post office, insurances, banks, telecommunications…) and to deliver opinions. When a company or public institution does not wish to follow the ombudsman’s opinion, they have to give their reasons. The ombudsman also plays a preventive role as it also makes suggestions and recommendations to offer long-term solutions. The services of an ombudsman are free of charge.

Worth mentioning is the Consumer Mediation Service[32], created in accordance with the European directive 2013/11/EU of 21 May 2013 on alternative dispute resolution for consumer disputes. The Consumer Mediation Service is an independent public service which (i) informs consumers and companies about their rights and obligations, particularly about the options available for the out-of-court settlement of consumer disputes, (ii) receives all requests for the out-of-court settlement of consumer disputes and, if applicable, either transfers them to another qualified entity competent in the matter, or handles them itself. The Consumer Mediation Service intervenes in all requests for out-of-court settlements of disputes when no other qualified entity is competent.

Mediation.[33] There are three types of mediation in Belgium. Private mediation is completely independent from judicial proceedings and often takes place without any subsequent court proceeding. The mediation takes place without the interference of a judge. Court-annexed mediation occurs during the judicial proceedings between the parties and is ordered by a judge in a judgment. It is initiated by the court, but then takes place without any further involvement of the court.

With the exception of private mediation in business disputes, only mediators certified by the Federal Mediation Commission, can act as a mediator. Certification is granted after completing a specific training of 130 hours.

Finally, Belgium law has one example of judicial mediation. In disputes pending before the Family Court a case can be referred to the Chamber of Amicable Settlement. Judicial mediation is more intensely connected with the court as an institution in terms of venue and personnel. In the Chamber of Amicable Settlement a judge will act as a mediator between the parties. The judicial mediation is performed by another judge than the judge with adjudicatory competence in the specific case.

In principle, the initiative comes from (one of) the parties involved in the conflict in all three types of mediation. Exceptionally, in a court-annexed mediation, a judge can in certain stages of the proceedings refer parties to mediation if at least one of the parties agree. [34]

Any dispute which arises out of a civil or commercial relationship may be submitted to mediation as far as it regards a ‘pecuniary claim’ or a ‘non-pecuniary claim with regard to a matter in which a settlement agreement may be made’. Settlement is possible as long the dispute is not governed by rules of public policy. Although family disputes are essentially governed by rules of public policy, exception is made for family disputes, which can be subject to mediation. Also disputes to which the government is a party may be the subject of mediation[35]

If the parties request it, and provided that the mediator is certified, the settlement agreement can be ratified by the court competent of handling the dispute. It will then have the same legal value as a court sentence and be binding.

Collaborative law.[36] Since January 2019 a legislative framework for collaborative law entered into force. The new provisions were embedded in the Judicial Code. Article 1738 of the Judicial Code describes collaborative law as a voluntary and confidential dispute resolution process by means of negotiation, in which both the parties to the dispute and their attorneys are actively involved.

This ADR-method can only be used by collaborative attorneys with the required accreditation, obtained after following a specific training. The two Regional Bar Associations are responsible for the training and accreditation of collaborative attorneys. The collaborative attorneys act within an exclusive and limited mandate of assistance and offer advice in order to reach a settlement between the parties to the dispute.

Collaborative law is always voluntary and can never be imposed by a judge without consent of all parties. Either the parties jointly request the referral to collaborative law or the judge takes the initiative, in which case both parties must give their consent.[37]

Policy drivers behind the development of ADR processes in Belgium. The evolution towards a more active judge has the necessary effects during the formal settlement of the case. The Law of 18 June 2018 has given the judge the necessary tools to actively direct parties towards an amicable settlement of their conflict. Since the existing amicable resolution processes, such as conciliation and mediation, are now only applied sporadically and with moderate success, the legislator tries to stimulate these alternative processes. The judge would rule only in exceptional circumstances in order to settle the dispute between the parties. Bringing a case to court should thus be regarded as an ultimum remedium. The legislator has made use of this moment to consolidate the active role of the judge. The judge can oblige the parties to make an attempt at mediation before proceeding to adjudicate the dispute.[38] He may also question the parties on the steps they have already taken to resolve their dispute amicably. If they have not yet attempted to do so, the court will inform them of this possibility.[39]

Besides the benefits of the amicable settlement of disputes, the main policy driver behind the active promotion of ADR is the concern that the 19th century judicial system has become to costly in times of austerity

People with limited means benefit from the same (financial) support as if they would have entered into judicial proceedings. They can benefit from the assistance of a pro deo attorney and the costs related to mediation will be supported by the government.

3.4. Simplification of law and by-passing legal processes

It is impossible to give a general overview of all simplification of law over the past decades. Belgium underwent the same developments as many European countries. In accordance with the European Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, Belgium introduced strict (no-fault) liability rules for defective products. Another development is the introduction of “no-fault” divorce laws, which made it over the years more and more flexible to get a divorce.

In this report we focus on two more recent developments: the introduction of a new recovery procedure for unchallenged claims in business disputes and the introduction of a “no-fault” compensation law with regard to healthcare.

Recovery Procedure for Unchallenged Claims. A summary order for payment procedure was introduced in 1967, at the same time of the enactment of the Belgian Judicial Code. The introduction of this procedure aimed at introducing a quick and simple procedure for the collection of small claims and eliminating the possibility for a debtor to delay payment by way of abusive and frivolous arguments. The procedure is open to claims falling under the jurisdiction of the Justice of the Peace, the Police Court, or the Business Court. The claim must relate to an established debt of an amount not exceeding € 1.860. The summary order for payment procedure was (and still is) a voluntary and not successful procedure and this led to the introduction to a new procedure for business claims (Voet, 2015). In order to tackle the problem of late payment, a new procedure was introduced in 2016. This recovery procedure for unchallenged claims should allow a faster and cheaper collection of undisputed invoices. The following elements contribute to this goal. Firstly, it is an administrative procedure. Where previously an unpaid creditor had to pass through the court, it is now sufficient to call in a lawyer and bailiff. As a result, the recovery procedure will progress more quickly and a creditor can, in principle, already claim the amount due after 1 month and 8 days. Secondly, the new procedure eliminates a whole series of costs associated with recovery, making it cheaper than the traditional procedure. Finally, a solvency check of the debtor can be carried out by the bailiff at the start of the proceedings. In this way, the creditor can make an informed assessment of the advisability of initiating proceedings.

 “No-fault” compensation law with regard to healthcare. An interesting example of a no-fault compensation law in Belgium is the law on the compensation of damages resulting from health care[40] This law introduces a no-fault liability for damage caused by medical acts. The victim no longer has to prove that the healthcare provider made a mistake. Victims or their heirs can submit an application for compensation to the Health Care Accident Compensation Fund.

The fund determines whether the damage results from an event giving rise to the liability of a health care provider or from a medical accident without liability.

The procedure is (i) free for the victim who submits a claim; (ii) quick: the victim must be compensated within one year, (iii) simplified: no evidence needs to be gathered, because the compensation fund gathers all the information and (iv) amicable: no need to go to court.

The procedure via the fund is optional and non-exclusive: the victim always keeps the option of going directly to court instead of having recourse to the fund. The victim can also contest the fund’s proposal in court. If the fund is of the opinion that the damage was caused by an event giving rise to the liability of a healthcare provider, the healthcare provider (or its insurance company) must compensate the victim.

The victim will be compensated quickly, whether or not the liability is disputed. If the insurer disputes the healthcare provider’s liability, the fund itself reimburses the victim – insofar as the damage is sufficiently serious – and then recovers the costs from the insurer. The victim is thus quickly compensated.

4. ACCESS TO JUSTICE, EQUAL ACCESS TO COURT AND FAIR TRIAL

The right to access to a judge before a court (and as a consequence, the right to access justice) is not explicitly mentioned in the European Convention on Human Rights. However, it’s generally agreed that this right is implicitly guaranteed by article 6.1. of the European Convention on Human Rights. That article concern the right to a fair trial. The scope of this article has been assessed by the European Court of Human Rights. The jurisprudence has also developed justified restrictions to this right. This article enshrines the right to an effective remedy and to a fair trial.

Article 47 of the European Charter on Fundamental Rights is also relevant here. Article 47 states: Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

In the Belgian legal system, article 23 of the Constitution sets out citizens’ fundamental social and economic rights. The purpose of these rights is to give citizens the opportunity to live in accordance with the principle of human dignity. The right to legal aid or assistance is one of the fundamental rights set out under article 23. In Belgium, the general principle of the right to legal aid or assistance is a constitutional provision. This has been further elaborated upon by the Law of 23th of November 1998, which is an ordinary statute.

4.1. European Convention on Human Rights

The European Convention on Human Rights has been directly incorporated into the Belgian legal system. The legal system has to respect and fulfil the requirements of this treaty, since the legal force of the treaty is more significant than national legislation.

Although Article 6.1. of the ECHR makes no explicit mention of a right of access to a judge, as early as 1975, the European Court of Human Rights decided that the right of access to a judge is an element of the right to due process (ECtHR 21 February 1975, Golder v. United Kingdom). In the absence of a right to access, the article would be absolutely meaningless.

What exactly does the right to access to a judge entail? First, it means that the parties must have access to a concrete and effective opportunity to submit their dispute to a judge and to receive a ruling on it (ECtHR 4 December 1995, Bellet v. France; ECtHR 19 October 2005, Roche/United Kingdom). Further, they must have access to the decision on this dispute and the reasons underlying it (ECtHR 12 July 2001, Prince Hans-Adam II of Liechtenstein v. Germany; ECtHR 30 October 2003, Ganci/Italy; ECtHR 14 December 2010, Boulois v. Luxembourg). The court may not refuse to resort to certain means, and it must provide justification for the ruling (ECtHR 22 November 1995, Bryan v. United Kingdom; ECtHR 21 June 2016, Al Dulimi and Montana v. Switzerland).

Further specifications include that the relevant basic right must be concrete, practical and effective, and not purely theoretical or illusory (ECtHR 9 October 1979, Airey v. Ireland). This should be clearly defined in the law.

Unlike Article 6.3. of the ECHR, Article 6.1. of the ECHR does not include any general obligation to provide a system of legal assistance. According to the court, free legal assistance is not a necessary condition for a fair process and actual access to the judge. This is because such access can be guaranteed by making the procedures themselves sufficiently simple and accessible. In certain cases, however, legal assistance will be necessary in order to guarantee a fair process. This should be considered from the perspective of the special facts and circumstances of each case, and it should depend on the interest of the case to the appellant, the complexity of the legislation and the procedure, and the possibility of the appellant to defend himself (ECtHR 9 October 1979, Airey v. Ireland; ECtHR 7 May 2002, McVicar v. United Kingdom; ECtHR 15 February 2005, Steel  & Morris v. United Kingdom). For cases in which the concrete characteristics of the case necessitate the assistance of an attorney, the government must indeed provide a system of free legal assistance in certain cases. Although the objective should not be to achieve equality of arms between parties, each party should be provided with the opportunity to present its case under circumstances that are not clearly less favourable than are those of the opposing party.

The member states may provide for their own organisation of the right to access to a judge, as guaranteed by the ECHR. Although the ECtHR will not determine the possible limitations, it will monitor their correspondence with the provisions of the charter. Article 6 must be applicable to the dispute; it must involve rights and obligations in the substantive law of the member state concerned; it is a right of a purely procedural nature, such that substantial restrictions are out of the question. The restrictions should not affect the essence of the right. The dispute must pursue a legitimate goal and be proportional to this legitimate goal (ECtHR 21 February 1975, Golder v. United Kingdom; ECtHR 28 May 1985, Ashingdane v. United Kingdom; ECtHR 27 April 2004, Maat v. France; ECtHR 3 June 2004, De Jorio v. Italy; ECtHR 24 June 2005, Lulic & Becker v. Croatia).

4.2. The European Charter on Fundamental Rights

The observance of the fundamental rights in the EU must be effective. This means that individuals whose rights have been violated have the right to an effective remedy. The right to an effective remedy is anchored in Article 47 of the Charter of Fundamental Rights. This ensures that, in cases involving the violation of rights that are guaranteed by Union law, individuals are able to approach the judge in order to demand that their rights be observed.

The Charter of Fundamental Rights of the European Union also establishes that everyone is entitled to a fair trial in all legal procedures relating to Union law: ‘Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice’.

The European Parliament has contributed to the development of the rights of individuals who are suspected or charged in a criminal procedure, such that they have at least the same procedural guarantees in all member states.

° The principle of the assumption of innocence must be observed, suspects or defendants must be able to understand what takes place in criminal procedures and they have a right to interpretation or translation.

° When they are brought before the judge, they must also be informed of their rights and have the right to an attorney. Legal assistance must be provided to individuals who do not have access to sufficient means.

° Additional conditions apply in the case of children who are suspected or charged in a criminal procedure.

° The rights of victims must also be protected throughout the entire EU. The European Parliament and the Council have recently adopted legislation guaranteeing that victims of criminal offences must be treated with respect, that they must receive the protection and support that they need and that they must receive sufficient access to the judge. In EU law, special attention is paid to specific groups of victims, including children, victims of human trafficking and victims of terrorism.

4.3. Belgian procedural law

Belgian civil procedural law does not guarantee the right of access to the judge as such. This right is nevertheless included as a component of procedural law. More specifically, anyone holding a subjective right can bring a lawsuit. In other words, anyone holding a subjective right is entitled to appeal to the judge to demand that a legal obligation be met or that a subjective right be observed. This includes the right to defend an action before the judge concerning these matters. This is an element of a democratic society, and thus also of public order (Court of Cassation 25 April 2002, Arr. Cass. 2002, 1.126, Pas. 2002, 1008).

4.4. Political commitment to access to justice, equal access to court and fair trial

Can we refer to recent statements on these topics by government and public bodies? Under the supervision of the influential King Baudouin Foundation, in 2001 a report on the relation between the citizen and the justice system, a lot of recommendations were made concerning access to justice, equal access to court and fair trial, considered to be one of the cornerstones of a democratic society. This report has been rewritten in 2019, taking into account new developments since the first report, e.g. digitization of aspects within the justice system. Sometimes experts have been asked to write reports on the justice system: the relevant matters often are part of the proposals in these reports (e.g. Erdman & Deleval).

We also can mention preparatory documents of legislative proposals. Debates about these matters in Parliament are rather rare: of course, during the parliamentary procedure which led to the important act of November 23th 1998, these aspects have been discussed. Other parliamentary debates are very casuistic (motivated by concrete events, concrete problems or problems with certain target groups, e.g. refugees or tenants). Since part of the competence for justice matters is transferred to the communities, parliamentary discussions take place in those respective parliaments, e.g. on the first line legal aid in the Flemish or the French Community.

Is this a genuine political commitment? One can say these matters are not put forward at the top of the political agenda.

Let’s have a look into the commitments in the manifestos of political parties. Most of the political parties developed opinions about justice, access to justice and related matters, either in a casuistic way (certain events lead to –immediate- reactions), or in times of general elections.

The right wing parties often concentrate on security issues and how the justice system has to enhance it. The justice system has to be a performing body and fight the lack of sanctions towards criminality. A zero tolerance policy and a stricter execution of sanction is of the essence (NVA).  The right-wing parties are convinced that a general change in mentality is needed with regard to the justice system, in which the primary focus is shifted away from the victim and towards the perpetrator. For this reason, the party is calling for a strict four-track policy: prevention; direct, resolute reaction; or, as needed, alternative and effective, non-compressible sentencing (Vlaams Belang).

The Justice Department is increasingly specialising and gaining expertise in order to address even complex crime efficiently. Organised and cross-border crime can destabilise a society. Such serious forms of crime must be addressed in all possible manners: punitively, fiscally and administratively. The level of penalties for participating in terrorist activities should be increased.

Often, political parties focus on the central role of the citizen in the justice system (NVA).

Political parties on the left side combine a discourse about the pivotal role of the citizen in the justice system with a few other priorities. Access to the judge is a fundamental right of every citizen. For many people, however, this fundamental right has remained largely theoretical. In recent years, justice has been increasingly transformed from a basic right into a luxury product. This has resulted in the emergence of a two-speed justice system. In far too many cases, the result of a procedure is dependent on the financial resources of the party seeking justice. Justice must once again move closer to the citizen by making the justice system more accessible, more affordable and more understandable. The justice system should be modernised (and thus digitised), and legal professions should be democratised (Spa).

The justice system is underfunded, and access to the courts continues to be limited, due to financial obstacles being increased and procedures becoming more complicated. Judicial backlog has since become a major problem. Procedures are incomprehensible, and cases drag on for far too long. The system of legal assistance for people with low incomes has become more expensive and more complex, thus making it more difficult for these people to receive free assistance (PvdA).

The Parti Socialiste (PS) thinks that an input of a billion euros will be needed for the justice system in five years, and it seeks mandatory legal coverage for all citizens, starting with civil procedures. In the meantime, the second-line legal assistance must be re-calibrated to ensure that the most vulnerable people will be able to use the services of the legal profession free or at reduced cost (PS).

According to the green, ecological parties, improved cooperation within the safety chain will ensure better cooperation between services to the benefit of prevention, police (more resources), justice (quicker and more efficient follow-up action), execution of sentences (on a human scale) and re-integration. The justice system must become much more accessible to citizens, as well as to associations, in addition to ensuring fundamental rights and liberties, with a view to the legal position of the victim. The revision of the system of legal assistance is also included on the agenda (Groen v. Ecolo).

The political parties in the centre of the political landscape are also focusing on the right to have access to justice for all. A clear and well-known legal framework is the best existing tool for preventing a sense of injustice and achieving fair treatment for citizens (MR). The state should also guarantee access to the law for all citizens. Also, the item of security (and reinforcement of the role of the police) is at stake, together with issues like accessibility and reduction of the duration of judicial procedures (CD&V, MR, CdH, Open VLD).

In many cases, parties would like to improve the justice system by promoting mediation and alternative forms of conflict resolution: the promotion of a justice system aimed at the resolution of disputes, thereby strengthening the role of mediation and limiting the processing time of case files (CdH).

4.5. Responsibility for access to justice policy

At the federal level the responsibility lies within the hands of the Federal Government Body (you can compare it with a ministry or administration) “Federale Overheidsdienst Justitie”, FOD).

Some parts of the justice policy have been transferred to the level of the communities (“Gemeenschappen”), like the Houses of Justice and the first line legal aid (see  5.2. and 5.3.).

 4.6. Government access to justice policy

Some focus is put on the functioning of the courts and the delays, which are considered to be unreasonable. The consequences this situation has for the access to justice have to be solved. There is some focus on the specific needs of middle class people. Recently a tax advantage has been instaured for people who take an insurance for legal assistance. Another focus is on the introduction or expansion of Alternative Dispute Resolution systems (especially by the Act of February 21st 2005). However, there is no drastic increase of the number of mediated solutions for legal problems. With regard to the legal services and the input by paralegals, there is no increase. On the contrary, recent legislation imposed a partial low amount to be paid by the people eligible for second line legal aid, but this aspect of the legislation has been considered illegal by the Constitutional Court.

Looking into the chapter on accessibility 2018 EU Justice Scoreboard, we can assess the position of Belgium compared to the other countries of the EU: the availability of online information about the judicial system for the general public is average; the access to published judgments online to the general public and the arrangements for online publication of judgments in all instances is way beyond average; the promotion and incentives for using ADR methods are high and the number of consumer complaints to ADR platform is average.

4.7. Equal access to justice for minorities, immigrants, indigenous people or other groups

The most relevant question is which groups experience problems with the equal access to justice. Certain groups are concerned, such that equal access to law and justice is not and cannot be guaranteed. In this case, it is primarily due to financial obstacles, although social, cultural and psychological obstacles exist as well.

Target groups are the following (amongst others): people who are living in poverty and are in a vulnerable situation; individuals with disabilities; children and youths; victims of certain crimes; people with a background of migration; and refugees. In addition, there is a greater call for attention to civil organisations and NGO’s than has been the case in the past.

In EU law as well, special attention is paid to specific groups of victims, including children, victims of human trafficking and victims of terrorism.

 4.8. Access to justice subject of public or scholarly debates

Periods in which justice is the topic of public debate are rare. We can nevertheless identify a few links. First, we refer to the period in the wake of the ‘Dutroux affair’ (1995 and subsequent years), particularly with regard to the call for greater attention to the victims of crimes. In the period of the first decade of the 21st century, greater attention was paid to the accessibility of the justice system to the poor and economically disadvantaged, particularly in response to an important work entitled Algemeen Verslag over de Armoede [General Report on Poverty] (King Baudouin Foundation).

Scientific debates do exist in a semi-permanent manner. This is largely due to the observation that the justice system is not yet working as it should. In many cases, academics are asked for their opinions (e.g. on the management of the courts, the reception function in courts). Under the supervision of the influential King Baudouin Foundation, in 2001 a report on the relation between the citizen and the justice system, a lot of recommendations were made concerning access to justice, equal access to court and fair trial, considered to be one of the cornerstones of a democratic society. This report (Gibens, Hubeau, Parmentier, Van Houtte  & Verbist (2019) has been rewritten in 2019, taking into account new developments since the first report, e.g. digitization of aspects within the justice system. Sometimes experts have been asked to write reports on the justice system: the relevant matters often are part of the proposals in these reports (e.g. Erdman & Deleval).

6. COSTS OF RESOLVING DISPUTES WITHIN THE FORMAL JUDICIAL MACHINERY

The price of court proceedings depends on 3 cases:

  • The cost depends on how a plaintiff starts the proceedings. Some proceedings can be started with a petition. This is the cheapest way. A procedure can only be started with a petition if the law expressly allows it, for example in cases about rent, maintenance fees, etc. The petition must be sent to the registrar, who summons the other party to court by registered letter. At the start of the procedure, the plaintiff only pays 20 euros for the second-line legal aid fund except if he is entitled to free legal aid.

Some procedures with a petition are free of charge, such as:

  • a petition for legal protection:
  • A petition for collective debt settlement;
  • proceedings concerning social benefits;

If a plaintiff starts the procedure with a writ of summons he has to pay the  bailiffs fees:

  • 100 to 200 euros for the bailiff’s fees, expenses and taxes. The exact amount depends on the number of pages, the defendant’s place of residence, whether the summons needs to be translated, etc.
  • 20 euros for the second-line legal aid fund.

If plaintiffs start the procedure with a joint petition, the costs are the same as for a petition.

  • The cost depends from court to court. Role fees must be paid for each procedure before the court. The amount of the role fees is:
  • 50 euros for proceedings before the Justice of the Peace or the Police Court;
  • 165 euros for proceedings before the Court of First Instance and the commercial court;
  • 400 euros for proceedings before the Court of Appeal.
  • At the end of the proceedings, the judge will decide who has to pay the costs. In principle, this is the party who started the proceedings, except:
  • if this party ‘wins’ the proceedings: then the other party usually has to pay the role rights;
  • if the judge decides that the parties each have to pay half or part of the costs.

In the course of the proceedings, other costs may be added, for example, for the party:

  • an expert’s report;
  • a DNA test;
  • the service of a court decision;

…

At the end of the procedure, the judge decides who has to pay the legal costs. The judge mentions this at the end of his/her decision. Usually, this is the party that is proved wrong by the judge.

If a party does not agree with the court’s decision, he can appeal or oppose it. The costs he has to take into account are:

  • the contribution to the second-line legal aid fund: 20 euros;
  • the role rights for the first instance proceedings;
  • bailiff’s fees (if you lodge an objection);
  • the costs and fees of your lawyer (unless you have second-line assistance).

A special situation is the procedure before the Highest Court. The procedure is so specific that only a limited number of specially trained lawyers are allowed to conduct the procedure. Before deciding whether to lodge an appeal in cassation, the plaintiff seeks the advice from a lawyer at the Court of Cassation. At least €2,500 must be paid for the advice.

Role rights for proceedings at the Court of Cassation amount to 650 euros.

7. THE PROTECTION OF DIFFUSE AND COLLECTIVE RIGHTS

Belgian law did not, until recently, provide for actions for collective redress. Only joined actions with closely connected claims, acting in their own name and on their behalf were a way to start a procedure. From 1 September 2014 on actions for collective redress under Belgian Law are possible, but in limited set of cases such as consumer rights and protection rules such as product safety and liability, insurance regulation, protection of personal data, the sale of financial products and pharmaceuticals regulation, as well as competition law, intellectual property law and the statutes on certain regulated industries, such as natural gas and electricity. Only a certain representative organisations may bring cases before court only for facts that occurred after 1 September 2014. And only the courts of Brussels are competent.

Normally only a plaintiff can bring a case before court if he has a direct, personal and actual interest in a claim. It remains clear that except from the actions within the framework of collective redress, no collective claims can be brought before court. This means that joint actions are permitted, but that every person must prove a personal and actual interest. It happened for example in a case against the security staff of the Brussels airport, because of a strike, that hundreds of travelers have sued the staff. Every plaintiff however had to prove that he had a personal and actual interest.

Actions for the protection of a collective interest may only be brought by organisations who have been authorised to do so, either explicitly or generally by the law. These include, for example, consumer protection organisations, environmental organisations and legal entities whose purpose is to protect human rights and fundamental freedoms.

9. TECHNOLOGICAL INNOVATION AND ACCESS TO JUSTICE

9.1. Definition

Online assistance has become a hot issue as the digital age impacts noticeably on the legal sectors. Many organizations now provide online services. In the social sector, online assistance can take different shapes and forms, and it may be known as eHealth, digital care, Welzijn (welfare) 2.0, etc.

Legal aid is moreover part and parcel of the Justice system, but this may covers many different things:

  • The European Commission defines the purpose of e-Justice as follows: ‘to improve citizens’ access to justice and to make legal action more effective, the latter being understood as any type of activity involving the resolution of a dispute or the punishment of criminal behaviour (Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee Towards a European e-Justice Strategy’, 30 May 2008 Com(2008) 329 final (3)).
  • The European Parliament, in its resolution of 18 December 2008 containing recommendations to the Commission, asserts that ‘e-Justice has a broad definition including, in general, the use of electronic technologies in the field of justice’ (OJ C 75, 31 March 2009).
  • The Council, in its Multi-annual European e-Justice action plan 2009-2013, refers to ‘the use of information and communication technologies (ICT) in the field of justice’.

Hence, the term e-Justice refers not to a different kind of Justice, an alternative judicial power, or divergent judicial procedures, but to ordinary Justice involving the use of ICT tools in the organization and performance of task by the regular judicial bodies (Inchausti 2012).

These are the characteristics of e-Justice : (1) internet services for the purpose of public information (or even data exchange between citizens and judicial organizations); (2) internet services that exchange data between organizations (business-to-business); (3) intranet services to facilitate procedures within a given organization (e.g. workflow systems), (4) services that provide ‘juridical communication’ (e.g. protected email, cf. digital signatures), (5) services for digital audio and video recording (e.g. systems for relaying court hearings); and (6) video communication services (telesurveillance and long-distance interrogation) (Vassileva 2007).

In the literature, one finds that e-Justice is commonly associated with the internal organizational aspects of Justice and its online window onto the outside world. The information that is provided to the public tends to deal with the judicial actors, the composition and organization of courts of law, court access (opening hours, information about procedures and updates on procedural state of affairs) and the exchange of legal documents, both internally and externally, e.g. forwarding by e-mail of lawyers’ statements. And, finally, it encompasses the use of digital technology in courtrooms (videoconferencing, etc.). Hence e-Justice has an internal and an external dimension. The latter is often restricted to the provision of information and advice, not least about its own functioning.

Therefore, to approach socio-legal aid services (see for social-legal aid 5.6.) merely as a part of e-Justice would appear not to be a viable option, even though, according to the definition coined by the European Commission, it contributes to enhancing public access to the justice system. Socio-legal aid services go beyond directing users to the Justice system. It stretches out across different societal areas, ranging from labour and employment to consumer affairs, and from immigration and the family to policing and enforcement. The services provided also encompass a variety of methodologies, including the provision of information and advice, the representation of interests, personal counselling, and mediation. Online social legal aid services, then, can be said to provide a service in between welfare work and e-Justice.

Online socio-legal aid services may be described as services that rely on information and communication technology (ICT) to provide virtual socio-legal assistance in resolving everyday questions and issues. Hence its basic characteristics are: (1) use of ICT; (2) working towards the prevention or out-of-court resolution of (potential) conflicts; (3) dealing with everyday socio-legal issues; (4) unrestricted in space and time; (5) aiming to provide effective and efficient access to Justice; and (6) ranging from simple online applications to more complex combinations and sophisticated processes.

Online tools are a part of contemporary society and are used by citizens to find information about and/or solutions to their legal problems. Online tools should therefore be regarded as an important element of justice systems, currently still in the early stages, but most likely gaining influence in the future.

Online legal tools could be limited to providing information by listing frequently asked questions or by giving a brief overview of the citizens’ rights and duties; however, it is not unthinkable that, in the near future, online tools could be used to compile legal documents or to submit an application to the court. The research reported on here offers a first insight into the online behaviour of citizens when confronted with socio-legal problems; however, more research is required to further explore improvements to online tools that might increase citizens’ satisfaction with the services provided.

It is clear that online socio-legal aid is advancing and this might have a significant impact on the current division of tasks in the field of frontline socio-legal aid. This is because such aid does not require the involvement of a professional, with citizens able to find information in their own time without consulting a lawyer. Moreover, it is likely that in the future more online tools will be developed that will empower citizens and allow individuals to find all the necessary information online to fill out an application, to compile a contract of purchase or settle a dispute in a legally binding way. In this scenario, professionals would be responsible for controlling and updating the online information, with the necessary IT knowledge and IT support, but no longer needing to be involved in every transaction or dispute resolution process.

9.2. Overview of online tools in social-legal aid

First and foremost, there are the sites of the Federal government, which fit primarily into the aforementioned definition of e-Justice. For example, the portal site of the Federal government (www.belgium.be/nl/justitie/) provides general information about Justice. It is a non-interactive online application offering downloadable brochures and links to related sites, such as e-Cops, where users can report Internet crimes. In addition, there are the sites of the various authorities and public-law institutions that provide more or less extensive information about citizens’ rights and obligations  (e.g. in the field of social security law: Rijksdienst voor Arbeidsvoorziening (www.rva.be)).

An interesting website hosted by the Flemish authorities (www.rechtenverkenner.be/Pages/Home.aspx ) directs users to information on social benefits and allowances. Its purpose is to provide easy, quick and generally improved access to details about citizens’ basic social rights, including from websites hosted by other services or institutions. It covers a wide range of areas, including law, labour, the environment, telephony, the family, transport, sport, energy, income, taxation, education and justice. The site endeavours to answer everyday questions by providing an online overview of social rights, allowances and other benefits provided by the federal, the Flemish regional and municipal authorities for vulnerable groups such as the elderly, the chronically ill, impaired persons and job-seekers. It also advises users on who to turn to with their social legal questions and issues. Hence, the website’s role is primarily supportive, with limited scope for interaction.

In the sector of subsidized private aid, the GWCs host an interactive site (www.caw.be/jouw-vraag-onze-eerste-zorg) that focus on questions about relationship issues, personal problems, and financial, administrative, legal or material matters, as well as on mediation in conflicts within the household, family or neighbourhood. However, the website does not offer specific online legal information. It merely provides a platform for contact by chat, telephone or email, and it also allows users to make online appointments to sort out their issues, including any socio-legal questions they may have in relation to debt and family matters.

In the field of out-of-court conflict resolution, there is the website of the ombudsman service (www.ombudsman.be). It provides referrals to the relevant ombudsmen and women in areas such as consumer affairs, finance, municipal affairs, health and wellbeing, youth and education, working careers and retirement, mobility, civil documentation, and housing and the environment. It also provides a step-by-step platform for filing complaints and, in this sense, functions as an interactive tool.

Some of the more specialized sites deal with more specific social legal issues. The Flemish tenants’ platform (Vlaams Huudersplatform), for example, operates a site (www.vob-vzw.be/hb/tabid/63/default.aspx) that provides information about itself and about tenancy law. It also allows users to download documents such as texts of law and templates. It is a basic online application. Users who require more detailed information are referred to local tenants’ associations, who provide face-to-face information and limited assistance to members during consulting hours.

The website of the Office of the Flemish Commissioner for Children’s Rights (www.kinderrechtencommissariaat.be) is devoted to detecting signals of abuse from children, youngsters and professionals. The office investigates complaints, offers mediation and advises policymakers with a view to protecting children’s rights in Flanders. It deals with online complaints and engages actively on various social media.

The children’s rights centre hosts a website (www.kinderrechtswinkel.be) that is tailor-made for children and youngsters. It provides information on children’s rights and allows users to engage in chat. As the website is up for an overhaul, it also invites user evaluation (meta online application).

There is also a website devoted to first-line debt assistance (www.eerstehulpbijschulden.be), It is operated by the Flemish Centre on Indebtedness (Vlaams Centrum Schuldenlast, VCS now part of the organisation Men and Society), that is subsidized by the Flemish Community. The site provides information about debt, debt assistance, and the rights and obligations of debtors and creditors. It offers referrals on the basis of questions received and answered. It also provides a link to an online budget planner (www.budgetplanner.be/), an application that allows users to meticulously input data on their income and spending behaviour and that, on this basis, formulates a brief advice.

Also noteworthy is a website run by the Federal Public Service for the Economy (http://economie.fgov.be/nl/geschillen/Consumentengeschillen/#.U6_fm7HIyX8). It endeavours to offer quick and cheap solutions for both duped consumers and unpaid traders. The government provides an online application for mediation towards out-of-court settlement of such commercial disputes. The site also offers an online satisfaction test.

In the field of asylum and immigration, the site run by Kruispunt Migratie-integratie Vzw. (www.kruispuntmi.be/thema/vreemdelingenrecht-internationaal-privaatrecht) offers legal information, arranged by theme and according to level of detail. It also provides access to an online legal helpdesk and to a database of specific jurisprudence on migration and integration issues. The centre’s activities are also advertised on Facebook.

As one can observe the online information on everyday legal issues in Flanders and in Belgium are available in a mere fragmented way in contrast to the site of Droits Quotidiens in the French speaking part of Belgium. It provides legal aid in an integrated manner to the public in general and to social workers as intermediators more specifically. A similar initiative in collaboration with Droits Quotidiens in Flanders is launched and is named Helderrecht. We will now discuss the case of Droits Quotidiens.

DQ is a not-for-profit organization staffed by more than 10 remunerated legal experts and relaying on a hundred or so external volunteers who are committed to working on a daily basis towards a simplification of the law. DQ combines qualitative legal aid with client independence and autonomy, so that people are able to act personally on the basis of the information provided on their rights and obligations. It is an independent organization committed to helping the most vulnerable users of the law and to informing people about their rights in the clearest possible terms. For more than twenty years, DQ has been providing up-to-date online information pertaining to the following areas of the law: family, housing, youth, social security, debt, immigration, criminality and taxation.

DQ has set itself the goal of providing relevant and clearly worded legal information (plain language) to anyone who may require it. In so doing, it strives to prevent the escalation of problems and to inform people timely, with a view to facilitating out-of-court settlement.  DQ takes an integral approach. It provides a variety of services to citizens and to professional intermediaries, be they jurists or non-jurists.

DQ is committed to providing the socially excluded with timely legal answers, and to enhancing the legal competences of intermediaries, including social workers and educators. In this manner, they act as prevention workers in relation to legal risks (procedures, evictions, …)

Among services offered by DQ/HR  are:

  • A database of over 2150 legal questions and answers;
  • A telephone hotline;
  • A training programme covering over thirty themes;
  • A miscellany of publications, including templates, brochures, educational tools, plain-language contracts.
  • A department of legal design (promoting plain language)
  • A tech department that develops avatars to guide people on their website towards the correct legal answer

9.3. Online behaviour of citizens confronted with legal problems

In 2018 the University of Antwerp conducted a pilot study on the online behaviour of citizens when they were confronted with legal issues (Gibens, Hubeau & Raats, 2018). The respondents in this study were asked whether they had experienced any problems in the past three years concerning: (1) work; (2) a real estate purchase; (3) renting a home; (4) rent of other real estate; (5) purchasing a good or a service; (6) money; (7) minors within the context of the family; (8) health issues; (9) damages of any kind; (10) family (excluding minors) or (11) conflict with the government authorities16. The most frequently encountered problems were health issues (24.3%), work-related issues (24.3%), purchase of a good or service (17.5%) and money (17.4%). The least frequent problems concerned conflict with government institutions (4.6%) and problems with minors within the family (5.1%)17. However, 40% of the respondents[65] did not encounter any significant legal problems in any of the areas listed.

The respondents were asked how the legal issue was resolved and whether legal action was taken against them; whether they had taken legal action themselves; whether they had threatened to undertake legal action; or none of the above. It was surprising to see that in 65% of the cases no threat of or actual legal action was undertaken. Only 12% had undertaken legal action and 14% had threatened to do so. In 9% of the cases, the respondents were subject to legal action taken by the opposite party.

The internet did not serve as the primary source of information for the respondents, with only 35% using online tools to find a solution to the conflict, and 55% reporting that they had not18. The majority of the respondents who had used online tools reported that they had typed some terms into a search engine (66%), while 30% indicated that they began by searching for websites of organisations and/or institutions that provided socio-legal aid. When asked whether or not they deemed the online advice sufficient, 61% of the respondents answered affirmatively, while 36% considered the online information insufficient[66]

Of those who were unsatisfied with the online information, 3% were not satisfied because they did not understand the information provided, 20% were not sure whether they were on the right website, 27% were not sure whether the website offered correct information, and 13% of the respondents could not determine whether they were consulting the right website or if the information was correct. In addition, a total of 20% of the respondents indicated that the information they were looking for was not provided by the online sources they consulted.

At the end of the survey, all respondents – including those who had indicated that they did not use online tools to search for socio-legal information – were asked whether they considered the internet as a useful source of information that had helped them find a solution to the conflict. In total, 76% of the respondents indicated that the internet was a “sufficient”, “good” or “excellent” source of information.

A total of 45% of the respondents who used online tools did not take any action after online consultation of relevant websites, 33% took action themselves, 16% contacted the organisation or socio-legal aid worker they found online and 4% contacted a different organisation rather than the socio-legal aid worker they had found online.

This leads to the following conclusions. Firstly, online legal tools are a source of socio-legal information to citizens, as 60% of the respondents indicated that they had used the internet as a source of information. However, when considering that our pilot survey suggested that 88.5% of the population use the internet on an almost daily basis, this result might seem low. It might be expected that in the future, the percentage of citizens who will use the internet as a source of information on dispute resolution will increase. Secondly, in general, 76% of the respondents deemed the internet to be a useful source of information that could potentially help them find solution. However, only 61% of those who had actually used the internet as a source of information were satisfied with the service provided, while 36% considered the online information insufficient. The reason why the information was deemed insufficient varied. In some cases, it was unclear to the respondents whether they had accurate information, while other respondents indicated that information on their specific situation was not provided.

12. GLOBAL EFFORTS ON ACCESS TO JUSTICE

We can observe some efforts to analyse and compare justice systems within the European Union. One of the instruments is the “EU Justice Scoreboard”, a comparative information tool that aims to assist the EU and Member States to improve the effectiveness of the national justice systems by providing objective, reliable and comparable data on a number of indicators relevant fort he assessment of the quality, independence and efficiency of justice systems in the Member States. Thefore the Scoreboard uses various sources of information, e.g. data provided by the Council of Europe Commission for the Evaluation of the Efficiency of Justice (CEPEJ). One of the characterics of a qualitative justice system is the accessibility (2018 EU Justice Scoreboard, p. 23-40)

At the national and international level a lot of civil organisations, e.g. for the poor (GWC’s), for consumers (Test-Aankoop), for migrants and refugees, for tenants, … participate in the debate on access to justice.

Goal 16 focuses on promoting peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels. Goal 16.3 focuses on the equal access tot he legal system for everybody.

On 25 April 2019, the Belgian Parliament adopted a law on the establishment of a National Human Rights Institution (NHRI) in Belgium. With the law, the Belgian government intends to establish a first step for an NHRI in full compliance with the Paris Principles, a call that has been made for many years by national and international actors, including ENNHRI. The intention is to adopt a cooperation agreement which must lead to an interfederal institution. The new institution has been mandated to address the promotion and protection of human rights in Belgium at the federal level, and will have to flesh out its role within a rather complex institutional framework. The law emphasises the importance of a facilitating role of dialogue and cooperation with relevant existing institutions. Through its mandate to promote and protect human rights, the new institution will be able to further create a holistic approach to human rights in Belgium, and to fill gaps in the current promotion and protection framework.

In Belgium, three institutions have specific mandates related to human rights: UNIA is the Interfederal Centre for Equal Opportunities (B-status NHRI), Myria is the Federal Migration Centre (with whom Unia cooperates on the basis of a protocol submitted in the accreditation process), the Combat Poverty, Insecurity and Sociale Exclusion Service.

13. CONCLUSIONS

In spite of the complicated political structure in Belgium, divided between different ideologies and communities, Belgium is economically one of the most prosperous countries in the world. Its legal system is fairly well developed, but it does not always function optimally. The legal assistance system belongs to the judicare model, although there are also many common features with the welfare model, certainly on the first line.

The emphasis is mainly on dispute settlement, less attention is paid to prevention. Online legal aid in Belgium is still in its infancy, but here, too, we see evolutions. In general, we may conclude that despite Belgium’s high level of prosperity, the legal aid system is rather limited and minimal.

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[1] Undertakings in the sense of EU competition law (any person (natural or legal) engaged in an economic activity, which potentially included state run enterprises in cases where they pursued economic activities) and encompassing all legal entities (even those legal persons who do not engage in any economic activity).

[2] Art. 11 Code of Ethics of the Flemish Bar Association.

[3] https://www.jubel.be/zijn-advocaten-veelverdieners/

[4] Art. 176.2 of the Code of Ethics of the Flemish Bar Association.

[5] Art. 178 of the Code of Ethics of the Flemish Bar Association.

[6] Art. 176.2 of the Code of Ethics of the Flemish Bar Association.

[7] Art. 176.2 of the Code of Ethics of the Flemish Bar Association.

[8] Art. 178bis and art. 178ter of the Code of Ethics of the Flemish Bar Association.

[9] https://www.standaard.be/cnt/dmf20200302_04872884

[10] Royal Decree no. 2 of 9 April 2020.

[11] See for a detailed analysis van Puyenbroeck & Vermeulen 2008.

[12] Salduz v Turkey App no 36391/02 (ECtHR 27 November 2008); also see Beuze v. Belgium App no 71409/10 (ECtHR 9 November 2018).

[13] Taxquet v Belgium App no 926/05 (ECtHR 16 November 2010).

[14] W.D. v Belgium App no 73548/13 (ECtHR 6 September 2016).

[15] Art. 727-730 Judicial Code.

[16] Art. 1034bis to 1034sexies Judicial Code.

[17] Art. 706 Judicial Code.

[18] Art. 1025-1034 Judicial Code.

[19] Art. 735 Judicial Code.

[20] Art. 747 Judicial Code.

[21] Art. 802 Judicial Code.

[22] Art. 770 Judicial Code.

[23] Art. 584 Judicial Code.

[24] Art. 730/1 Judicial Code.

[25] Art. 1734, §1 Judicial Code.

[26] Art. 1740 Judicial Code.

[27] Borgers v Belgium App no 12005/86 (ECtHR 30 October 1991).

[28] Artt. 731-734 of the Judicial Code.

[29] E.g. in labour disputes (art. 734 of the Judicial Code)

[30] Art. 1676 Judicial Code.

[31] The arbitration procedure is described in articles 1676 to 1723 of the Judicial Code.

[32] Regulated by Book XVI of the Code of Economic Law.

[33] The rules regarding mediation can be found in articles 1723/1 1737 of the Judicial Code.

[34] Art. 1734, §1 Judicial Code.

[35] Article 1724 Judicial Code.

[36] Collaborative law is regulated by the articles 1738-1747 of the Judicial Code.

[37] Article 1740 of the Judicial Code.

[38] Art. 1734, §1, second paragraph of the Judicial Code.

[39] Art. 730/1, §2 of the Judicial Code.

[40] Belgian Official Gazette on 2 April 2010

[41] Based on the publication  Gibens, S. (2006). Legal aid in Belgium  the absence of a tradition? International Journals of the Legal Profession, vol. 13, no 1,  3-18.

[42] Parl.St. Kamer 2015-16, nr. 1819/003, 43 (Verslag).

[43] Parl.St. Kamer 2015-16, nr. 1819/003, 55 (Verslag, bijlage hoorzitting).

[44] Parl.St. Kamer 2015-16, nr. 1819/003, 32 (Verslag).

[45] See  Gibens, S. & Hubeau, B. (2015), National Report Belgium, ILAG Conference Edinburgh 2015, 19 p. http://internationallegalaidgroup.org/index.php/papers-publications/conference-papers-reports/category/15-national-reports: the value of the ponts was in 2011-2012, 2012-2013 en 2013-2014: 25,76 € In  2014-2015 : 25,02 €. In 2010-2011 the value of a point was 26,91 €. One have to take into account that in the former periods the nomenclature differed from that of the new one in force since September 2016.

[46] Wet 23 november 1998, BS 22 december 1998 zoals gewijzigd bij de Programmawet 22 december 2003, BS 31 december 2003 en de Wet 6 juli 2016 tot wijziging van het Gerechtelijk Wetboek met betrekking tot de juridische bijstand, BS 14 juli 2016.).

[47] BS 22 December 2016.

[48] Decreet 26 april 2019 houdende de justitiehuizen en de juridische eerstelijnsbijstand BS 17 juni 2019

[49] Art. 508/1 1 Ger.W.(Judicial Code)

[50] Art. 508/1 2 Ger.W.(Judicial Code)

[51] Both terms have the same meaning and will both be used to describe first-line legal aid

[52] In Dutch, the concept of Integrated-Rights Practice is captured by the term ‘Geïntegreerd Breed Onthaal’.

[53] Parl.St. Kamer 2015-16, nr. 1819/001, 19 (M.v.T.).

[54] Art. 2 KB 20 December 1999 (remunerations)

[55] This number is the code number of the nomenclature in the Ministerial decree

[56] art.508/19 Jud.C..

[57] art. 508/19ter Jud.C.

[58] The Flemish new fist line legal aid act refers to 6 B’s, the sixth one is “bekend” (known). In our study we consider “known” as part of “accessible”. One can not reach a service if you don not know it (Gibens, 2018).

[59] Art. 667 lid 2, 3 en 4 Judicial Code.

[60] Art 508/18 Ger.W.

[61] Parl.St. Kamer 2015-16, nr. 1819/001, 17 (M.v.T.).

[62] Parl.St. Kamer 2015-16, nr. 1819/001, 19 (M.v.T.).

[63]The lawyers working in these organisations have a law degree but are not members of the bar. Lawyers who are members of the bar will be called „private lawyers‟. The term „lawyer‟ as such refers to someone with a law degree who is not a member of the bar

[64] https://www.advocaat.be/DipladWebsite/media/DipladMediaLibrary/Documenten/Pro%20Deo/Brief-minJus_Bijlage-3_Juridische-tweedelijnsbijstand.pdf

[65] (N = 156)

[66] (N = 30).