Belgium: Constitutional Court rules that the obligation to pay a fixed-contribution violates the right to legal aid

Thursday, June 21, 2018

On 21 June 2018, the Belgian Constitutional Court ruled in case 77/2018 concerning the appeals brought by a person who was involved in several legal proceedings and human rights NGOs against the law from 6 July 2016 modifying the legal aid system in Belgium, particularly the financial conditions to be met in order to be eligible for legal aid, the supervision thereof and the manner in which pro deo lawyers are appointed and remunerated. The appellants claimed, inter alia, that the obligation to pay a fixed-contribution to the lawyer violated the right to a fair trial as it constituted an obstacle to the access to legal aid guaranteed under Article 23 of the Belgian Constitution, and that it breached the principles of equality and non-discrimination.

The Constitutional Court recalled that Article 23 of the Constitution contains an obligation in respect of legal aid which prohibits the legislature from significantly reducing the level of protection offered by the relevant legislation without any public interest grounds for doing so. It noted, before the legislative amendment, that the beneficiaries of legal aid were not obliged to pay a fixed-contribution to the lawyer. Despite being qualified by the legislature as “modest” or “symbolic”, the Court found that the amount, which can be as high as fifty euros per contribution and multiplied according to the number of proceedings, can be a significant cost for beneficiaries of legal aid. This is contradictory as the legal aid system is aimed exactly at those who lack sufficient means to pay for legal advice and representation by their own means. According to the Constitutional Court, the objective of involving the beneficiaries of legal aid in the funding of the system does not constitute a reason of general interest capable of justifying, in itself, the significant decline in the protection of the right to legal aid. This legislative provision was, thus, ruled unconstitutional and annulled by the Constitutional Court.

The Constitutional Court dismissed the remainder of the applicants’ complaints, but highlighted that the assessment of whether a person qualifies to receive legal aid must ensure that those who would not be able to access legal assistance or representation on their own means are entitled to access the legal aid system. The definition of “means of subsistence” must take into account only the income and assets that would effectively enable a person to pay the related legal costs and not the income that allows the individual to ensure his/her subsistence and that of his/her family.

The Constitutional Court also found that the three conditions imposed on irregular migrants in order to obtain legal aid (namely, that they intend to regularise their stay, that their request is of an urgent nature, and that proceedings relate to the exercise of a fundamental right) do not breach the principle of equality and non-discrimination or the right to access to the courts.

Based on an unofficial translation by the ELENA Weekly Legal Update. We would like to thank Tristan Wibault, the ELENA Coordinator in Belgium, for his kind assistance with summarising this judgment.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Legal assistance / Legal representation / Legal aid