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, 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|
|Democratic Republic of the Congo||67,390||3%||0.6%|
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.
Chart 04. Expected years of schooling from 2010-2018: female and male.
Chart 05. PPP and GDP from 2008-2018.
2. LEGAL SYSTEM
2.1. Type of Legal System
Belgium is a federal state with a civil law system and is a member of the European Union.
The Belgian state was formed as a constitutional monarchy in 1830, as a compromise between French and Dutch claims, appeased by the British government. At that time its legal system was already largely influenced by the French legal system. The legislative branch was formed by a parliament with two chambers (Chamber and Senate). The King is the head of state and of the executive branch, but political power is almost entirely in the hands of the government and its prime minister.
Between 1970 and 1993, the country evolved into a more efficient federal structure. This occurred through six state reforms (in 1970, 1980, 1988-89, 1993, 2001 and 2011-2014). As a result, the first Article of the Belgian constitution reads today: ‘Belgium is a federal state, composed of communities and regions’. The redistribution of power occurred along two lines. The first line relates to language and, in a broader sense, to everything related to culture. The result was several communities. The concept of ‘community’ refers to persons that make up a community and the bond that unifies them, namely their language and culture. Belgium has three official languages: Dutch, French and German. Correspondingly, Belgium today, has three communities: the Flemish Community, the French Community and the German-speaking Community. The second line of state reform was historically inspired by economic interests. The regions, which aspired to more economic autonomy, conveyed these interests. This lead to the establishment of the three regions: the Flemish Region, the Brussels Capital Region and the Walloon Region. Up to a certain level the communities and the regions can be compared with the American states or the German ‘Länder’.
The federal government issues acts (wet/loi), while the regions and communities issue decrees (decreet/decret). However, the core of the civil, commercial and criminal law still remains at the federal level, whereas mostly public law issues like education, environment and culture, have become the competence of the regions and communities. The organisation of the courts in Belgium is a solely federal responsibility.
2.2. The Belgian Justice System
The Belgian judicial system is a system in the civil law tradition, in which a set of codified rules is applied and interpreted by judges. Being part of the European Union Belgium has to apply European legislation and has to give regard to rulings of the European Court of Justice. Belgium is also signatory to the European Convention of Human Rights and the case law of the European Court of Human Rights strongly influences the Belgian approach towards fundamental rights. The importance of this European dimension is evident and keeps growing.
Notwithstanding Belgium is a federal state it still has a unified/unitary national justice system with multiple levels of courts (for more details see: Taelman en Van Severen, 2018). The Belgian court system resembles the French system. The ordinary courts rank in four levels:
2.2.1. Inferior or local courts
The Police Court and the Justice of the Peace Court form the lowest levels of the Belgian court system.
The Justice of the Peace Court (justice de paix/vredegerecht) is a small claims court. It deals with all claims below € 5,000 that are not exclusively assigned to another court. The Justice of the Peace Court is also regarded as a proximity court with a specific jurisdiction over disputes regarding real estate (i.a. lease disputes), neighbour disputes and actions regarding guardianship. There are 162 Justice of the Peace Courts in Belgium (one for each judicial canton).
The Police Court (tribunal de police/politierechtbank) is a traffic court. The police Court has not only criminal jurisdiction regarding traffic offences, but it also has exclusive jurisdiction in civil matters for all compensatory claims relating to traffic accidents. There are 15 police courts in Belgium, i.e. one for each judicial district, except for Brussels where there are four.
2.2.2. Courts of First Instance
The normal starting level (first instance) is the Court of First Instance (tribunal de première instance/rechtbank van eerste aanleg). It deals with both civil and criminal matters. The Court of First Instance is divided into three or four sections. Each Court of First Instance has the following sections: (i) the Civil Court, (ii) The Family and Juvenile Court and (iii) the Criminal Court. Courts of First Instance located in the same city where a Court of Appeal is vested are comprised with a fourth section: the Sentence Enforcement Court. Specialized tax chambers were added to the formal organisation of the Courts of First Instance. There are 13 Courts of First Instance in Belgium (one for each judicial district and two in the Brussels district – one Dutch-speaking and one French-speaking).
Besides the Court of First Instance two specialised courts exist: the Business Court and the Labour Court. Both specialised courts have lay judges alongside professional magistrates. There are nine Business Courts and nine Labour Tribunals in Belgium. In principle, one in the territorial jurisdiction of each Court of Appeal, except for the territorial jurisdiction of the Brussels Court of Appeal, where there are courts in Leuven and Nivelles and two more in Brussels itself – one Dutch-speaking and one French-speaking – and except for the judicial district of Eupen, which has it own German-speaking courts.
The Business Court (tribunal de l’entreprise/ondernemingsrechtbank) has general jurisdiction with regard to all disputes between undertakings. Insolvency proceedings (bankruptcy and business restructuring) belong to the exclusive jurisdiction of the Business Court.
The Labour Tribunal (tribunal du travail/arbeidsrechtbank) has specific jurisdiction regarding matters of individual labour law and social security law.
2.2.3. The Assize Court
The most serious criminal offenses appear before the Assize Court (cour d’assises/hof van assisen), the only Belgian court with a jury. There is a court of assizes for each of the 10 provinces and for the Brussels administrative district. It is not a permanent court but is convened whenever accused persons are sent before it.
2.2.4. Appeal courts
The appeal level is formed by the Courts of Appeal and the Labour Courts of Appeal.
The Court of Appeal (cour d’appel/hof van beroep) deals with appeals against decisions of the Court of First Instance and the Business Court, rendered in first instance. The Court of Appeal thus handles civil, criminal and commercial matters. There are five courts of appeal in Belgium.
The Labour Court of Appeal (cour du travail/arbeidshof) is the appellate court for social law cases coming from the lower Labour Tribunals. They have the same territorial jurisdiction as the Courts of Appeal.
2.2.5. Court of Cassation
The Court of Cassation (Cour de cassation/Hof van Cassatie) is the supreme court, which is located in Brussels. The Court of Cassation is the highest appeal level, dealing only with points of law, no new facts can be brought before this court.
Chart 06. The Belgian Justice System.
In Belgium parallel or informal justice structures are not widespread. Although not much research exists, religious leaders play within certain population groups an important role in the informal handling of disputes (e.g. the Jewish community in Belgium; see: J. Kusters 2008).
2.3. The Structure of the Legal Profession
Law degrees are primarily oriented towards the traditional legal professions: attorneys, notaries, bailiffs and magistrates. Non-traditional professions include government officials, corporate lawyers, and professions that may have no legal component (Van Houtte & Gibens 2001-02). Hereafter we discuss briefly the division of tasks between attorneys, bailiffs and notaries
Core tasks of an attorney in Belgium are representing, assisting and defending the client in legal proceedings and providing legal advice.
According to the latest figures (2018), there are about 18,740 attorneys in Belgium. 10,800 lawyers are members of the Flemish Bar Association. The Association of the French-speaking and German-speaking Bars counts 7940 licensed members.
In 2019 the Association of the French-speaking and German-speaking Bars published the results of a survey to find out what hourly rates their lawyers charge. The average hourly rate amounts to €160.12 (excluding VAT), whereas it was 14% lower 10 years ago. For private clients the average was €126.66 (+ 24% compared to 10 years ago) and for small and medium-sized enterprises (SMEs) a lawyer charges an average of €161.70 (+ 22%). Large companies pay an average of €181.11 (+18%). For Flanders, it is waiting for a new lawyer’s survey, but the figures could well be comparable. By way of comparison, in 2016 the average net taxable income per inhabitant in Belgium was €17,824.
Besides a (normal economic) increase of the fees charged by the lawyers, also other factors led to a serious aggravation of the total financial burden of conducting legal proceedings: in order to encourage ADR the court fees were recently increased, a contribution to the Budget Fund for second-line legal aid was introduced and since 2014 attorneys have to charge VAT on their services, which led to a de facto increase in lawyers’ fees by 21% (Rutten, 2018).
Quite recently the Flemish Bar Association, in consultation with the Association of the French-speaking and German-speaking Bars, created the possibility for attorneys to create Multi-Disciplinary Practices within certain limits. A ‘multidisciplinary association’ (the multidisciplinary alliance to which the members have fully or partially transferred the exercise of their respective professions and have contractually set out how the profits or losses of the alliance, the control, or the ultimate responsibility will be divided among them) remains forbidden. A ‘Multidisciplinary grouping’ (the multidisciplinary alliance whose members have contractually only determined how they will organize common services to support the practice of the profession by its members and how the related costs will be shared) and a ‘multidisciplinary network’ (the multidisciplinary alliance whose members practice their profession separately from each other but recommend other members of the network to their clients) are allowed. A lawyer and a notary could thus decide to create a multidisciplinary grouping together. Non-lawyer ownership and non-lawyer management of a law firm remain impossible.
Bailiffs are Ministerial Officers. A Ministerial Officer is a person appointed by the King (in practice by the Ministry of Justice) and entrusted with specific public service tasks. Nevertheless bailiffs are self-employed. Bailiffs have two key tasks. First of all bailiffs are in charge of the service of documents such as a writ of summons, a court ruling, a payment order, etc. Another primary task of the bailiff is the enforcement of court orders, authentic deeds and other enforceable titles. Enforcement means that the bailiff will seize movable property, bank accounts or real estate or will collect penalty payments for non-compliance with a court order (Article 1385bis of the Judicial Code). Aside from their court duties, established by Article 519, §1 of the Belgian Judicial Code, bailiffs also have a wide range of out-of-court activities which they can perform, including inter alia the amicable recovery of debts.
The profession of notary in Belgium is that of a typical civil law notary. The main activity of a civil law notary is drawing up authentic deeds. By authenticating agreements, the civil law notary gives them a special value that private contracts do not have: as an authentic form of evidence and as regards their enforceability. For some transactions an authentic deed is compulsory. When an authentic deed is not necessary, the civil law notary can assist his clients in drawing up a contract. The liquidation of a succession is another task traditionally entrusted to civil law notaries. The civil law notary is often consulted for drawing up the will. At the time of death, the civil law notary gets in touch with the heirs, provides the information relating to the acceptance or renunciation of the inheritance, proceeds with the division of the inheritance and attends to the procedures that are required to be fulfilled for tax purposes. Civil law notaries may provide consultations or opinions without necessarily having to draw up any deed or agreement.
‘University colleges’ (hogescholen in Dutch) offer a professional Bachelor’s degree in legal practice. People who obtained this degree are commonly referred to as ‘legal practitioners’; in an international context one might say that the Belgian term ‘legal practitioners’ corresponds more or less with the occupation of paralegal. Although paralegals do not have access to the classic professions, legal practitioners can find opportunities performing important preparatory legal and administrative work, including drafting official documents, providing information to applicants, and taking notes during court sessions. Legal practitioners find jobs in the private sector (30 per cent, primarily with banks and insurance companies, as well as in real estate and industry), government (18 per cent, primarily as clerks), and as employees of attorneys, notaries and bailiffs (20 per cent); 4 per cent are self-employed, and the rest work in diverse fields (Van Delm 2012).
2.4. Legal representation in Court
In Belgium self-representation is permissible in all courts, with the exception of the Court of Cassation. In order to conduct proceedings in front of the Court of Cassation, a party must be represented by a member of the Bar of the Court of Cassation (which has only 20 members). In criminal cases representation in front of the Court of Cassation is also possible by attorneys who are certified by the Bar, after having followed a specialised training. In tax cases any attorney can represent a client during supreme court proceedings.
If litigants do not opt for self-representation, they are in principle obliged to be represented by an attorney. In court the parties or their counsel must appear in person. In general, attorneys have a monopoly of representation in civil and in criminal cases and representation by accountants or paralegals is not permitted in Belgium. Legal entities are self-represented by their legally empowered representatives. Before the Justice of the Peace, the Business Court, and the Labour Court, the parties can be represented by a spouse, a legally cohabiting partner or by a family member as long as the representative holds a proxy and the court allows the representation (art. 728, §2 of the Judicial Code). In tax cases, the court can allow the parties to be assisted (not represented) by an accountant (art. 728, §2bis of the Judicial Code). Before the Labour Court, the parties have the right to be represented by a union representative (art. 728, §3 of the Judicial Code). In some social security disputes between an individual and a Public Centre for Social Welfare (PCSW), some particular rules apply (art. 728, §3 of the Judicial Code). The individual can be represented or assisted by a representative from a non-profit organisation, which takes care of the group of persons referred to in the relevant legislation. The PCSW can be represented by an attorney or a staff member.
2.5. Belgian Magistracy
Alongside the legislative power and the executive power, the Constitution established the judicial power, exercised by the law courts. The courts thus constitute an independent power alongside the other constitutional powers. The judicial power is exercised by the courts in accordance with the constitutional and legal provisions. The role of the judiciary is to judge cases. A distinction is made between the judges adjudicating cases in court (la magistrature assise/de zittende magistratuur, ‘sitting judges’) and the lawyers who work in the Public Prosecutor’s Office (PPO) (ministère public/openbaar ministerie,), who essentially bring prosecutions (la magistrature debout/de staande magistratuur, ‘standing judges’).
In Belgium, only an examination, organised by the High Council of Justice, provides entry to the judiciary. The examinations to become a judge or a public prosecutor are organised by the French-language Nominations and Appointments Committee (CND) and the Dutch-language Nominations and Appointments Committee (BAC) of the High Council of Justice.
The exams are intended to assess the maturity and aptitude needed for the performance of judicial duties. Not only the candidate’s intellectual abilities, but also other aptitudes, such as the candidate’s listening skills and tolerance to stress are assessed.
There are three ways of entering the judiciary: (1) the judicial traineeship, (2) the professional aptitude exam and (3) the oral evaluation exam.
The judicial internship entrance exam forms the access towards the judiciary for young lawyers who have at least two year’s professional experience in the legal sector. Via a (written and oral) entrance exam those lawyers qualify for a judicial internship of 24 months. After completing the judicial internship successfully, they can apply for a vacant position as a public prosecutor or a judge.
The second access to the judiciary is the professional aptitude examination. Candidates need at least four years of working experience. After successfully passing the professional aptitude exam they will obtain a certificate. This certificates enables the laureates of the exam to apply immediately for a position as a judge or a public prosecutor. The certificate is valid for seven years.
The third entry to the judiciary is the oral evaluation examination. This exam is reserved for candidates who have acquired many years of professional experience. The awarded certificate, giving instant access to a vacancy, is valid for three years.
Candidates who have successfully passed an examination and who, if applicable, have completed a judicial internship, do not automatically become judges, but can apply when there is a vacancy published in the Belgian Official Gazette.
Between 2006 and 2016 the number of male magistrates decreased 12 per cent and the number of women increased 12 per cent, with the result that women gained parity with men in 2013. Women are higher proportions of magistrates on labour courts (60 per cent), courts of first instance (57 per cent) and parole boards (53 per cent), whereas men still are 86 per cent of the Court of Cassation (Gibens, Hubeau, Rutten et al. 2019).
Chart 07. Number of magistrates
Source: Gibens, Hubeau, Rutten et al. 2019
In 2016 there were approximately 1578 judges in Belgium. With 14 judges per 100,000 inhabitants, Belgium is one of the leaders in the number of judges compared to our neighbouring countries.
Under Articles 144 and 145 of the Constitution, disputes about civil rights belong exclusively to the competence of the courts, and disputes concerning political rights belong to the competence of the courts except where otherwise provided for by the law.
A court or other body capable of rendering judgment can be established only by statute. Under Article 146 of the Belgian Constitution, no extraordinary courts or commissions may be created, no matter what they may be called.
Judicial independence is regarded as one of the core aspects of the principle of separation of powers. The Constitution contains several safeguards to ensure that judges remain beyond the grasp of other branches of government. Article 151 of the Constitution explicitly recognises the independence of judges in the exercise of their jurisdictional competences (Popelier and Lemmens, 2015). The fact that judges are independent, does not mean that they cannot be evaluated and possibly sanctioned (if they do not function properly). Since 1999, judges and public prosecutors are subject to the same evaluation system (art. 151, §6 of the Constitution).
Judges are appointed for life. They retire at an age determined by law and receive a pension provided for by law. A judge can be deprived of his or her position or suspended only by a court judgment (art. 152 Constitution). Judges are, contrary to public prosecutors, independent in the way that they do not belong to a hierarchic corps and are not accountable to anyone.
A judge can be transferred only by appointing him or her to a new position and only with his or her consent (Article 152 of the Constitution).
2.5.2. Public prosecutor
In 2016 there were approximately 858 public prosecutors in Belgium. This equates to 7,61 public prosecutors per 100,000 inhabitants.
The Public Prosecutor’s Office (PPO) is competent for the general application of the criminal law. It is in charge of the pre-trial investigation and decides whether or not to start criminal prosecution. It is responsible for evidence gathering and it is responsible for the execution of the judgments.
Members of the PPO are obliged to follow the orders and instructions of the Minister of Justice. The hierarchic accountability of members of the PPO towards their superiors is limited to their superiors’ written instructions. At trial, they are free to act as deemed appropriate and request the application of the law conscientiously (“The pen is slave, the word is free”). In practice this means that the hierarchical dependency of the prosecuting magistrate is most present during the pre-trial stage (van Puyenbroeck and Vermeulen 2008).
Members of the PPO are appointed and dismissed by the King (article 153 of the Constitution). Due to the fact that they are dismissible and relocatable and that they are part of a hierarchic corps, they are less independent than judges.
2.6. No shortage of legal services
There is no shortage of legal services in Belgium. On the contrary, there is now even a debate as to whether there are not too many attorneys in Belgium. Very recently, newspapers reported some staffing difficulties for public prosecutors.
2.7. The impact of COVID 19 on the Belgian judicial system
As a general rule, the Belgian courts and tribunals were closed during lockdown and only urgent cases were dealt with (e.g. summary proceedings, urgent family matters, etc.). Filing of claims and documents had to be done online via e-deposit (the electronic platform of the Belgian courts).
A Royal Decree was issued and the written procedure became temporarily the rule for civil cases (or criminal cases with civil interests) for hearings scheduled between 11 April 2020 up to 3 June 2020. In addition, limitation periods and procedural deadlines expiring between 9 April 2020 and 3 May 2020 were extended.
The fact that written proceedings became the rule was in practice tempered by the fact that many courts organised online hearings. The online hearings were evaluated positively both by judges and attorneys.
3. PROCESS AND PROCEEDINGS: OVERVIEW
3.1. Criminal Procedure
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 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. 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. 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, by a petition / inter partes application, by the voluntary appearance of the parties or by an unilateral application. 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.
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.
If the defendant does not attend the hearing, the judge may render a judgment in default / in absentia.
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.
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. 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. 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 or collaborative negotiations 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. 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. 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, 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). 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, 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, 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. 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. 
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
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. 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.
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. 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.
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 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).
5. LEGAL AID SYSTEM
5.1. History of legal aid
5.1.1. Legal aid at a standstill
Since the confraternities of St. Ivo in 1677 — the predecessors of the local bars — and Napoleon’s imperial decree of 14 December 1810 which made provision for legal advice bureaus, the administration and organisation of legal aid has not been changed up until recently. Advocates presided over these bureaus for legal advice and divided cases among their colleagues (Dobbelstein & Pinella, 1999). Although the local bars already dominated the legal services market in the nineteenth century, at the beginning of the twentieth century charity organisations and especially unions made further attempts to inﬁltrate the rather comfortable position of the legal profession. The bars tried to claim and even to expand their jurisdiction, but did not always succeed. At the end of the nineteenth century these organisations had been the ﬁrst to attempt to offer people legal advice, information and minor assistance. As Regan stated, the legal profession was reluctant to incorporate these outside litigation services and tried to restrict the action radius of these upcoming services which aimed at improving access to legal advice and assistance to their members, mostly people on lower incomes (Cfr. Regan, 1999). The legal profession, however, was driven by charity and by idealistic but naıëve advocates acting unselﬁshly for the needy.
The rhetoric of the private bars did not match reality and it is not surprising that in Belgium the legal profession was unable to foil the unions’ attempts to breach the monopoly of representation in the labour courts, especially following the Second World War when social and labour acts became law and the social welfare state was founded. The ‘new’ judicial act of 1967 conﬁrmed, however, the advocates ‘monopoly of representation’ but it also entitled union representatives to defend their members before the labour courts.
5.1.2. Law ‘shops’ and law reform
As regards a legal framework, the judicial act did not alter the way a citizen could obtain an advocate free of charge for legal problems in general. Every bar administered legal aid in the correct manner. Legal aid was focused on internal litigation services such as assistance and court representation. The eligibility criteria differed from local bar to local bar and the advocates were not remunerated by the state for their performances (Gibens, 2002). At the end of the 1960s it was not only the public that was criticising the effects of the legal aid system in general. The supply of legal services to poor people came under pressure as a result of the decreasing number of advocates. During the 1950s and 1960s the private bar feared that the increasing number of young law graduates entering the legal profession would overcrowd the bar, but in fact the opposite took place. Many young advocates left the bar early and as a result of the ‘new’ 1967 Judicial Act elderly advocates joined the judiciary. Those advocates that remained thus lacked the time to fulﬁl their noble task of defending the poorest people. The limited supply of advocates led to a decrease in the number of legal aid cases while the needs and demands of citizens remained the same, or even increased. It is not surprising that people began to criticise advocates who were reluctant to deal with their cases.
The 1960s and 1970s were an era of critical reﬂection on systems of legal aid. Studies from the 1970s drew attention to the existence of obstacles to obtaining access to the law and focused on the shortcomings in the provision of legal aid (Cappelletti et al., 1975; Schuyt et al., 1976; Cappelletti & Garth, 1978). The legal aid movement was the political translation of a concern that vulnerable population groups in particular had unequal access to legal assistance. In Belgium, this resulted in strategies for political action that challenged not only the prevailing balance of power in the realm of the law, but also the capitalist system as a whole (X., 1976). Out of this movement grew law centres and lawyers’ collectives that specialised in legal matters that were sometimes overlooked by the profession. These initiatives in Belgium did not lead to fundamental change to the legal aid system though. In the Netherlands, centres for legal aid perceived themselves as pivotal in providing assistance in legal matters alongside the legal profession (Prakken, 1985). In Belgium movements of law students and social lawyers never succeeded in coordinating their social and legal actions. Some law shops focused their actions on legal advice. Others wished to inﬂuence political behaviour through law reform actions (Gibens, 2006). These movements never became institutionalised. The jurists and lawyers were described as “autonomous non-institutionalised legal services activists” (Hubeau & Parmentier, 1993). Many debates took place but never resulted in a policy capable of guiding politicians towards a decent and modern legal aid system.
5.1.3. The demise of ‘legal activists’
The movement shrunk in Belgium in the course of the 1980s due to many problems such as problems with respect to the content of their actions, organisational problems, shortage of staff and disagreement over corporate planning. It lacked the capacity to centralise their actions although some attempts were made. As a consequence the movement increasingly retreated into niche ﬁelds, such as assistance in matters of housing law provided by tenants’ associations and legal aid services by social centres, organisations that depend in part on volunteerism. From a bird’s eye view, today’s legal aid landscape is highly diverse and fragmented, with service providers ranging from consumer organisations, health funds and trade unions, providing in-depth assistance in speciﬁc ﬁelds, to social organisations such as the General Welfare Centres (GWC) (Centrum Algemeen Welzijnswerk (CAW)), whose approach is often restricted to social work matters with reference to some legal issues like debt and family mediation. Geerts (1977a; 1977b), one of the pioneers of the legal shops, concludes that legal aid did not become a ‘social’ issue and according to Huyse & Sabbe (1997) the lack of political commitment in the legal aid debate was obvious. Criticism by the law shops brought about an adjustment in the organisation of the bureaus of consultation and advice and the remuneration of private practitioners. The law shops tried without success to include other themes in the legal aid debate such as multi-disciplinary cooperation.
In spite of this positive development regarding the poorest people in society in the 60s and 70s, a link to legal aid had still not been established. It was not until 1994 that politicians recognised socio-economic rights as fundamental.
As a consequence the constitution was expanded to include social and economic rights such as the right to employment, social security, health care, decent accommodation, cultural and social fulﬁlment, and social, medical and legal aid. Although former social rights such as employment, social security, health care and so on were already elaborated in many acts and regulations, a legal aid act had not yet been promulgated. A mere two sections of the Judicial Code (Gerechtelijk Wetboek) were related to the organisation of legal aid provided by the private bars. The ﬁrst section stated that local bars should install Bureaus offering legal advice and representation. The second section dated from 1980 and revised the remuneration of advocates. The working group that prepared the amendment of the constitution in the 1990s, discussed the necessity of making a speciﬁc reference to legal aid because many participants interpreted legal aid as a social right which had already been inserted in the amendment to the constitution. Conscious that legal aid in Belgium did not function as it should, the working group decided to insert legal aid verbatim in the constitution (Stroobant, 1995).
Legally this meant that the right to legal aid could no longer be ignored. Legal experts did not criticise the way in which the legal profession had organised legal aid since the independence of Belgium in 1830, but were more inclined to think that it was the government’s task to set up an elaborated legal aid system and an active legal aid policy in order to improve the mobilisation of law by the citizens.
5.1.4. A fresh start for a new era?
In the 1990s the prevalence of the private bars could no longer be ignored, although the 1990s marked a new transformation within their jurisdiction. A crisis in the economy and a high rate of unemployment, even amongst young graduates, forced law graduates to enter the bar. It was better to gain experience than to be unemployed. The low wages and the negligible remuneration for legal aid the trainees received for their performances, led to complaints and even protests. Some politicians were willing to address the problems mentioned previously and several bills were submitted to parliament. One of these members of parliament, the later Minister of Justice, Laurette Onckelinx, proposed a more radical amendment to the legal aid system. The private bars would be relieved of administration. A mixed board, comprising advocates, members of social welfare organisations and client representatives, would be installed and would become responsible for legal aid policy.
These bills never became law however. Only one of the sections of the judicial code was amended in 1995. From then on full advocates were entitled to participate in the legal aid system and were to be remunerated. The implementation of this revised act lasted until 1997. The National Bar Association regarded these bills as an attempt to weaken their position and drew up a new and more elaborate version of a legal aid directive. A few members of parliament transformed this directive into a bill and submitted it to parliament in 1996. At the same time other members of parliament reintroduced the Onckelinx bill. The different bills emphasised the contrasts in parliament between the protagonists of the welfare approach to legal aid and the traditional point of view of the legal profession. Despite the reintroduction of the Onckelinx bill, another bill, inspired by the National Bar Association, became the point of departure for parliamentary discussion. The bill introduced by the supporters of the private bars was also to become the cornerstone of the 1998 Legal Aid Act.
The discussion of legal aid has been heightened by the Dutroux affair (1996). The affair — in which Dutroux, a paedophile, abducted and murdered his victims — caused outrage in Belgium. Almost 300,000 people lined the streets of Brussels in protest at the plight of the victims, largely neglected during the handling of the case. These protests put the Minister of Justice under pressure to improve access to justice. As a consequence the 1998 Legal Aid Act replaced the former sections of the Judicial Code. The former Bureaus for Consultation and Advice were removed and two new bodies set up at district level: the Commission for Legal Aid and the Bureau for Legal Aid. The ﬁrst body was not mentioned in the bill, but was inserted by the Minister of Justice who had been inspired by the French code on legal aid. The role of the Commission, which is composed of members of local bars, members of social welfare organisations, and members of organisations providing legal aid such as consumer organisations and tenant organisations, is to organise consultations of private practitioners giving legal advice, especially in the Houses of Justice. These Houses of Justice have been installed to make justice more accessible to the public. They contain a department for legal advice, staffed by advocates who are remunerated by the Commission. Although the Commission’s task is to support coordination and collaboration between different legal aid centres and organisations, 90% of its budget is allocated to legal advice given by advocates. The Bureau is an extension of the former Bureaus for Consultation and Advice but with two differences: ﬁrst, citizens can appeal to the labour courts when a demand for legal aid is refused, and second, clear eligibility rules are implemented. Remuneration for advocates is still negligible although the budget has been increased since 1998.
Although legal aid has never been regarded as a hot political issue, it did cause the division of the National Bar Association in 2000. From that time on two separate bars came into existence as promulgated by law: the Flemish Bar (Orde van Vlaamse Balies) and its Walloon counterpart (Ordre des barreaux francophone et germanophone). The Flemish Bars accused the Walloon Bars of taking too much advantage of the accredited legal aid budget. Although the Walloons form a third of the Belgian population, they consume about half of the total legal aid budget. The issue of the legal aid budget and the division of the National Bar Association is a sensitive issue in Belgian politics. The present legal aid system is only eligible to the lowest income classes and not middle to low income groups.
The later Minister of Justice, Laurette Onckelincx, suggested introducing general legal expenses insurance for those people who are not eligible to make use of the present legal aid scheme. This proposal did not seem realistic, however, and Onckelincx thus decided to extend the eligibility criteria and increase the allocated budget. This indicates that she is in favour of a status quo in the discussion on legal aid and that new developments in legal aid should no longer be expected. To date the administration of justice does not follow a strict policy line as regards legal aid matters. The Minister of Justice has decided to extend the eligibility criteria without knowing what effect this will have on demand and supply. She increased the budget allocated for advocates providing legal aid without any notion as to whether this budget will prove sufﬁcient. The same can be said of the welfare organisations providing legal advice which are subsidised by the regions. There exists no general data regarding the budget spent on these organisations nor is there general data available about the numbers of people that have consulted these organisations. Some organisations publish annual reports of their activities, but legal advice is usually only a small part of the social tasks they have to deal with. The data is too general and cannot be used for comparisons.
5.1.5. A new State Reform: a new legal aid?
In its coalition agreement of 2011 (Combrink, Peters & Gibens, 2014), the Belgian government announced that it would reform the legal aid supply, and that access to the legal system would therefore be guaranteed. Minister Turtelboom, a that time Minister of Justice ordered an assessment, first of all, to allow for an unequivocal picture of the costs related to second-line legal aid. The University of Liège and the National Institute of Criminalistics and Criminology handed the report ‘Recherche relative au système de rénumération de l’aide juridique de deuxième ligne’ to the Minister of Justice in September 2012 (Schoenaers, Adelaire, Mincke, Nisen, & Reynaert, 2014). This is not the first study on the legal aid system, but it is the first study ordered by the government with a view to reforming the legal aid system. The researchers are of the opinion that a contextual differentiation can be made between the number of points that are collected by lawyers, and the number of cases treated by them. There are various hypotheses on why the number of cases and files has increased dramatically over the past years. It involves increased lawification, both qualitative and quantitative, and therefore the necessity for increased intervention on the part of courts and the judicial system, whereas before, families, church communities and unions dealt with many problems, by addressing the root of the problem. Other hypotheses include the government’s increased presence in the daily life of citizens and the expansion of legal protection, and also the legal position of the citizen’s contribution in increased legal interventions. Hard evidence is not provided. The report delves deeper into the difficulties experienced by those responsible for policy. Special attention is paid to the remuneration of lawyers. Legal aid users are currently assisted by lawyers who earn less than the margin of subsistence. This, even though the implementation of new rules, as a result of the Salduz judgment, places even more pressure on legal aid.
While the researchers concluded that the remuneration in the legal aid system was insufficient, and not even transparent, a memorandum from the core cabinet was leaked in January 2013. The Minister wanted more control on the overconsumption of the legal aid system and the increase in pro deo cases. The Minister of Justice referred, in her memorandum, to the government’s coalition agreement, in particular:
‘The right to legal aid should remain. The government will reform the legal aid system. It will include the ability to investigate the coincidence between legal aid and legal assistance. It will encourage citizens to cover legal aid by means of legal expenses insurance. In addition, it will, in particular to avoid procedural delays, plead for a stricter and more performant monitoring and for a high transparency of the legal aid provision. The legal aid bureaus will, based on the information available from the Ministry of Finance, have to check the income of the persons concerned.’
Although the Minister of Justice pleaded for increased monitoring, her administration did not do anything with the information that was obtained. It therefore appeared to be (hollow) political rhetoric. As long as legal aid remains in the hands of the legal profession, for the most part, she will monitor the quality of the service provision, with regard to the organisation of the system and also the service provision within the legal profession. The Minister also wanted to introduce a system of client contributions, in which case the legal aid client would have to pay € 50 per request and per instance. This was the method, in her opinion, with which the lawyer and the legal aid client should take responsibility, and at the same time, the system should be financed. To keep the budget under control, and to eventually increase remunerations for lawyers, the Minister wanted increased transparency on the number of foreigner cases, criminal cases and youth cases. She herewith hoped to achieve a reduction of 20% in the volume of pro deo cases. She was also in favour of a system of ‘contracting’, with lawfirms, for a certain quota of cases. She proposed, in line with this, that the lawyer should receive an amount of € 2,500 per 100 cases (all expenses included). To conclude, she no longer wanted minor claims to be allowable. The potential clients would, in addition, have to demonstrate their total income, not only their net income, but also their savings, fixed assets and other means of subsistence.
At the end of April 2013, Minister Turtelboom announced a preliminary draft for amendment of the judicial code regarding legal aid. The legal profession responded that it did not agree on these proposals for reform, at all. The debate was narrowed to the legal aid provided by lawyers. A picture was sketched of the legal profession and its clients, in terms of overconsumption, but there was no proof of it. The debate was restricted to second-line legal aid. Not a word was uttered concerning the preliminary or first-line provision, or about ways in which legal conflicts could be avoided. It did not involve any form of conflict settlement or assessment of legal aid in the entirety of the legal system, either. The debate was therefore a phoney debate for short term cutbacks. The draft never became law due to new elections. But in the following government the discussion was retaken.
Since the sixth State Reform of 2014, discussion of a Belgian legal aid system has become a more difficult challenge, as it is no longer the responsibility of the federal state. First-line legal aid provided by advocates, which encompasses the provision of legal information and initial, rather limited legal advice and referral, is now the jurisdiction of the French-speaking and Dutch-speaking communities. New legislation has been promulgated in Wallonia and Flanders. Second-line legal aid for people who cannot afford a private lawyer to represent them in court still remains the authority of the federal state.
In his policy statement of 17 November 2014, the new Minister of Justice announced a reform of the system, by reducing the legal aid budget by 10% and especially the fee nomenclature. The Minister of Justice, Koen Geens (CD&V Christian Democrats), had planned to double the client’s own contribution and to maintain a closed budget envelope. The Flemish Bar Association and its French-speaking counterpart had elaborated a well-balanced nomenclature, taking into account an hourly rate of €75. Instead, the Minister adopted this nomenclature within the system of a closed budget, which means that some legal areas, such as immigration law, will be underfunded. The lawyers were not willing to accept this move and protested on 1 June 2016 and new protest actions were also organized. According to the private lawyers, this Act is yet another attempt to impede access to justice, as legal costs had increased in 2007 and a VAT of 21% on advocates’ fees was introduced in 2014. What the private lawyers have feared, has become reality. Since September 2016, it has become harder for citizens to access legal aid. The legal aid Reform Act of 2016 introduced new eligibility criteria.
In May 2016, in order to cope with the increasing number of cases and the associated costs, and in order to be able to guarantee lawyers correct remuneration, a number of members of parliament submitted a bill to set up a fund for second-line legal aid, which the Minister had also proposed in his policy statement. Anyone sentenced to a criminal fine or any other penalty will be required to pay a fixed contribution to the fund. This contribution obligation also applies in the event of an amicable settlement. After several attempts to submit the bill and after several parliamentary debates, a Budget Fund for second-line legal aid was set up by the Act of 19 March 2017. As of 1 May 2017, anyone who is convicted by criminal law will pay 20 euros to the Fund. Each plaintiff in civil cases pays the same sum, but it is the judge who finally decides who pays the sum. If the plaintiff is found to be in the right, he can recover the amount from the other party. The Federal Public Service of Finance is responsible for recovery in accordance with the rules applicable to the recovery of criminal fines. The Fund is managed by the Federal Public Service of Justice. Each year, in January, the Minister of Justice informs the Flemish Bar Association (Orde van Vlaamse Baleis/OVB) and the Ordre des Barreaux Francophones et Germanophones (OBFG) of the total amount of revenue acquired by the Fund during the year.
A final and very important change related to nomenclature/classification. Specifically, this concerned the allocation of points to when determining the lawyer’s compensation. Due to a reduction in resources, the value of a point has never been stable and differed every year. While the Bar Associations themselves proposed a new nomenclature based on an hourly rate of €75, the Minister adopted the nomenclature without assuring the sufficient allocation budget. The Minister stated that he supports a €75 hourly rate, but cannot promise anything. The Bar Associations have expressed their frustration with this position.
Paradoxically, the Minister regarded the discussion about a fixed or open budget as purely semantic, while also referring to the permanent increase in the allocation budgets over recent years. In contrast to his statement, however, the value of a point remained the same over the last period, or even decreased till 2015. Despite the scepticism of the bar associations towards the Minister, it appears that the hourly rate of 75 € per point has been achieved since the reform.
5.2. Legislative framework for legal aid
The right to be assisted by a defender is part of the fundamental right to a fair trial. Article 6(3)(c) ECHR and Article 14(3)(d) BUPO provide that, in addition to the right to defend oneself, every person in criminal proceedings has the right to be assisted by legal counsel of his/her choice or, if the person does not have sufficient resources, to be assisted by another legal counsellor. On the basis of Article 6 ECHR, the Court of Human Rights has held in several cases that this assistance also applies in civil matters. Numerous laws make the assistance of a lawyer mandatory or provide for the ex officio appointment of a lawyer. These two aspects – defence and legal assistance for the underprivileged on the one hand, and the ex officio addition of lawyers on the other – were regulated until 1 September 1999 by articles 455 and 455bis of the Dutch Civil Code (Gibens, 2008).
By the Act of 23 November 1998 the whole landscape of what will henceforth be called legal aid was redrawn to a large extent. This law added a new book (book IIIbis) to the Judicial Code. Articles 455 and 455bis were abolished.
These regulations make a fundamental distinction between ‘first-line legal aid’ and ‘second-line legal aid’. With the sixth State Reform, first-line legal aid was allocated to the Communities and enshrined in Article 5, § 1, II, 8 of the Special Act on Institutional Reform as a personal matter.
In the meantime, the French Community has given shape to first-line legal aid in the Décret relatif à l’agrément et au subventionnement des partenaires apportant de l’aide aux justiciable. The Flemish Community has recently adopted a new act on first-line legal aid decreet houdende de justitiehuizen en de juridische eerstelijnsbijstand. Second-line legal aid remains a residual competence of the federal authority.
First-line legal aid is provided in the form of practical information, legal advice or referral to a specialised body or organisation. Second-line legal aid, on the other hand, is assistance given to a natural person in the form of detailed legal advice, assistance in the context of a procedure or assistance with litigation, including representation within the meaning of article 728 of the Judicial Code.
Book IIIbis of the Judicial Code establishes institutions, the Commissions of Legal Aid and the Bureau for Legal Aid and lays down the procedures and general conditions for obtaining second-line legal aid.
5.3. Institutional framework for legal aid
A judicare scheme perfectly suits the policy goals of the legal profession. It is geared towards remunerating advocates for representing clients before courts. The judicare system focuses predominantly on the poorest citizens. For other clients, advocates are not bound to a legal aid system that generates less income. While private lawyers are bound to the legal aid system when representing clients before court (inside litigation services), profit and non-profit organisations are legally allowed to inform and advice clients (outside litigation services) (Gibens, 2006; Regan, 1999). As Belgium is a federal state, legal advice and minor legal assistance are also provided by welfare organisations that are subsidised by the regional governments. The Belgian legal profession therefore does not have a monopoly on legal advice. The 1998 Legal Aid Act particularly emphasises litigation services such as legal assistance and court representation. Of course, there is little doubt that the legal profession has a large platform from which to defend traditional perceptions of its professionalism, especially in legal aid matters. Until the enactment in 2019 of new legal aid legislation on first line legal aid, a direct connection had never been made between legal aid provided by advocates and welfare provisions.
5.3.1. First Line Legal Aid
As explained above we have to make a distinction between the schemes of first line legal aid from before and after the recent legislative reform. This reform is often referred to in Belgium as the ‘sixth State Reform’ which allocated first line legal aid to the Flemish and French Communities.
18.104.22.168. Before the 6th State Reform
In every judicial district, a Commission of Legal Aid is entrusted with the different aspects of frontline and second-line legal aid. Under Article 508/2 §3 of the previous Judicial Code, one half of the Commission of Legal Aid was composed of lawyers assigned by the Bar Association. The other half was composed of representatives from Public Centres for Social Welfare (PCSW) (Openbare Centra voor Algemeen Welzijnswerk (OCMW), General Welfare Centres (GWC) (Centra voor Algemeen Welzijnswerk (CAW) and the various organisations providing legal aid within the relevant judicial district. The president of the Bar Association appointed the president of the Commission of Legal Aid. Generally, it was the president of the Commission who nominated the lawyers. This selection was more or less informal: a letter was written to all lawyers, asking whether or not they wished to participate in the Commission of Legal Aid, with the president having the final decision-making power.
The selection procedure for the representatives of the social organisations was strictly regulated by the Royal Decree of 20 December 1999. When there was a position open on the Commission, all public centres for social welfare (OCMW/CPAS), centres for general welfare and the various organisations providing legal aid within the judicial district were asked whether or not they wanted to propose a member. The Commission decided which candidates were appointed.
Although the Commissions of Legal Aid were composed of lawyers and representatives of social organisations and other organisations that provide legal aid, private lawyers had the upper hand for a number of reasons. Firstly, in some Commissions, lawyers were simply in the majority. This was especially the case if a social organisation chose a private lawyer as its representative. For example, there was a Commission of Legal Aid where the Tenant Union had chosen a private lawyer as its representative. Secondly, most Commission members restricted their involvement to participation in the Commission’s meetings. They spent little time on the formulation of goals and the development of policy lines. Consequently, it was usually the president of the Commission, a private lawyer, who was responsible for its general policy (Gibens 2018).
The legislature stated that the Commissions of Legal Aid should: (1) provide frontline legal aid by lawyers, and (2) streamline the already available legal aid provided by social organisations or other organisations that provide legal aid. However in practice, Commissions of Legal Aid usually focused on the first aspect. The field of legal aid remained diffuse and vague, with each organisation following its own policy line and specialisation, often unaware of the legal aid provided by others in the field. Many of the respondents referred to a sense of competition between representatives of social organisations and private lawyers. This might be explained by ignorance of the services that others provided.
The Commissions of Legal Aid were largely autonomous in relation to the policy they developed. The legislature had only provided limited information regarding the goals of the Commissions. The legislature had not provided any guidance about how these goals should be achieved, or how the success of a Commission’s daily work should be measured. Thus, it was left up to the local bar to shape and implement the Commissions’ policies. The government had never exercised control over how the Commissions of Legal Aid determined their policy lines, and whether or not the different Commissions of Legal Aid had achieved their goals. Every Commission published an annual report for the Minister of Justice, but these reports have never led to political intervention, nor have any remarks or questions ever been asked by the Minister of Justice of the various Commissions. Consequently, every Commission has developed its own routine, largely without external oversight.
22.214.171.124. Implications of the Sixth State Reform
A. The Flemish first line legal aid act of 2019
The Commissions of Legal Aid were founded in order to organise the entire field of first line of frontline legal aid. However, due to a lack of policy this goal was not achieved. On the contrary, Commissions of Legal Aid have mainly focused on frontline legal aid provided by private lawyers. The Commissions did not make any significant improvements to the diffuse and often parallel area of frontline legal aid provided by different social organisations and other legal aid organisations. The Sixth State Reform could potentially improve this situation, because frontline legal aid has been transferred from the federal state to the communities. This includes the organisation of the Commissions of Legal Aid.
In Flanders, first line legal aid was regarded as an integral function of the Department of Welfare on community level between 2014-2019. In that period the objectives of the new legal aid act for front/first line legal aid were widely discussed over in the Flemish parliament. Following the installation of the new Flemish government in 2019, a new department of Justice was established. Frontline legal aid now is the competence of this new department, and it is up to the new Flemish Minister of Justice to adopt the implementing decrees that were initiated by the former government. The implementation of these decrees has not yet been completed.
It was the former Flemish Minister of Welfare who considered frontline legal aid as a preventive measure. He argued that early intervention and informing or advising citizens in an early stage might prevent further escalation of a conflict. He opted for a welfare approach, which will lead to significant changes to the policy of the Commissions of Legal Aid. Under a welfare approach, the focus will most likely shift from a legal point of view to a more holistic approach. A holistic approach is not limited to pure legal information or simple advice. It also aims to detect social issues, so that clients can be referred to alternative dispute resolution and other social services – rather than directing them to private lawyers (Vandeurzen, 2017). The Minister of Welfare also wanted to impose quality standards and guidelines on how the Commissions of Legal Aid perform their role (Gibens, 2015; Vandeurzen, 2015). Finally, the Minister focused on a friendly client engagement, with the aim of facilitating effective referrals and multidisciplinary cooperation (Vandeurzen, 2016). To achieve this cooperation, the Minister linked first line legal aid to the concept of ‘Integrated-Rights Practice’ (IRP). IRP aims to guarantee social rights by creating local interorganisational networks that foster generalist, pro-active, outreaching, strengths-based and participative social work interventions. The IRP implies a collaboration between the PCSW, private welfare organisations and social services of the social security mutualities so that everyone (especially the most vulnerable) can access social assistance more quickly within an acceptable timeframe (Boost, Elloukmani, Hermans & Raeymaeckers, 2018). This integrated approach demands the kind of interdisciplinary methods which the Commissions of Legal Aid currently lack.
The act of 26th of April 2019 concerning the courts of justice and first line legal aid (houdende de justitiehuizen en de juridische eerstelijnsbijstand) legally anchors the policy lines set out by the former Minister of Welfare. The aim is to guarantee access to justice for every citizen, but with specific attention to the most vulnerable people. In concrete terms, the new act is focused less on social, cultural or financial thresholds and instead aims to guarantee access to legal information in an adequate, neutral, high-quality and accessible manner. As mentioned before, the concept of first line legal aid is linked to IRP. This means that first line legal aid should be practiced in with reference to IRP. It should lead to collaboration that results in mutual referrals, guidance and sharing of knowledge.
This collaborative way of cooperating is also reflected in the organisational structure of the Commissions at the district level. Although 6 Flemish judicial districts have been dissolved since the reform of the judicial districts, there remain 15 Commissions in operation (which corresponds to the old number of judicial districts). A total of 15 Commissions are provided for under the legislation (article 39 § 3 decree). Their scope is clearly defined, and their services must be provided in every care region (zorgregio). The composition of the Commissions must also be more diverse, as a consequence of private lawyers historically dominating their make-up. The new legislation specifies set numbers of representatives from different groups: lawyers (4), key actors from the IRP (4), representatives of organisations working with vulnerable groups (2) and representatives of organisations that also provide legal aid (2). The first line legal aid act also introduces the concepts of user perspective and the need for client participation in the board of the Commissions (Driessens, Lyssens-Danneboom & Depauw, 2019).
The activities of the Commissions are well described under the new legislation, and require far-reaching professionalisation:
- An accessible and high-quality range of first line legal aid must be provided. This necessitates publicity campaigns, proactiveness via cooperation with the local interregional networks (IRP) and the use of specific methods of participation (see article 4 § 2 draft decree BVR).
- The selection of competent private lawyers for the provision of first-line legal aid to a high standard (article 28 § 1, 2° act, in conjunction with article 28 § 2 act). The conditions for providing first-line legal aid suggest that a lawyer should:
(a) give advice in a way that is understandable to the user (in other words, using plain language);
(b) have basic knowledge of social work and social mapping;
(c) have knowledge of the lifestyle and circumstances of the specific target groups;
(d) guarantee neutrality and be independent; and
(e) attend training sessions provided by the Commissions.
- Using a holistic approach to improve collaboration and coordination between legal aid providers and social-legal providers in Commission districts.
- Concluding agreements with other organisations in order to effect referrals on a regular basis and in accordance with agreed conditions.
The act sets out some important basic principles. Firstly, access should be guaranteed for everyone without discrimination, with respect for ideological, philosophical and religious convictions. First line legal aid should also be accessible to people with disabilities. Secondly, this access must also be of a high quality. The act refers to 6 Bs in Dutch: bekend, bereikbaar, beschikbaar, bruikbaar, begrijpbaar en betrouwbaar (which can be translated as: known, accessible, available, usable, understandable and reliable). These are used as quality measures.
The first line legal aid functions independently of second line legal aid. The new style Commissions are obliged to draw up a multi-year plan. In this document Commissions must elaborate how they will achieve their goals over a five-year period and in accordance with the basic principles. The Flemish public administration supervises the Commissions.
At first glance, the new scheme appears straightforward. There is a trend towards a more harmonious relationship between the legal and the social dimensions. There is a clear focus on an integrated and welfare-oriented approach that links legal first line aid to social assistance and alternative dispute resolution. However, a number of problematic issues still remain.
A first issue is the holistic approach, which requires planning and consultation between legal and non-legal services (Forell & Gray, 2009). The second challenge is the fact that providing legal aid on the frontline now requires specific personal and professional competencies, certainly if a lawyer wants to act proactively. The legal counsellor must be approachable and respectful, he has to be proficient in plain language and in the skill of directing people to the right service. A final issue is the necessity of working with digital tools to deliver documents that help the client to remember what has been advised. Such tools should be written in plain language and contain visual legal designs. Such a digital tool does exist in Flanders (www.helderrecht.be) and also in Wallonia (www.droitsquotidiens.be). A continuous monitoring of Commission activities in order to improve frontline legal aid takes more than just a legislative statement.
Although the new act aims to innovate and improve access to justice, it is mainly supply-driven. Although methods of participation within the Commissions themselves have been promoted, there is no clear view on the day-to-day problems of citizens. Are the Commissions sufficiently aware of the problems that people encounter on a daily basis? Do the Commissions have adequate data about the legal consciousness of general public and why they do not proactively access legal information? It goes without saying that this kind of knowledge is crucial for the proper development of policy.
B. The Walloon First line legal aid act of 2016
In Wallonia, legislative action has also been undertaken to reform frontline legal aid. On 12 October 2016, the Decree Concerning the Accreditation and Subsidy of the Partners for Legal Aid was promulgated (Décret relative à l‟agrément et au subventionnement des partenaires apportant de l‟aide aux justiciables). This Decree covers all aspects of legal aid and expresses two fundamental principles. Firstly, legal aid should be organized with regard to the demand side. The citizen, as a consumer of frontline legal aid, should be served as well as is possible. This means a shift in the approach to legal aid, which to date has been primarily focused on the supply side: Houses of Justice provide information primarily about their own operations, while lawyers hold consultations focusing on legal aspects of a conflict situation, but rarely referring to social aid.
To create an integrated system of frontline legal aid, the Decree established three consultative bodies: one overarching Commission (la Commission communautaire des Partenariats) and a Commission d‟arrondissement des Partenariats in each judicial district. Every district Commission has three subcommittees focusing on specific topics (les Commissions thématiques des Partenariats): the offender, the victim and every other citizen who does not fall within the first two categories. The second fundamental principle concerns the funding of legal aid schemes. The organisations will not be funded according to the number of people employed, but according to the extent that the organisation reaches the goal of providing effective legal aid. This implies that the government must establish methods and standards to measure the quality of the service delivered.
However, the new Decree does not encompass frontline legal aid provided by the Commissions of Legal Aid. Wallonia has opted to maintain the current role of the Commissions of Legal Aid, but restrict their competences to the organisation of consultation hours in the framework of frontline legal aid. This means that the Commission of Legal Aid is no longer responsible for streamlining the entire landscape of frontline legal aid. As such, the French-speaking community has changed the legislation in order to fit daily practice.
Since the Sixth State Reform, both the Flemish and the French-speaking communities have taken steps to reform frontline legal aid. Lawyers are wary of the increasing involvement of the state authorities in the organisation of frontline legal aid, while others are already taking initiatives to integrate frontline legal aid provided by lawyers and socio-legal aid. One example is the research project initiated by the Commission of Legal Aid in Leuven (see 5.9).
5.3.2. Second Line Legal aid
While first line legal aid is open to every citizen, eligibility for second line legal aid depends on a means and merits test. Those who are not entitled to second line legal aid must pay for a lawyer. If they have legal expenses insurance, the costs may be covered by their policy. Requests for free legal aid must be sent to the Bureau for Legal Aid (BLA) (Bureau voor Juridische Bijstand (BLA)), one of which is provided in every legal district under the auspices of the local bar association. Since 2005, the federal government has subsidised legal aid bureaux costs. Each bureau is organised independently and is free to determine its own policy. There are three ways to apply for legal aid. One can ask a private lawyer to submit a request to a legal aid bureau on one’s behalf, one may be referred by a first line organisation, or one can file a request by visiting a bureau in person. In special areas such as criminal law cases, the bureau may grant legal aid at the request of the investigating magistrate or the criminal court.
Since the Salduz case and the passing of the Salduz act of 1 January 2012, the presence of a lawyer during police interrogations has become common practice. A special duty counsel scheme has been set up for the representation of suspects appearing before the investigating magistrate. The Flemish Bar Association has provided software to facilitate the presence of a lawyer during the initial police interrogation. The system requires police to call a designated telephone number, where they are informed of which lawyer will attend. The operator subsequently summons the lawyer.
Article 508 / 7 of the Judicial Code (Jud. C.) requires the council of each Bar Association to create a Bureau for Legal Aid (BLA) “according to the rules and conditions it determines”. The legal aid bureau has no legal personality, and is a part of the Bar Association (which is a legal entity). Each Bar Association Council is responsible for organising the legal aid bureau. There are no specific legal requirements for organising the bureau. One of the tasks legally required of the bureau is to organise “guard duty”.
Legal aid is provided exclusively by private lawyers. In the first place, lawyers are free to decide whether or not they want to provide legal aid. The Bar Association draws up a list of lawyers who are willing to provide legal aid services (partially or in full). Secondly, if there are not enough voluntary private lawyers then the Bar Association may (if necessary) compulsorily register lawyers for special areas. The list of lawyers specifies each lawyer’s the preferred type of matters . If a lawyer cannot document their abilities to provide legal aid in special areas, the lawyer may state that they are willing to undertake training organised by the Bar Council, by the Flemish Bar Association and by the Ordre des barreaux francophones et germanophones (Article 508/7 Jud. C.). If a lawyer is refused registration onto the legal aid list, then they can appeal this decision (Article 432bis Jud. C.) to the Disciplinary Board of Appeal. The local Bar Association supervises the effectiveness and quality of the services provided by lawyers, as well as the frequency of lawyers’ appointment and whether legal aid has been terminated.
If a lawyer does not meet the required standards the Bar Council may order the following measures. Firstly, it can determine some conditions the lawyer has to fulfil in order to remain registered on the list. Secondly, it can suspend the registration of the lawyer on the list for a period of eight days to three years. Thirdly the Council may decide to strike the lawyer from the list. The suspension has no effect on ongoing appointments made by the legal aid bureau. In the event of non-compliance with the conditions imposed by the Bar Council Association, the chairman of the Bar Association can summons the lawyer to a hearing before the Bar Council. If a lawyer is removed from the list, he will be discharged from handling his case files unless the Council decides otherwise . The lawyer can only request re-registration after a period of 5 years. In the event of omission, the bureau for legal aid will appoint a new lawyer for the client. The removed lawyer can lodge an appeal to the Disciplinary Board of Appeal (Article 432bis Jud. C. and art. 508/8 Jud. C.).
Second line legal aid is provided partially or fully free of charge to people who have insufficient means and to certain categories of people. Legal aid is not granted if the applicant can rely on the third party assistance (eg legal expense insurance). The Royal Decree of December 18th 2003 determines the subsistence threshold, the supporting documents to be submitted with applications, and the categories of people who are deemed by default to have insufficient means (Article 508/13 Jud. Code). The Royal Decree of 18 December 2003 also provides that the legal aid bureau can request all relevant information from both the applicant and third parties to prove subsistence, with the exception of minors (as discussed previously).
In the following paragraphs (5.8. and 5.9) we will elaborate in detail the functioning of the Bureau for Legal Aid.
5.4. Legal aid budget
5.4.1. General framework
The budget for first-line legal aid provided by private lawyers is rather small. It amounts to 1.239.000 € in 2019 for the Commissions of Legal Aid in Flanders.
In Belgium the budget for second-line legal aid over the last ten years, except for 2011-12, has been increased till the amount of 77.923.000 €. About 44% of the attorneys in private practice in Flanders handled one or more legal aid cases.
Every case stands for a certain amount of “points”. The average value of a point was in 2012-2013 25, 76 €. Over the last ten years the amount of cases dealt with by private lawyers in Flanders increased form 99 008 in 2003-04 till 220 238 in 2012-13. Figures from the Walloon Bar Association are hardly available.
In 2017 a Budget Fund for second-line legal aid was set up by the Act of 19 March 2017. As of 1 May 2017, anyone who is convicted by criminal law will pay 20 euros to the Fund. Each plaintiff in civil cases pays the same sum, but it is the judge who finally decides who pays the sum. If the plaintiff is found to be in the right, he can recover the amount from the other party. There are also a few exceptions for civil cases. The contributions do not have to be paid by people benefiting from second-line legal aid or legal aid. It does not apply to recoveries under the Occupational Accidents Act or the Occupational Disease Prevention Act, it does not apply to claims brought by or against socially insured persons personally, it does not apply to claims under the collective debt settlement procedure and it does not apply in certain cases where the public prosecutor initiates a claim.
The Federal Public Service of Finance is responsible for recovery in accordance with the rules applicable to the recovery of criminal fines. The Fund is managed by the Federal Public Service of Justice. Each year, in January, the Minister of Justice informs the Order of Flemish Bars and the Ordre des Barreaux Francophones et Germanophones of the total amount of revenue acquired by the Fund during the year.
In addition, while the previous legislation offered no real opportunity to reconsider the private lawyer’s level of compensation in the case of a successful intervention, the new 2016 Act allows the private lawyer to request an re-assessment by the legal aid office. The underlying principle is: if the resources had been available at the time of the application, the client would not have been granted legal aid. There are some limits regarding the amount that can be requested.
Examples of types of cases and the corresponding fixed number of paid working hours:
Renumeration Principle of the remuneration codes applied since 2016.
The appointed lawyer draws up a final report, via the BLA module (OVB) or the FRONT interface (OBFG) for example, at the time when:
– all the performances of the procedure for which he was appointed, is terminated;
– he is informed by the President of the BLA about being replaced;
– he is succeeded (For OVB: see follow-up codex deontology);
– he leaves the bar;
– the second-line legal aid has been withdrawn.
The final reports must be submitted electronically to the BLA in each case and before the time annually set by the BLA. Failing this, the reports shall not be taken into account for the award of points for the past judicial year (probably the report can be controlled in the next judicial year).
No points shall be granted to the private lawyer if his final report is submitted more than 5 year after the last useful performance that he has carried out.
Points are awarded per performance, based on of the nomenclature annexed to the Ministerial decree of 19 July 2016, irrespective of the date of the achievements.
2.1.7 Divorce cases
Divorce case base: 4
To draw up a writ of summons: 2+
To draw conclusions (written argumentations): 3+
Alimony dispute based on the fault principle: 5+
Alimony dispute without fault principle: 3+
Additional court session (other than a postponement):2+
The electronic report in the BLA module/Front consists of a complete and detailed overview of the performance delivered as accurately as possible. All documents that demonstrate the performances, shall be added.
The lawyer notes the following amounts:
– commission set by the BLA
– litigation fee collected
– Partially collected compensation the lawyer also notes any amounts
If the lawyer believes that his performance, due to circumstances, exceeded the ‘hourly’ nomenclature by more than 100 %, he may request for an increase in points. To this end, the lawyer must submit to the president of the BLA a reasoned application wherein he describes the circumstances which he justifies by documents in order to be entitled to a higher amount of points.
On the contrary the bureau for legal aid may decide to reduce the number of points requested. For example, the BLA may reduce the points if it is convinced that the written procedural documents are extremely brief, or are barely motivated, the arguments–elaborated in detail – turn out to be a takeover of which was invoked in a similar case so that almost no work had to be done…The number of points for an appointment can also be reduced when the case was not completely carried out.
The Minister of Justice may order an inspection of the points awarded by the bureaus for legal aid, according to the modalities he determined. In practice, these controls are organized by the OBFG and the OVB. Every year the Flemish Bar Association (OVB) and its French counterpart (OBFG) organize a “cross-control”. It means that the Flemish speaking local BLA’s control the French speaking and vice versa. It gives the opportunity to check by way of sample (approximately 50 to 100 files in every local bar) if the BLA’s organize legal aid in the same way.
Checks are generally carried out every year from 1 October to 31 January. Files will be selected from all preferred subjects. The control relates to the conditions for the benefit of legal aid (research of evidence of the situation or income), on the effectiveness of the performance (examination of the documents annexed to the final reports) and the points awarded.
A report shall be submitted to the Minister, who may decide to carry out additional checks. In case of discussions that cannot be resolved by mutual agreement this file or case may be submitted to an arbitration.
If we look at the figures extracted from the report sent to the Minister we see an increase of the total amount of appointments and also an increase of the total amounts of points, but a small decrease in the points awarded to the private lawyers in 2018-19. Probably many lawyers who are dealing with a few cases are not willing to report to the bureau for legal aid (BLA). Another explanation may be that the cases are not yet finished and that the effect will be visible within a few years.
Chart 08. Total amount of appointments and points in Flanders
Source: Flemish Bar Association (OVB) processed by Gibens
Most appointments and the rewarding of these cases have been shown in the next table. The cases that bring up the most points are criminal cases, family cases, juveniles and refugee cases.
Chart 09. Total amount of points per case over period of 2016-2019
Source: Flemish Bar Association (OVB) processed by Gibens
5.4.2. Budget and Spend
Discussion in Belgium revolves around the relatively low amount of money Belgium spends on legal aid. Expenditure per capita is indeed low compared to the other countries in this research. Roughly 10-20% of the Belgian population is theoretically eligible for legal aid. Discussion over budget cuts and expansion of legal aid appear to stifle innovation, unless innovations are proven cost-savers. It can be challenging to find cost-reducing innovations, because expenditure in Belgium is already relatively low. One of the most controversial reform proposals is the introduction of an administrative fee for all litigants, including legal aid beneficiaries. The government also proposed that trainee-lawyers will be obliged to take on at least 5 legal aid (pro bono) cases, but this has been cancelled after criticism from the Belgian Council of State (Raad van State).
Lawyers and their remuneration system are another part of the discussion. The discussion is similar to the one in France. Belgian lawyers only know at the end of the year how much money they will receive for the legal aid cases they worked on. They are unhappy with the average amount of money they receive for their work. They claim they do not receive enough compensation and do not have enough time to do the necessary administrative work. As a consequence, the quality of their services is said to suffer. From 2010 onwards, the federal government compensates lawyers if the average amount of money they receive at the end of the year is considered too low. In 2012, the Salduz Act reformed legal aid for pre-trial detention cases, which is a budgetary problem for the government, but creates work for lawyers. Since the reform of 2016 the nomenclature has been changed. Each point corresponds to one hour. Since 2016 the value for one point is 75 € and from 2017 75,09 €.
Thanks to the introduction of the new fund, we can see that this fund is increasingly being filled and that the share of the government budget is decreasing. The total budget has increased slightly in the meantime.
Chart 10. Budget for the awarding of private lawyers since the reform of 2016 on second line legal aid
|Judicial year||Budget MoJ||Fund||Total budget|
Source: Flemish Bar Association
Chart 11. Budget for the working costs of the bureaus for legal aid
|Judicial year||Budget MoJ||Fund||Total budget|
Source: Flemish Bar Association
Chart 12. Funding second line legal aid after the reform of 2016
Source: Flemish Bar Association (OVB) processed by Gibens
5.5. Legal aid providers
Studies have revealed that people have different legal competences, skills and knowledge and opinions about law. People are not always aware of their legal problems or do not identify it as such. There are persons who are more self-reliant and can find their way to legal help or their way to the solution of their legal problem(s). They are able to reach the available services that will react on them. On the other hand there are people that are hard to reach. They will not find the way to legal help by themselves and they need more support. Here services have to look for and have to search for these people by using special methods, as outreach (Gibens 2018).
There are different entrances for seeking help. These entrances provide different kinds of services, in that way that as in medicine we can identify different lines in providing legal aid. The zero line are friends and family that have experienced similar problems or have the skills and knowledge to help people to indicate the problem, to give their experience and to refer them to services that can help them. On the first line we find services that can give information, advice or refer clients to a more specialized service. Between the first line and the second line we situate assistance and mediation, these methods can contribute to prevent that a problem or conflict escalates or can be helpful to resolve the problem or conflict. To go to court or representation are special features for the second line. And we categorize these no longer under prevention but as like in medicine we regard them as curative response to the problem or conflict. These different lines mean also different access points. We make a distinction between preventive access points to (legal) services: social organisations and law organisations and curative access points to legal services : mostly a legal professional.
And last but not least social and legal services to the public have to meet certain standards and quality measurements. In Dutch we call these standards the 5B’s because the terms we use all begin with the letter B. Legal services whether they are preventive or curative should be accessible, affordable, available, useful and simple (plain language) (bereikbaar, beschikbaar, bruikbaar, begrijpbaar en betrouwbaar).
If we put all these features in one design, you get the following framework.
Chart 13. Legal aid framework
Source: Gibens 2018
There are no specific requirements to provide first line legal aid. Only when a case has to be pleaded before a court, one may hire a private lawyer. And if one does not have sufficient income, a legal aid private lawyer will be appointed. This entails that there are many legal services providers acting as experts to deal with problematic situations, we have defined them as ‘social legal aid’ (Van Houtte et al., 1996).
The essential characteristics of social-legal aid are: the focus on legal problematic situations of the most vulnerable groups in society; free or almost free services (no market driven pricing); client-centred approach; frontline services (so called “first line legal aid”); mostly set up by private initiatives; being an aspect of a broader and larger service; dealing with individual problems by means of a curative handling, but tackling collective problems also, with attention for preventive actions, sometimes organized by the public sector; sometimes open for everyone, sometimes for specific target groups.
We will sum up the most important social-legal aid organisations and their features.
A. Public Centre for Social Welfare (PCSW)
Within the framework of social-legal services the Public Centres for Social Welfare offer universal assistance. They provide general services to everyone, material and medical services to foreigners and have custody of the minors entrusted to the PCSW. Article 60 of the aforementioned PCSW-Act is the legal ground for providing legal assistance. This assistance may be provided by a private lawyer (bar model) or by an employed lawyer (staff model). The service is free and accessible to everyone. It is basically free of charge. Since the Legal Aid Act 1998 also finances private lawyers for the provision of first line legal assistance, many PCSWs, e.g. the Antwerp PCSW, have reduced their own first-line legal assistance (staff model) in favor of the bar model. PCSWs also provide debt mediation and are often appointed by the court within the framework of collective debt settlement. Besides general services, PCSWs provide debt mediation and debt settlement as a specific specialization which has also been taken up by the legal professionals, such as private lawyers, bailiffs and notaries.
B. General Welfare Centre (GWC)
Among the organisations that provide universal services, the General Welfare Centres (GWC) in Flanders – in Wallonia welfare centres are fragmented in smaller units in accordance to specific topics or target groups- focus on the entire population, with special attention to vulnerable groups. They are organised regionally. They are separate legal entities. The decree on general welfare provides for a wide range of services, including therefore legal ones. They are not only answering simple legal questions, but also multiple questions can be the subject of counselling as in the context of collective debt settlement and debt mediation. GWCs often exert a mediating role, such as in family conflicts or in the context of divorce mediation. They focus on more problem-related legal assistance as they are provided by other organisations as the Centres for Life and Health Questions (Centrum voor Levens- en Gezinsvragen) and Houses of Justice (Justitiehuizen) that focus on people in detention (Hubeau & Parmentier 2006). Basically they are freely accessible to everyone, free of charge, although a contribution may be charged in certain cases.
C. Law Shops
Law shops can also be categorized under the heading of general services. Originally grown from the student movements of the 1960s and 1970s, they have professionalized today. They operate regionally. However, it is difficult to ascertain the number of litigants enlisting their services and how they are helped or referred to. Th e service is easily accessible, but not for free. A contribution has to be paid per consultation.
Tenants’ Associations Tenants’ unions provide categorical legal assistance. They provide information and advice on rent issues. The service is not for free and membership is required.
As is the case with the tenants’ associations, legal advice and assistance is categorical and requires membership. Unions provide legal assistance in both: not only a first line where they give advice and information and possibly offer services such as writing letters, mediation and referrals to other services, but also second-line services such as representing the members in the Labour Court (exception of the monopoly of representation by the private bar).
E. Consumer Organisations
Many consumer organisations provide legal services that are also categorical. Only information on consumer issues can be obtained. Information can only be obtained by members of the consumer organisations as is the case with Test Aankoop (Test Purchase) or the Onderzoeks- en Informatiecentrum van de Verbruikersorganisaties (OIVO) (Research and Information Centre for Consumer Organisations). This organisation tries to represent the interests of consumers on a structural level by research and advocacy.
F. Immigration Organisations
The socio-legal services for asylum seekers originate from GWCs (GWCs) as they were faced with the growing number of asylum seekers with socio-legal problems. There are federal and local services such as integration centres that focus on providing legal services to foreigners. This service is usually free and categorical.
G. Children’s Commissioner
A recent addition is the Children’s Commissioner that provides information and advice regarding minors. Th e commissioner’s office has created a dedicated website where children can also interactively ask the commissioner for advice.
H. Private Lawyers?
As mentioned before, private lawyers have been positioning themselves on the market of first line legal aid. Social legal aid is different from legal first line Legal aid. Since the Act of November 23rd 1998 on legal aid, first line legal aid is defined as legal assistance via practical information, simple legal advice or referral to a specialized instance (Article 508/1, 1° Judicial Code). The first line legal aid is organized by the Commissions of Legal Aid (see supra 5.4.).
In 2011 (Hubeau, Goorden & Mertens 2011), research was conducted by the University of Antwerp (Faculty of Law) and some university colleges in Flanders, who had a bachelor in Social Work . The report dealt with legal aid, delivered by consumers’ organisations, PCSW’s (and their legal aid services), GWC’s, ombudsman, trade unions, health services, advice centres for migrants, tenant organisations, “houses of justice”, law shops, advice centres for youth and students, and children’s rights organisations. Some general conclusions could be made :
(i) Social legal aid has been professionalised. Historically, just a few organisations delivered social legal aid in the 1960s and 1970s, including consumers’ organisations, trade unions and health centres, and a few organisations for specific target groups. Nowadays, there is a larger number of organisations and their work is professionalised.
Examples: GWC’s and tenant organisations (from volunteering to professionals).
(ii) Social legal aid is often organised in a larger context, e.g. in Centres for General Welfare, dealing with a lot of other types of interventions.
(iii) The Legal Aid Act of 1998 reorganized the system of legal aid. We can see three parallel sectors: first line legal aid by private lawyers, second line legal aid and social legal aid. Cooperation should be enhanced for the benefit of the service users.
More specifically the study revealed :
(i) New needs have appeared and led to new types of organisations, like children’s rights, asylum seekers, and so on. Legal aid often is one of the ways to deal with new areas of legal problems.
(ii) Trade unions and health centres have obtained a permanent position in the social legal aid system. Law shops, on the contrary, have disappeared. Initiatives on welfare have achieved a larger scale: professionalization goes hand-in-hand with a lack of individualized social work.
(iii) There is a fragmentation of the first line services. However, the intention of the lawmaker in 1998 was to create the Commissions of Legal Aid to coordinate the first line, but they didn’t succeed in doing so.
(iv) The “houses of justice” have a very special role. Their mission is essentially a “logistic” mission for the Commissions of Legal Aid.
(v) The Centres for General Welfare have developed and they play an important role in social legal aid. Their general mission is to contribute to a life in accordance with human dignity by giving everyone the possibility to exercise their individual rights. Fragmented initiatives have been coordinated.
(vi) PCSWs have always played a prominent role in social legal aid. Some still deliver well-organised services; others hire lawyers to do it. They also have specialised in the matter of debt problems.
(vii) The initiatives for legal aid in housing matters have a specific position. The tenant organisations are funded by the minister of Housing, but the link between housing and welfare is apparent: the option is to deal with general problems of housing; legal assistance is one of the fields of action.
A few other conclusions of the research can be made:
(i) Origins and objectives: most social legal aid organisations are social organisations, generated by private initiative (not-for-profit organisations, like welfare organisations, law shops…) in the field of social welfare sensu lato (trade unions and health centres), or set up by public authorities (ombudsmen, PCSWs, children’s rights organisations).
(ii) Target groups: in most of the sectors, the target groups are clearly defined (e.g. tenant organisations). But the centres for general welfare and municipal centres for social welfare have very general or vague criteria. However, they specialize in certain issues and target groups, like vulnerable people, homeless people, clients of the justice system, elderly people, youth, persons with relational, personal or financial problems. None of the organisations work with income-related criteria.
(iii) Funding: most of the organisations get funding from the Flemish government (e.g. housing and welfare organisations). Others were till the 6th State Reform subsidised by the federal government (Houses of Justice). Sometimes the organisations have a contribution-driven system (trade unions, consumers’ organisations). Finally, some have specific funding by the organising institutions (e.g. Childrens’ Rights Ombudsman by Parliament).
(iv) Legal matters: the legal matters dealt with are obvious for some of the legal aid organisations. Others deal with general problems, but specialise, dependent on the needs of the users and evolutions in society (e.g. debts). Sometimes legal aid is just a part of the “supply” of the organisation.
(v) Type of services delivered: mostly it is frontline, first line legal aid (advice, information, referral, practical services). Going to court is rather exceptional, but can be envisaged for important questions with a collective or structural dimension.
(vi) Personnel: some organisations work with jurists and private lawyers, others with social workers, or both. Sometimes volunteers participate.
Although the landscape of social-legal aid and legal aid provided by private lawyers seems to be fragmented a more holistic and so-called “socially responsible” legal aid is advocated. The different players in the field of legal aid have a role to play, because legal aid is part of the public sphere, since fundamental rights are at stake: lawyers and other actors, like institutions of social legal aid should cooperate with the social sector in general (Gibens, 2009; Gibens & Hubeau, 2013).
The various socio-legal organisations are characterised in different ways. We will discuss here the features of some of the important organisations that provide broad access. These organisations are important players within the new context of the new first line legal aid act in Flanders and the local social policy act that gives shape to the IPR (Integrated- Rights Practice: see 5.4.). In this context, the key actors are therefore : the Commissions of Legal Aid, PCSWs and GWCs (Gibens 2018).
What are the characteristics of access to private lawyer services that are organised by the legal aid commissions?
- The services are only available on demands. In other words, they are reactive.
- The services are mostly used by middle-class people.
- The services are only basic entry point to legal services. The advice can only be about legal issues. The advice is given in short consultations (+/- 10 minutes) usually consisting of basic practical information and legal information. Sometimes more elaborate advice can be given, but in general this is a basic initial consultation with no follow-up possible.
- 90% of cases involve a referral to a private lawyer/practitioner on the second line.
- These lawyers involved generally have no knowledge of social welfare organisations. This is problematic where clients have to deal with social problems within a legal context, or legal problems within a social context.
Another general entrance point to legal aid services are the PCSWs. What are the characteristics of accessing legal aid services in this way?
- People can visit these centres for information, advice, referral, mediation services, and other assistance and support relating to their social and legal problems.
- These centres are a part of social work services (voluntary and controlled) and can be categorised as a social entrance to legal aid services..
- Legal issues are handled differently depending on whether a bar-managed model or a staff model is used:
- Under a bar-managed model the advisers are the private lawyers from the commission. They only give information or advice and have mostly no contact with the local social workers. The advisers only offer consultations a few hours in a week, or sometimes only every two weeks or once a month.
- Under a staff model, public lawyers support social workers who give advice on consumer problems (mostly debt-related issues), social security law (such as requests for financial help), family issues and tenant problems). It should be noted that this kind of interdisciplinary support does not exist in every public welfare centre.
- In public welfare centres the services are provided for free for everyone, although there is a focus on supporting vulnerable people.
Aside from the public welfare centres there are also private welfare centres like GWCs that are organised in the form of an NGO. General Welfare Centre supports the personal and social development of its clients and encourages them to exercise their individual and social rights in order to live with dignity (article 3 of the General Welfare Act). These centres form part of the voluntary social work system. The GWCs are purely based on a staff model: there is generally interdisciplinary collaboration between lawyers (however, this is is not available in every GWC) and social workers on issues including debt assistance, victim support, and family mediation. GWC’s services are provided for free.
If we examine the features of both social (legal) entrance points, we could describe them as:
- reactive services;
- public welfare centres reaching vulnerable people and GWCs that focus on a mixed public (both middle-class and poorer people);
- The entry to these services is on purely a social basis, because intakes are done by social workers.
- Public staff lawyers provide legal support to social workers. Most of the time the lawyers have no direct contact with the clients.
- The lawyers are familiar with social issues within a legal context and legal issues within a social context. They provide information, advice, assistance, mediation, sometimes representation (but not in courts), and a broader range of services than private lawyers.
There are other specialised social-legal entrance points to legal services. These include unions, health insurance organisations, consumer organisations, tenant organisations, children’s right centres, and migrant organisations. These are third sector organisations that are mostly staffed by lawyers and non-lawyers. Some of these organisations require membership in order to provide services, but many of them provide also reactive services.
Proactive socio-legal services are hardly ever performed by above mentioned organisations and are often only experimental in nature (see below : the discussion of the holistic approach).
5.6. Quality assurance
The 1998 Legal Aid Act stipulates that it is the local Bar Association – and in case of first line legal aid the commission of legal aid since the new Flemish First Line Legal Aid Decree – that monitors the quality of the services provided by private lawyers. This quality control or assurance consisted of two options, at least until the legislative amendment of 1 September 2016, i.e. registering and omitting of the list in case of misconduct. The new amendment on the 1998 legal aid act now also provides for the possibility of a suspension. The 1998 Legal Aid Act provides for a cumbersome procedure as in disciplinary proceedings if the Bar Association refuses to register lawyers on the list or if a measure is imposed on them.
A clear government policy should not only aim to clarify the objectives of legal aid, but also develop quality standards for institutions in the field. These quality standards should be clearly written, and should also include techniques to measure the quality of frontline services. Within the welfare domain, social organisations are already familiar with such techniques and monitoring methods. The GWCs and PCSWs are monitored and regularly reviewed. However, the bar and the legal aid commissions are not yet familiar with such approaches, and it is likely that there will be some resistance to any interference by state authorities.
The new act on first line legal aid in Flanders emphasises that commissions act independently of the local bar association. The commissions now have a duty to produce a register for complaints and handle them appropriately (see article 34 of the relevant act and article 4 § 2 paragraph 2 6° and 4 § 3 draft decree). A novel aspect is the fact that the public administration now has supervision and the quality control competencies. These powers also apply to supervision of the cross-border conduct of lawyers (Article 4 § 3 (should in fact § 4 be material error in the BVR). The new first line legal aid act sets quality indicators that are based on the concept of “integral accessibility”.
The concept of integral accessibility relates to the inaccessibility of legal aid by disadvantaged people. Hubeau and Parmentier (1999) proposed a consumer-friendly approach that increases the accessibility of legal assistance on the basis of the 5Bs (in Dutch): bereikbaarheid, beschikbaarheid, betaalbaarheid, bruikbaarheid and begrijpbaarheid (accessibility, availability, affordability, usability and understandability). These criteria for defining an accessible service have proven useful with respect to legal assistance, as well as for the social- cultural sector and social services. Recent research shows that these 5Bs have often been expanded to 7Bs: bekendheid (familiarity) and betrouwbaarheid (reliability). Just as the 5Bs have proved their usefulness in relation to the mapping out of the accessibility of legal assistance, they can also be used to analyse and study the integral accessibility of the legal system and the courts. Whenever socio-legal aid policy is developed, the policymaker should take into account the general requirements that must be met. These requirements are represented and explained by the 5Bs, as described in the following table.
Chart 14. Affordability, availability, accessibility, usability and understandability
|Macro||Budget strategic aims frequency of needs and use models of legal aid||Vision of equal access to the law & courts budgetary preconditions (government intervention or not) societal developments (e.g. refugees)||Geographical scale||Lines (clear legal descriptions)||Legal language and legal culture|
|Meso||Organisation: people and resources||
Dissemination monitors: (legal) aid workers, region, place, time cooperation: sectoral and intersectoral
integral: reactive and/or proactive types of (legal) aid worker: generalist or specialist
|Access points: direct, indirect, neutral, non- neutral, physical, non- physical social and legal reception visibility and awareness dissemination||
Bespoke: knowledge building on methodologies generalist
specialist coherent: internal and external
at the right time target-group-oriented: vulnerable <-> self-reliant
|Micro||Price one-time/multiple use||Opening hours locations (physical or virtual) types of aid worker||
Proximity: territorial, relational, social and professional
involvement: clients‟ problems are acknowledged
|Tailored to the situation (social, legal, substantive and financial)||Basic attitude: attention to signals use of specific methods and methodologies: conversation techniques, instruments, consultation, follow-up use of clear (legal) language|
Source: Gibens 2018
5.7. Criminal legal aid
In special areas like criminal law cases, the bureau will grant legal aid on the request of the investigating magistrate or the criminal court. Since the Salduz jurisprudence and the promulgation of the Salduz-act from the 1st of January 2012, the assistance of an advocate during police interrogations has become more than a hot item. A special duty counsel scheme has been set up in order to represent the suspect before the investigating magistrate. The Flemish Bar Association has worked out a special computer program to organize the assistance of an advocate during the first interrogation in police stations. The computer system enables the police to call one single telephone number where they will be informed of the lawyer who will attend the interrogation. The operator subsequently will convoke the advocate.
The scope of criminal legal aid, the eligibility, the process for obtaining criminal legal aid are similar to the scope, criteria and process for obtaining civil legal aid. We are referring to 5.9. for the explanation of the scope, eligibility criteria and process for obtaining legal aid.
5.8. Civil legal aid
5.8.1. Scope of civil legal aid
First line legal aid is free for every citizen (see 5.4.). We will only focus in this and the following chapters on second line legal aid.
Second line legal aid means that the government (partially) pays the costs of a person’s lawyer. This is a lawyer who provides assistance in the following ways:
- In legal proceedings: the lawyer represents an individual as a plaintiff or as a defendant, follows up on a file, and undertakes other similar tasks.
- Outside of legal proceedings: the lawyer gives extensive advice about an individual’s situation, negotiates agreements, sending a notice of default and other similar tasks.
The concept of second line legal aid only relates to private lawyers’ fees. The government does not intervene to help with the costs of a trade union or an interest group assisting an individual in legal proceedings.
A person may be entitled to second line legal aid:
- Because he belongs to a specific category of people (such as a minor or a a low income person); or
- Because his income is below the specified limit.
If a person meets these conditions, he is not obliged to apply free legal aid.
Second line legal aid should not be confused with legal costs. Second line legal aid ensures that a person seeking justice does not have to pay lawyers’ fees (in full). In contrast, legal costs ensures that a person does not have to pay (in full) legal costs (meaning the cost of bringing proceedings before the court). It is up to the court to decide whether or not a person is entitled to free legal costs. Legal costs can be ordered by the bureau for legal costs (the court chamber). Under the previous legislation (1998), the decision of the legal aid bureau counted as proof of insolvency, and the new Act confirms (2016) that this is proof of insolvency. No other steps have to be taken.
While under the previous legislation one had to prove a lack of income in order to access legal aid. Now, before being granted legal aid it is necessary for a person to prove that they lack ‘sufficient means’. This is a broader concept than income. The legislature defines ‘insufficient means’ as including income, real estate, resources/benefits from movable and immovable assets, capital, all benefits in general, or other signs of solvency. Child allowance and the family home will not be taken into account.
In addition to the income criteria, Under the previous legislation, certain groups of people were exempted from having to prove lack of income. Now these categories are classified as ‘refutable presumptions’ of eligibility that can be rejected by a contrary decision of the legal aid bureau. For that reason, the legal aid bureau can request all necessary information from the requesting parties and even from third parties, such as government institutions and the tax administration authorities. The only exception is for minor children.
5.8.2. Eligibility criteria for civil legal aid
As mentioned before, a person may be entitled to second line legal aid if he belongs to a specific category of people (target group). The Royal Decree of 18th December 2003 concerning the conditions for full or partial free legal aid and legal assistance sets out which categories of people are entitled to legal aid.
(i) People receiving help from public welfare (PCSW) may be entitled to legal aid.
To determine this, the PCSW requires receipt of a living wage or social assistance on a regular basis (financial or material). This includes assistance with medical costs and consumer costs. In this kind of case, there is a presumption that one does not have sufficient means to hire a lawyer.
When applying for free legal aid, the person has to produce the decision of the PCSW in which he is granted a living wage or social assistance.
Legal aid can be refused if this presumption is refuted. This is the case when it appears that, despite the help of the PCSW, the person still has enough income or money to afford a lawyer. The Bureau for Legal Aid (BLA) can therefore ask the applicant a number of questions about his family situation, his property or his bank accounts. If the applicant’s income changes after a lawyer has been appointed, he must inform his lawyer. The lawyer will contact the BLA. If a person no longer meets the conditions for legal aid, then the legal aid can be terminated.
(ii) A foreigner may be entitled to legal aid. There is a presumption that a foreigner has no sufficient means for hiring a lawyer when it comes to a procedure about that person’s residence rights in Belgium. This includes:
- A regularisation application and the continuation of that application;
- An appeal against a deportation decision;
- An application for asylum or a request for subsidiary protection; This includes procedures before the office of the commissioner general for refugees and stateless persons, (C.G.V.S.), the Council for Alien Law Litigation (R.V.V.) and the Council of State (R.v.St.).
To prove this status the applicant has to produce documents that prove that he meets the conditions, such as:
- Documents that show an alien status (for example a residence permit or card);
- Proof that one of the above-mentioned procedures will be started. For example: an order to leave the territory; an application before the C.G.V.S., the R.V.V., or the R.v.St.; or a regularisation request.
If the application concerns a different procedure than a residence procedure (such as a divorce, or a tenancy problem), then this presumption does not apply. The person will not be entitled automatically to a free lawyer. The person can request for legal aid based on other grounds, such as insufficient means. Legal aid can be refused if the relevant presumptions are refuted. That will be the case when it appears that the individual still has enough income or money to pay for a lawyer. The BLA can therefore ask the person a number of questions about his family situation, his property or his bank accounts.
(iii) In the case of over-indebtedness or personal bankruptcy, a person is entitled to legal aid only in order to facilitate a procedure on collective debt settlement. In that situation, the applicant completes a declaration of honour in which he states that he is dealing with over-indebtedness and that he wishes to apply for a collective debt settlement. The lawyer is only assigned to apply for a collective debt settlement. Once a collective debt settlement has been authorised, the person is not entitled any more to legal aid.
If the issue concerns a different procedure than a request for a collective debt settlement (such as a divorce or a tenancy problem), then the presumption does not apply. The person can apply for legal aid on other grounds such as insufficient means. The BLA may take into account exceptional debts which exclude everyday costs. Exceptional debts can be proven:
- By submitting repayment plans that have been negotiated with various creditors. The agreed monthly instalments will be compared with the individual’s income to determine whether or not there are exceptional debts.
- If a collective debt settlement has already been authorised, by submitting a certificate from the debt counsellor as proof of the person’s monthly living allowance.
Legal aid can be refused if the presumption is refuted. This is the case when it appears that the person still has enough income or money to pay for a lawyer. The BLA can therefore ask a person a number of questions about his family situation, his property or his bank accounts.
(iv) A minor is automatically entitled to legal aid. It is the only category where the presumption that one has insufficient means cannot be refuted. The minor has simply to produce his identity card. If the individual reaches the age of majority during the ongoing legal proceedings, then legal aid may be terminated. In that case, it is important to check whether the person might be entitled to legal aid on other grounds. For example, if the applicant falls under one of the other categories (such as PCSW or indebtedness) or because the applicant has insufficient means. When an applicant has to appear before the juvenile court on criminal charges that occurred when the applicant was still a minor, the applicant will be still be considered a minor for the purposes of legal aid.
(v) If the applicant suffers from a disability of more than 66% of bodily function, he may be entitled to legal aid. The applicant must produce the decision of the social security service, in which he has been allocated an income replacement allowance. As with the other categories, legal aid can be refused when it appears that the applicant still has enough income or money to hire a lawyer.
(vi) A prisoner may be entitled to legal aid, because his imprisonment will be regarded as a presumption of insufficient means. This requires the prisoner to be fully deprived of his liberty. The prisoner is ineligible if he has been released on parole, or in the case of electronic detention. Persons in pre-trial detention and internees also fall under the scope of imprisonment for legal aid purposes. If a person is imprisoned, then he is granted legal aid for all procedures, not only for criminal procedures.
Like the other categories (except for minors), legal aid can be refused if the presumption is refuted.
(vii) There are other categories of people who, due to their specific situation, are entitled to legal aid:
- The tenant of social housing who pays rent in the Flemish and Brussels-Capital Region, that amounts to half the basic rent;
- The person who receives a guaranteed income for elderly persons (IGO);
- The person who has a dependent child who is entitled to guaranteed family benefits;
- Mentally ill people in the context of a procedure for the protection of the mentally ill (psychiatric detention).
Like the other categories (except for minors), legal aid can be refused if the presumption is refuted.
This happens when it appears that the person still has enough income or money to pay for a lawyer. The BLA can therefore ask the applicant for legal aid a number of questions about his family situation, his property or his bank accounts.
If a person does not fall under any of the categories listed above, he can still apply for legal aid on the grounds of insufficient means. The BLA will conduct a means test. There is a distinction made between people living alone and families.
For an applicant living alone, the BLA calculates his monthly income. This may include:
- A net wage;
- A replacement income:
- Unemployment benefits;
- Health benefits; and
- A pension;
Relevant income can also include movable property (for example, shares) or real estate (for example, the rental income from a property).
The BLA estimates the average of the individual’s monthly income.
To do this, the BLA takes also into account the normal holiday allowance and Christmas bonus. The monthly wage is multiplied by 13.92 (or 12.92 if there is no 13th month payment) and then divided by 12. In case of unemployment, the daily allowance of the unemployment benefit is used as the reference point. In the case of illness, the health benefit is multiplied by 26 days. Any tax refund will be counted after dividing it by 12.
What about alimony payments? A regularly alimony payment will lead to a deduction on the monthly income. A alimony recipient should add it to his monthly income. If alimony is imposed by a judgment, but not implemented in practice, this amount is not taken into account. If a person is dealing with an exceptional debt problem, it is possible to apply for a deduction on the monthly income calculation.
The BLA is entitled to investigate all means of subsistence, for example savings, other benefits like free housing, signs of wealth (for example, recurring financial support from a third party or access to different houses or cars).
No account is taken of the family house, family benefits, or non-regular help from third parties.
Children, both minor and adult, who are registered at the same address are regarded as ‘dependents’. The BLA deducts €188.22 from the monthly income per dependent child. Every person living in the same family, not being a dependent child, equates to a deduction of €190.57 from the monthly income.
In procedures against or a legal conflict with a person that a legal aid applicant lives with (for example a divorce), the BLA disregards the income of that person. Therefore, only a person’s own income and that of any other person who lives with the applicant (but not a party to the conflict) are included.
What are the income thresholds?
Chart 15. A person living alone
The person’s monthly income is less than €1026.
Completely free legal aid.
The person’s monthly income is between €1026 and €1317.
Partially free legal aid. The person must pay part of the lawyer fees himself. This is between €25 and €125, depending on his income.
The person’s monthly income exceeds €1317.
No right to legal aid.
Source: Helder Recht
Chart 16. Family unit
The family’s monthly income is less than €1317.
Completely free legal aid.
|The family’s monthly income is between €1317 and €1607.||Partially free legal aid. The person/family must pay part of the lawyer fees themselves. This is between 25 and 125 euros, depending on the family’s income.|
The family’s monthly income exceeds €1607.
No right to legal aid.
Source: Helder Recht
5.8.3. Process for obtaining civil legal aid
A. List of private lawyers
Article 508 / 7 of the Judicial Code (Jud. C.) requires the council of each Bar Association to create a Bureau for Legal Aid (BLA) “according to the rules and conditions it determines”. The legal aid bureau has no legal personality, and is a part of the local Bar Association (which is a legal entity). Each Bar Association Council is responsible for organising the legal aid bureau. There are no specific legal requirements for organising the bureau. One of the tasks legally required of the bureau is to organise “guard duty”.
Legal aid is provided exclusively by private lawyers. In the first place, lawyers are free to decide whether or not they want to provide legal aid. The local Bar Association draws up a list of lawyers who are willing to provide legal aid services (partially or in full). Secondly, if there are not enough voluntary private lawyers then the Bar Association may (if necessary) compulsorily register lawyers for special areas. The list of lawyers specifies each lawyer’s the preferred type of matters . If a lawyer cannot document their abilities to provide legal aid in special areas, the lawyer may state that they are willing to undertake training organised by the Bar Council, by the Order of Flemish Bars or by the Ordre des barreaux francophones et germanophones (Article 508/7 Jud. C.). If a lawyer is refused registration onto the legal aid list, then they can appeal this decision (Article 432bis Jud. C.) to the Disciplinary Board of Appeal. The Bar Association supervises the effectiveness and quality of the services provided by lawyers, as well as the frequency of lawyers’ appointment and whether legal aid has been terminated.
If a lawyer does not meet the required standards the Bar Council may order the following measures. Firstly, it can determine some conditions the lawyer has to fulfill in order to remain registered on the list. Secondly, it can suspend the registration of the lawyer on the list for a period of eight days to three years. Thirdly the Council may decide to strike the lawyer from the list. The suspension has no effect on ongoing appointments made by the legal aid bureau. In the event of non-compliance with the conditions imposed by the Bar Council Association, the chairman of the Bar Association can summons the lawyer to a hearing before the Bar Council. If a lawyer is removed from the list, he will be discharged from handling his case files unless the Council decides otherwise. The lawyer can only request re-registration after a period of 5 years. In the event of omission, the bureau for legal aid will appoint a new lawyer for the client. The removed lawyer can lodge an appeal to the Disciplinary Board of Appeal (Article 432bis Jud. C. and art. 508/8 Jud. C.).
B. Granting legal aid
Second line legal aid is provided partially or fully free of charge to people who have insufficient means and to certain categories of people. Legal aid is not granted if the applicant can rely on the third party assistance (e.g. legal expense insurance). The Royal Decree of December 18th 2003 determines the subsistence threshold, the supporting documents to be submitted with applications, and the categories of people who are deemed by default to have insufficient means (Article 508/13 Jud. Code). The Royal Decree of 18th December 2003 also provides that the legal aid bureau can request all relevant information from both the applicant and third parties to prove subsistence, with the exception of minors (as discussed previously 5.9.2.).There are in general three ways to apply for legal aid.
(i) An application for partial or full legal aid can be submitted to the bureau orally and/or in writing. The supporting documents must be attached to the application form. The legal aid bureau checks whether the conditions for legal aid are met. Applications that the bureau considers ineligible will be refused (art. 508/13 third paragraph Jud.C.). The bureau’s decision is based on the documents attached to the application (art. 508/14 paragraph 5 Jud. C.). When the necessary conditions are met, the legal aid bureau will appoint a lawyer who is registered on the list. The bureau informs the applicant of the decision within fifteen days. If the bureau decides that the applicant will not be granted to legal aid, the bureau has to justify its decision and inform the applicant so that he can appeal (if he wishes).
Initially the legislature required a lump sum contribution of €20 from most applications, in order to prevent abuse of the system (art. 2bis RD 2003). A lump sum contribution of €30 was required for every proceeding in which the applicant would have been assisted or represented. The lawyer could only act if he had received these contributions, unless the lawyer agreed to waive it, was allowed a special payment term or if the applicant was exempt (as stipulated in article 508/17 § 4 of the Judicial Code). This requirement was been regarded as a new barrier to accessing justice. On that ground, this requirement was annulled by the Constitutional Court in a recent judgment (no. 77/2018).
The applicant may appeal a negative decision of the legal aid bureau (Article 508 / 16 Jud. C.). The appeal must be lodged with the labour court by way of a petition or a registered letter (art. 704 Jud. C.) within one month of the notification of the negative decision (art. 508/16 and 580 / 18 Jud. C.).
(ii) A person who is eligible to free or partially free legal aid may also apply directly to a lawyer who is registered on the list (Article 508/7 Jud. C.). The lawyer will then submit the application on the person’s behalf. In urgent cases, the bureau may provisionally grant the benefit of legal aid. The applicant must then submit the supporting documents within 15 days. If the supporting documents are not submitted within that period, legal aid will terminate automatically (art. 508/14, fourth paragraph jud. C.).
The rules governing the termination of the grant of legal aid have been reformed, and reflect the legislative goal of restricting access to legal aid. The legal aid bureau can terminate ex officio, or on request of the private lawyer, the legal aid, if: a) the person no longer meets the eligibility criteria; b) there is a lack of cooperation; c) the private lawyer reports that further intervention will not be of any use or add more value to the case. The office will inform the client, who can then respond, after which the legal aid bureau will make a final decision. In the case of a negative decision, the client may appeal to the labour court.
(iii) In some more specific situations private lawyers must be appointed automatically by the president of the legal aid bureau (art. 508/21 Jud. Code). The most important examples include:
(a) under article 26, § 2 of the act of 21 December 1998 on security of football matches, where a minor is involved in an administrative procedure;
(b) in cases of youth protection when minors have committed a crime;
(c) in the case of a mentally ill person who has committed a crime;
(d) under article 254 of the Criminal Code: legal assistance for the accused before the Court of Assises ( a special criminal court in cases of serious crimes such as murder);
(e) under article 7 of the act of 26th of June 1990 on the protection of the mentally ill person: assistance for the person whose detention is requested for observation;
(f) under article 479-20 of the Program Law of 24 December 2002: in proceedings before a justice of the peace to do with personal or property disputes between a guardian and their unaccompanied minor alien;
(g) under article 75 of the special act on the Constitutional Court of 6th of January 1989: assistance for a party in a procedure before the Constitutional Court filing an action for annulment, or in the case of a preliminary question.
An automatic appointment can also occur when the person has sufficient income. The person will be invited to advise his preference for a specific lawyer. If the matter is urgent, the president of the bureau may appoint an on-duty lawyer. A person with adequate income is not entitled to free legal aid and has to pay the legal fees himself. The lawyer has a duty to determine his honorary fees according to the rules of article 446ter of the Judicial Code. This means that the lawyer is expected to use moderation when calculating his fees.
If the person to whom a lawyer has been officially appointed fails or refuses to pay the fees of his lawyer, then the lawyer will be granted a government allowance. The lawyer only has to prove that his request for payment remains unfulfilled. In the event of a partial payment of fees, the amount paid by the government grant will be deducted.
A legal aid lawyer receives compensation from the state for the work he has done. This allowance will be paid on the basis of a nomenclature of points (see 5.5.) after the lawyer has submitted a report about a completed case. (Ministerial Decree of 19 July 2016 establishing the nomenclature of the points for services provided by lawyers charged with partially or completely free second-line legal assistance, Belgian Official Gazette 10 August 2016).
In addition, while the previous legislation offered no real opportunity to reconsider the level of compensation of the private lawyer in the case of a successful intervention, the new 2016 Act (that changes some aspects of the 1998 Legal Aid Act) allows the private lawyer to request a re-assessment by the legal aid bureau. The underlying principle is: if the resources had been available at the time of the application, the client would not have been granted legal aid. There are some limits regarding the amount that can be requested.
The legal aid paid out by the government can be recovered by the state from the client. This is possible (there is no automatic requirement or obligation to do this) in the following cases (art. 508/20 of the Jud. Code): 1) if it appears that a change has occurred in the person’s assets, income or expenses, which enables the client to pay his fees himself; 2) when the litigant has benefited from the lawyer’s actions in such a way that, if that benefit existed at the time of the application, the assistance would not have been granted to him, insofar as those amounts were not already collected by the lawyer; 3) if the assistance was provided on the basis of false statements or obtained through other fraudulent means.
When the beneficiary of legal aid is insured, the treasury will take a subrogation action on behalf of the paid lawyer in order to recover remuneration from the legal expenses insurance company. If the company has already paid either the client or the lawyer, then the treasury will force the client or his lawyer to refund the legal aid (art. 508/20 of the Jud. Code). The same requirement applies if the client is entitled to the costs for hiring a lawyer as decided by the judge and he receives it after the lawyer has submitted his final report to the legal aid office.
There is a time limit of five years on such recovery actions, starting from the date of the decision to grant the (partially) free legal assistance. The recovery action of course does not affect the possibility of criminal prosecutions being brough against the client, where he received the free legal assistance on the basis of false statements, false documents or other fraudulent means.
D. Cross-border disputes
People who live in Belgium and wish to apply for legal costs or legal aid for the purpose of proceedings in another EU Member State can make an application either to the Federal Public Service for Justice or to the BLA (which then sends the request to the FPS Justice). It is the latter office who, after any translation, sends the legal aid request to the competent authority of the other member state (art. 508/24 of the CC).
A person who has received legal aid in another EU Member State also benefits from legal aid for the recognition, enforceability or enforcement in Belgium of the decision given in the other Member State. A person who has sufficient means and could therefore not receive legal assistance in Belgium can still benefit from legal aid. To do this, the applicant must prove that he cannot bear the relevant costs due to living cost differences between Belgium and the other Member State (art. 508/25 Jud. W.).
5.9. Holistic legal services
5.9.1. General framework: a research project
Inspired by the policy statements of the Flemish Minister of Welfare and aiming to focus more attention on early intervention, a project was set up between two partners of the Commission of Legal Aid in Leuven: private lawyers offering aid and the GWC of East-Brabant. The project aimed to provide legal aid from private lawyers in two different community centres (GWCs) – one in Tienen, a small town in a rural area, and one in Leuven, a university city – both of which work with vulnerable people. Some of the consultations were held with social workers present, others without. These social workers engaged with their clients on a daily basis, while the private lawyers were available for consultation every fortnight for about two hours. The project ran for a period of six months.
The project was conceived after evidence was found to suggest that frontline aid from private lawyers was more often provided to the middle class rather than the most vulnerable. The project thus aimed to inform and advise more vulnerable people about legal issues within a social setting. Based on the literature, one might describe this form of proactive legal aid service as „peripatetic outreach‟ or „inreach‟ (Stimson et al., 1994; Rhodes, 1994; Grymonprez and Mathijssen, 2014; Van Doorn et al., 2008), in the sense that private lawyers visit locations where vulnerable people often meet each other. The community centres co-exist alongside regular welfare organisations and have developed an appropriate method to reach vulnerable people, referred to as „presence theory‟ (Baart, 2011) or „basisschakelmethodiek‟ (basic chain method) (Baert and Droogmans, 2010). The project differs from the frontline legal aid organized by the Commissions of Legal Aid.
5.9.2. The difficulties of communication and cooperation between the legal and social professional
Private lawyers normally provide consultations in different settings within a judicial district, for example, at the courts, the House of Justice, or local public welfare centres. These services are more reactive, and are usually used by the middle class. During these brief consultations (approximately 10 minutes), legal issues will be handled, but only practical legal information is offered, sometimes more elaborate than others, with the offer of only initial brief advice and no follow-up. Of the referrals, 90% are to a private lawyer in the second line if the client needs to make further contact with a counterpart, or requires a letter, or when the frontline lawyer is not sufficiently familiar with the legal matter.
In the case of a social problem within a legal context, private lawyers do not have the requisite knowledge of social welfare organisations, and do not refer clients to social welfare organisations or other socio-legal aid services such as those offered by unions, housing unions, consumer organisations or ombudsmen. These organisations often work with vulnerable people or a mixed public and provide a social space where intake is done by social workers or employed lawyers (e.g. PCSW and GWC). These lawyers – which are not private lawyers and not a member of the bar– provide legal aid for clients by supporting social workers when their clients are confronted with legal issues, and they are familiar with social issues as well. Thus, they not only provide legal information and advice but also assistance, mediation and representation.
During the project, it became clear that not every private lawyer felt at ease, and they often lacked the basic attitude required. In this environment, it is not necessary to be a brilliant private lawyer but to be a „human being‟. It is possible to characterize private lawyers as somewhat distant, primarily problem- focused, taking a more rationalistic position, looking at the objective facts and interpreting these facts within a legal framework (atomistic rather than holistic). Primarily, they wish to intervene immediately and see themselves as advocating on behalf of the clients (the advocacy model, according to Galowitz) (Galowitz, 1999; Aiken and Wizner, 2003; Hyam et al., 2013; Rizzo et al., 2015).
In the community centre, the private lawyers had direct contact with clients around a table, where they might drink coffee and talk about everyday life issues. Thus, rather than hide behind their desks, in the centre they had more space and time to not only build formal, but also to develop informal, contacts. This contact created less distance and more proximity. The presence of the private lawyers also led the clients to trust them more, which they considered was more important than a confidential or private conversation. The process was about building an understanding or even a relationship. This understanding meant more to the clients than the lawyers simply helping them to rationalize the legal issues or problems. Their daily life issues not only concerned legal problems but often also social problems. This complex context was what was important, whether a specific issue was legal or social. In fact, both contexts could be intertwined, with even a small legal question potentially containing various legal sub-problems, hiding legal complexity within a social context or vice versa.
The presence of the private lawyers also changed the attitude of the social workers to the law. Although social workers are often the first to face the legal problems of their clients, they do not generally regard these problems as purely legal and consider the issue might be addressed through social work (Aiken and Wizner, 2003). A study by Michael Preston Shoot (2011 and 2013) revealed that social workers considered law to be a tool for resolving issues, challenging inequality, protecting people at risk and meeting their needs. Nevertheless, while these final-year social work students reported less anxiety about using and keeping up-to-date with the law, their levels of anxiety in relation to it remained high. As law has become such a central feature of contemporary social work practice, the students were particularly concerned about how to keep up-to-date and how to ensure that the information they provided was accurate.
At the same time, the social workers in the project used different methods to work with clients. In contrast to the private lawyers, they were client-focused, sought more proximity, built up relationships, worked within the life world of the clients, were more contextual, more present, and as Galowitz stated, they tried to act in the best interests of the client, which is not always to the immediate benefit of the client (best interest model). In the community centres, legal issues were normally referred to in-house lawyers who remained at a distance (it was necessary to make an appointment, and the lawyers only provided legal information and referred people to other legal services). During the project, however, social workers had direct contact with the private lawyers, with whom they were previously not familiar and had often had bad experiences.
We can also make a distinction between consultations with and without social workers present. Social workers are well trained in communication skills, they are familiar with the daily life problems of their clients, and they are able to translate their clients‟ experience of the world to the lawyer, who functions in a legal system that is distinct and distant from that world. In doing so, the social workers create a bridge between these life and system worlds (Habermas, 1984; De Savornin Lohman and Raaff, 2012; Zifcak, 2014; Kunneman, 2015). By attending these consultations, they also obtained more knowledge about the current legal framework, which addressed their lack of basic up-to-date legal information. Thus, they became more aware of how to detect legal issues; in fact, more aware that they could detect the different legal issues at a very early stage in social contact with the client.
The clients of the community centre were mostly vulnerable people, some having psycho-social problems, others being former prisoners, and others who were homeless, facing poverty, or had a weak network of support. Due to the presence of the lawyers, and after realizing that the same lawyers would return and thus showed some commitment, they started to think and talk more about legal issues in their lives (family issues, debt problems, housing, etc.) and thus gained greater legal awareness. In this way, they came to regard the private lawyers not merely as professionals operating at a distance, but as human beings, and became less afraid of them. Many clients had already had an appointment with a private lawyer at no cost, but had experienced a lot of difficulty in trying to contact them, as well as problems understanding them due to their use of difficult legal language.
5.9.3. Features of a holistic approach
Based on the results of the research, some features of a proactive legal service based on outreach could be distinguished (cfr. Forell and Gray, 2009).
- Interdisciplinarity: legal and non-legal organisations should work together in formal and informal ways
- They should be located in the same areas or places as vulnerable people
- Flexibility: urgent matters, time, space
- Costs: while it seems more expensive, it can save costs created by X-inefficiency in the second line; the lawyers will also need specific skills (training)
- Monitoring: always looking to improve outreach services (e.g. supporting social workers with legal tools and more complex cases for lawyers; see GWC Brussels project, not evaluated yet)
- social workers should obtain more legal skills to detect legal issues, and even provide basic legal advice and refer or orient the client in a more guided way
- lawyers should learn more communication skills and other methods, such as “multidirected partiality”, to inform and advise clients (Boszormenyi-Nagy and Krasner 1986).
As Coleman concluded:
“Attorneys typically do not receive much instruction in counselling or interacting with clients, and so these social work skills are critical. This observation is especially true because it is often necessary to understand the psychological aspects of the clients’ legal problems in order to help them. Indigent clients usually have a variety of problems that contribute to, or in some way affect their legal situations (Coleman, 2001)”.
The project succeeded in bringing law into the daily lives of vulnerable people in a community centre. Two professional fields made contact with each other in what we would call „socio-legal practice‟, which might be characterized as: professional proximity (rather than distance), responsibility (able to respond adequately to the social and legal issues), communication (able to be agents of transformation) (Albiston and Sandefur, 2013) and legal presence (in time and space, able to intervene if necessary).
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.
8. PROFESSIONAL LEGAL ETHICS
Although the Justice Department continues to operate as a federal institution, the Bar was officially regionalised in 2001 into the Flemish Bar Association (in Dutch, Orde van Vlaamse Balies or OVB) and the Association of the French-speaking and German-speaking Bars (in French, Ordre des barreaux francophones et germanophones or OBFG) (Article 488 of the Judicial Code). The regional Bar associations have assumed the duties of the National Bar Association established in 1967 to promote uniformity of rules and customs, which had differed from Bar to Bar. The regional Bars monitor the rights and common professional interests of attorneys (Article 495 of the Judicial Code) and take initiatives relating to education, discipline and ethical rules, loyalty within the profession and protection of the interests of attorneys and citizens. They also organise internships and conduct professional training for interns and continuing education of attorneys.
Local Bar associations (subordinate to the two Regional Associations) are primarily involved in monitoring enrolments on the Roll of Attorneys as well as deletions (disbarments, resignations, deaths). They also supervise internships, are responsible for the ex officio appointment of a private attorney as defence counsel if a suspect or defendant does not have one, and organise legal aid. Local Bar presidents receive complaints and initiate disciplinary investigations. In 2006 the legislature transferred discipline from the Boards of the local Bar associations to six Disciplinary Boards (composed of attorneys) and a Disciplinary Board of Appeals (a professional magistrate and four attorneys). There are three Disciplinary Boards which handle the disciplinary matters of the French and German speaking Bars and three for the Dutch-speaking Bars (Stevens, 2015).
An analysis of decisions by Disciplinary Boards between 2008 and 2012, based on data provided by the Flemish Bar Association indicates that just 51 cases involved issues of client relations, compared to 112 instances where bar-related issues were at stake, 73 cases concerning questions of professional dignity, and 60 relating to relations with fellow lawyers. Occasionally, issues concerning relations with magistrates (5) and the media (7) were dealt with. This would appear to indicate that the disciplinary boards are not primarily concerned with client relations. However, the issue at hand should perhaps be placed in a broader perspective. The key purpose of the disciplinary agencies is “the protecting of the public”, which extends beyond protection of clients (Hubeau, Rutten, Vanhoutte, Gibens & Vanleuvenhaege, 2018).
The causes of misconduct among lawyers have not yet been investigated. The causes will also differ from case to case. Possible triggers are: inability to cope with stress, financial difficulties, other personal problems, concealment of professional errors, etc.
In order to be able to register on the lawyers’ roll of the Bar Council, a trainee lawyer must attend professional training and pas an exam in order to attain the certificate of competency. One of the compulsory subjects taught during this training is legal ethics. This professional training is organised by the Flemish Bar Council. Legal ethics are taught in ex cathedra classes, in which the theory is illustrated by means of examples. The competency exam tests whether the trainee lawyers are able to apply the principles of legal ethics in concrete examples. It is generally accepted that it is part of the Bar’s task to be responsible for the teaching of professional ethics. Only one Belgian University (the University of Antwerp) has a mandatory course in his master program with regard to ethics (3 ECTS-points) and professional legal ethics (6 ECTS-points). All other universities are offering professional legal ethics as an elective subject.
After qualification as a lawyer, each lawyer is free to compile his own annual continuing professional development (CPD) programme, which may consist of legal training and practice-related training. Points are awarded for CPD activities. A lawyer must accumulate 20 CPD points in each judicial year. At least two points must be earned for ethics-related training every five judicial years (art. 53 of the Code of Ethics of the Flemish Bar Council).
The two regional Bar associations are important advocates of legal aid. The Flemish Bar Council issued in 2016 a position statement regarding the second line legal aid, which is illustrative for the stance lawyers currently take. According to this statement, the emphasis should be on the following three aspects: quality of the pro bono services offered, administrative simplification (for both the lawyer and the pro bono client) and sufficient financing. With regard to the quality of the pro bono services the legal profession admits that it itself can play an important role in ensuring the lasting quality. This can be done in various ways: preventively by training or imposing training requirements on the lawyer, but also by monitoring the lawyer’s performance and the functioning of the Bureaus for Legal Aid (BLA’s), providing a complaints system for the pro bono clients, etc. Administrative simplification can and must be done. The application procedure is regarded too administratively burdensome for the pro bono client. The control with regard to the eligibility for legal aid can be made much more efficient provided that the right tools are made available. Finally, the budget can be better managed and spent, and disbursement of the pro bono lawyers can be done much more efficient.
During the reform of the organisation of the second-line legal aid in 1998 the issue whether the participation in the legal aid program had to be compulsory was raised. Traditionally legal aid was provided by trainee lawyers and the legislator incorporated this tradition in the Judicial Code of 1967, notwithstanding that legal aid was almost exclusively (for more than 99%) provided by trainee lawyers was criticised. In 1995 the relevant provisions of the Judicial Code were amended allowing second line legal aid by all lawyers. In accordance with this amendment some local Bars made participation in the legal aid program compulsory for all Bar members. Other Bars maintained a more liberal approach. During the discussion that led to the 1998 reform both approaches were discussed and notwithstanding the duty of every lawyer to contribute in legal aid was emphasised, the legislator decided to opt for the free participation of lawyers under the legal aid scheme. It was deemed that a voluntary participation was the best warranty for the quality of the services provided under the legal aid system.
Notwithstanding the currently voluntary character of the participation of lawyers in the system of legal assistance two exceptions subsist: apprentice lawyers and Supreme Court lawyers.
One of the obligations an apprentice lawyer has to comply with under Belgian law during his apprenticeship is to fulfil his duties under the second-line legal aid program. In practice this general duty implies that all apprentice lawyers are obliged to register as a lawyer willing to perform services under the second-line legal aid program and will get assigned cases within the permanence service of the program. The Belgian Supreme Court lawyers have a monopoly to act in civil cases, meaning that their assistance is mandatory when appealing to the Supreme Court. This limited group of 20 lawyers does not work under the general legal aid scheme, but do render services to clients with limited means on a no-fee basis. The cases are equally divided among the 20 members of the Bar of the Supreme Court. All members of the Bar of the Supreme Court participate automatically in this service. In criminal cases and tax litigation, where there exists no obligation to act with the assistance of a Supreme Court lawyer, no legal aid or pro bono is provided by the Supreme Court lawyers. In criminal- and tax matters clients of limited means may be assisted by any lawyer when appealing their case to the Supreme Court. Those ‘common’ lawyers are remunerated under the general legal aid scheme.
The Code of Ethics of the Flemish Bar Association only contains one provision in relation with legal aid. Article 89 of the Code of Ethics contains an obligation to inform the client about his eligibility for legal aid. When the lawyer knows or suspects that the client qualifies for secondary legal assistance he must inform the client of this fact. Although one could argue that legal aid and pro bono work are part of the essence of lawyering, the Code of Ethics does not impose any obligation for the members of the Bar to participate in legal aid (Rutten, 2014).
The oath taken by each lawyer does not contain any reference to pro bono assistance of clients. At the start of their traineeship each lawyer makes the following oath: “I swear allegiance to the King, obedience to the Constitution and to the laws of the Belgian people, that I will not deviate from the respect due to the court and to the public authorities, and that I will not advise or appear in any case which I do not consider to the best of my knowledge and belief to be just” (Article 429 of the Judicial Code). The first part of the oath emphasises that each lawyer adheres to the principles of a democratic society. A second element embedded in the oath is respect (not obedience) towards the judiciary and the other powers of the State (the legislator and the government). The last part of the oath suggests that an attorney may not be required to represent a client. The Judicial Code does guarantee the right to legal representation, however, by allowing the Bar president to assign attorneys to represent parties whom no attorney is willing to represent (Article 446 of the Judicial Code).
Both the Flemish Bar Association and the Association of the French-speaking and German-speaking Bars are active members of the Council of Bars and Law Societies of Europe (CCBE). The CCBE, founded in 1960, is an international non-profit association which has been, since its creation, at the forefront of advancing the views of European lawyers and defending the legal principles upon which democracy and the rule of law are based. The CCBE has adopted two foundation texts. The Code of Conduct for European Lawyers is the oldest and dates back to 28 October 1988. It is a binding text on all Member States: all lawyers who are members of the bars of these countries have to comply with the Code in their cross-border activities within the European Union, the European Economic Area and the Swiss Confederation as well as within associate and observer countries. More recently the CCBE adopted the Charter of Core Principles of the European Legal Profession (24 November 2006). The Charter is not conceived as a code of conduct. It is aimed at applying to all of Europe, reaching out beyond the member, associate and observer states of the CCBE. The Charter contains a list of ten core principles common to the national and international rules regulating the legal profession. The CCBE issued also two Recommendations on legal aid, one in 2010 and one in 2018. The CCBE clearly illustrates the willingness to accept and strive for a (at this stage European but maybe in the future a global) code governing lawyers conduct.
9. TECHNOLOGICAL INNOVATION AND ACCESS TO JUSTICE
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 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
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.
10. UNMET LEGAL NEEDS
The last countrywide needs assessment study in the Belgian jurisdiction dates from the late eighties of past century (1989; 506 households). It was done by a team under the supervision of professor Francis Van Loon of the Centre for Sociology of Law of the University of Antwerp (Wouters & Van Loon, 1992).
Given the fact that a lot of countries have studied the legal needs of their citizens, often in literature about legal aid, there have been proposals to do the same in Belgium (e.g. articles Gibens, Gibens & Hubeau, the report of the King Baudouin Foundation about the relation between the citizen and the justice system, 2019).
From a legal point of view, access to legal aid is provided for everyone. In fact, it is not. Often it has been said: “justice is open to all, just like the Savoy/Hilton”. However, Belgium lacks studies that scientifically map the various thresholds and on the basis of which a policy can be drawn up.
In Belgium, we have a very dense population, mostly in major cities. Rather rather hypothetical the access will be more difficult in some rural parts of the country, mostly in the Walloon part of the country. More than distance problems a more important problem is social isolation of some people, who don’t use the possibilities offered by the system of legal aid and outreach legal aid may be an answer to reach these groups.
11. PUBLIC LEGAL EDUCATION
Public legal education has no real tradition in Belgium. Apart from a few law courses in the curriculum of certain secondary school programmes and in various university curricula, especially in human sciences and then often limited to introduction into law there is little or no offer to learn and know the law for citizens. Government websites do refer to legislation, sometimes more vulgarised, but this is not yet a real education.
Towards vulnerable groups, a project has been started in Antwerp where, by outreach, people living in poverty meet every two months to discuss legal issues that determine their lives. Afterwards, there is an opportunity to ask for individual advice. However, this project is a private initiative and does not fit into a government programme.
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.
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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 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).
 Art. 11 Code of Ethics of the Flemish Bar Association.
 Art. 176.2 of the Code of Ethics of the Flemish Bar Association.
 Art. 178 of the Code of Ethics of the Flemish Bar Association.
 Art. 176.2 of the Code of Ethics of the Flemish Bar Association.
 Art. 176.2 of the Code of Ethics of the Flemish Bar Association.
 Art. 178bis and art. 178ter of the Code of Ethics of the Flemish Bar Association.
 Royal Decree no. 2 of 9 April 2020.
 See for a detailed analysis van Puyenbroeck & Vermeulen 2008.
 Salduz v Turkey App no 36391/02 (ECtHR 27 November 2008); also see Beuze v. Belgium App no 71409/10 (ECtHR 9 November 2018).
 Taxquet v Belgium App no 926/05 (ECtHR 16 November 2010).
 W.D. v Belgium App no 73548/13 (ECtHR 6 September 2016).
 Art. 727-730 Judicial Code.
 Art. 1034bis to 1034sexies Judicial Code.
 Art. 706 Judicial Code.
 Art. 1025-1034 Judicial Code.
 Art. 735 Judicial Code.
 Art. 747 Judicial Code.
 Art. 802 Judicial Code.
 Art. 770 Judicial Code.
 Art. 584 Judicial Code.
 Art. 730/1 Judicial Code.
 Art. 1734, §1 Judicial Code.
 Art. 1740 Judicial Code.
 Borgers v Belgium App no 12005/86 (ECtHR 30 October 1991).
 Artt. 731-734 of the Judicial Code.
 E.g. in labour disputes (art. 734 of the Judicial Code)
 Art. 1676 Judicial Code.
 The arbitration procedure is described in articles 1676 to 1723 of the Judicial Code.
 Regulated by Book XVI of the Code of Economic Law.
 The rules regarding mediation can be found in articles 1723/1 1737 of the Judicial Code.
 Art. 1734, §1 Judicial Code.
 Article 1724 Judicial Code.
 Collaborative law is regulated by the articles 1738-1747 of the Judicial Code.
 Article 1740 of the Judicial Code.
 Art. 1734, §1, second paragraph of the Judicial Code.
 Art. 730/1, §2 of the Judicial Code.
 Belgian Official Gazette on 2 April 2010
 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.
 Parl.St. Kamer 2015-16, nr. 1819/003, 43 (Verslag).
 Parl.St. Kamer 2015-16, nr. 1819/003, 55 (Verslag, bijlage hoorzitting).
 Parl.St. Kamer 2015-16, nr. 1819/003, 32 (Verslag).
 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.
 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.).
 BS 22 December 2016.
 Decreet 26 april 2019 houdende de justitiehuizen en de juridische eerstelijnsbijstand BS 17 juni 2019
 Art. 508/1 1 Ger.W.(Judicial Code)
 Art. 508/1 2 Ger.W.(Judicial Code)
 Both terms have the same meaning and will both be used to describe first-line legal aid
 In Dutch, the concept of Integrated-Rights Practice is captured by the term ‘Geïntegreerd Breed Onthaal’.
 Parl.St. Kamer 2015-16, nr. 1819/001, 19 (M.v.T.).
 Art. 2 KB 20 December 1999 (remunerations)
 This number is the code number of the nomenclature in the Ministerial decree
 art.508/19 Jud.C..
 art. 508/19ter Jud.C.
 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).
 Art. 667 lid 2, 3 en 4 Judicial Code.
 Art 508/18 Ger.W.
 Parl.St. Kamer 2015-16, nr. 1819/001, 17 (M.v.T.).
 Parl.St. Kamer 2015-16, nr. 1819/001, 19 (M.v.T.).
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
 (N = 156)
 (N = 30).