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Last update: 17-08-2004
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Legal aid - Belgium

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TABLE OF CONTENTS

1. What are the costs of a trial and who should normally pay them? 1.
2. What is legal aid? 2.
3. Can I benefit from legal aid? 3.
4. Can legal aid be obtained for all disputes? 4.
5. Is there a specific procedure for emergencies? 5.
6. Where can I obtain an application form for legal aid? 6.
7. Which documents should I attach to my request for legal aid? 7.
8. Where should I register my request for legal aid? 8.
9. How will I be informed of whether or not I am eligible for legal aid? 9.
10. If I qualify for legal aid, what should I do? 10.
11. If I qualify for legal aid, who will choose my lawyer? 11.
12. If I qualify for legal aid, will this cover all the costs of my trial? 12.
13. If I qualify for partial legal aid, who will pay the other costs? 13.
14. If I qualify for legal aid, will it cover any review I might make following the trial? 14.
15. If I qualify for legal aid, can it be withdrawn before the end of the trial (or even after the trial)? 15.
16. If I do not qualify for legal aid, can I appeal against this decision? 16.

 

1. What are the costs of a trial and who should normally pay them?

A court action entails a wide variety of costs: stamp duties and registration charges, fees for legal documents, the fee for registration of the judgment, costs of investigation measures, including costs of witnesses and experts, lawyers' fees etc.

As a rule a final judgment awards costs against the losing party (sections 1017 to 1024 of the Judicial Code).

2. What is legal aid?

Legal aid can be defined as any means made available to a person to allow him effective access to a court where he does not have the resources needed to cover the costs of the procedure.
The Judicial Code provides for two systems of legal assistance applicable in both civil aid criminal matters - primary and secondary legal assistance (sections 446 bis and 508/1 to 508/23 of the Judicial Code and Royal Decrees implementing them) and legal aid (sections 664 to 699 of the Judicial Code).

Primary legal assistance” means legal assistance in the form of practical information, legal information, an initial legal opinion or referral to a specialised body or organisation. Primary legal assistance is available both for individuals and for bodies corporate.

Secondary legal assistance” means legal assistance to an individual in the form of a detailed legal opinion or legal assistance, whether or not in the context of formal proceedings, and assistance with a court action, including legal representation.

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Legal aid” , on the other hand, consists of full or part exemption from stamp duties and registration charges and other costs of proceedings and is available to litigants who do not have adequate income to cover the cost of judicial or extra judicial proceedings.

3. Can I benefit from legal aid?

Primary legal assistance is available to all litigants, whether they are individuals or bodies corporate. Litigants with low resources enjoy it free of charge. Others pay a flat-rate contribution of €12.39.

Secondary legal assistance is available to all litigants (individuals but not bodies corporate) with low resources engaging in proceedings in Belgium.

Legal aid is available to the following, provided they have an apparently well-founded claim and can prove that their income is inadequate (sections 667 and 668 of the Judicial Code):

  • persons of Belgian nationality;
  • foreign nationals in accordance with international treaties;
  • all nationals of Member States of the Council of Europe;
  • foreign nationals lawfully residing in Belgium;
  • foreign nationals in proceedings provided for by the Act on access to the territory, residence, establishment and removal of foreigners.
The availability of free primary legal assistance and fully or partly free secondary legal assistance and legal aid depends on meeting certain conditions.

Anybody whose resources are considered insufficient is eligible for free primary legal assistance and fully or partly free secondary legal assistance and legal aid.

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Free primary legal assistance and fully or partly free secondary legal assistance and legal aid are therefore available to the following:

  • Subject to proof of resources:
    1. A single person who can provide documentary evidence, in a form acceptable to the lawyer, the legal assistance bureau, the legal aid bureau or the court, that his monthly net income is less than €666 (valid on 1.9.2003, adapted each judicial year in the light of the minimum exempt from attachment);
    2. A single person with a dependent person or a person cohabiting with a spouse or any other person as a household who can provide documentary evidence, in a form acceptable to the lawyer, the legal assistance bureau, the legal aid bureau or the court, that the household's monthly net income is less than the minimum exempt from attachment, currently €857 (valid on 1.1.2003, index-linked annually).
  • Automatically:
    1. Those receiving minimum income support (minimex) or welfare assistance;
    2. Those receiving the old person' guaranteed income;
    3. Those receiving income substitution allowances for disabled people not receiving the integration allowance;
    4. Those with dependent children receiving family benefits;
    5. Tenants of social housing who in the Flanders and Brussels Capital Regions pay rent at half the basic rate or who in the Wallonia Region pay a minimum rent;
    6. Minors;
    7. Foreign nationals presenting an application for regularisation of residence status or appealing against an expulsion order;
    8. Asylum seekers and applicants for displaced person status.
To determine the amounts specified at b), 10% is deducted from the minimum income support for each dependent person.

Fully or partly free secondary legal assistance and legal aid can be given to the following:

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    1. A single person who can provide documentary evidence, in a form acceptable to the lawyer, the legal assistance bureau, the legal aid bureau or the court, that his monthly net income is between €666 (valid on 1.9.2003) and that amount plus 18%;
    2. A single person with a dependent person or a person cohabiting with a spouse or any other person as a household who can provide documentary evidence, in a form acceptable to the lawyer, the legal assistance bureau, the legal aid bureau or the court, that the household's monthly net income is between the minimum exempt from attachment, currently €857 (valid on 1.1.2003), and that amount plus 18%.
To determine the amounts specified at b), 10% is deducted from the minimum income support for each dependent person.

4. Can legal aid be obtained for all disputes?

Legal assistance can be obtained for all disputes.

Legal aid can be obtained for:

  1. all procedural steps relating to applications referred to or pending before an ordinary or administrative court or panel of arbitrators;
  2. procedural steps relating to the enforcement of judgments and decisions;
  3. proceedings on applications;
  4. appeal proceedings;
  5. procedural steps which rest with a member of the judiciary or entail action by a professional or official;
  6. family mediation proceedings.

5. Is there a specific procedure for emergencies?

Concerning the appointment of a lawyer (in the secondary legal assistance context), in an emergency, a person without a lawyer may go directly to the lawyer providing out-of-hours cover organised by the legal aid bureau, who will provide assistance and then ask the bureau to confirm the appointment.

As regards legal aid, in urgent cases and in all types of matter, the President of the Court and, throughout the proceedings, the judge hearing the case, may on request, even if it is made orally, grant legal aid for the acts they determine (section 673 of the Judicial Code).

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6. Where can I obtain an application form for legal aid?

There is no specific legal aid application form imposed by law. The relevant authorities for the court district (see point 8) must be approached direct.

7. Which documents should I attach to my request for legal aid?

To obtain free primary legal assistance or fully or partly free secondary legal assistance or legal aid, applicants who are required to provide evidence of their income (see point 3) must attach all relevant documents to their application (e.g. latest income tax assessment, a certificate of composition of household, …).

Applicants who are entitled automatically must attach whichever of the following documents is relevant:

  • the valid decision of the public welfare assistance centre (CPAS/OCMW) for those receiving minimum income support (minimex) or welfare assistance;
  • the annual certificate from the National Pensions Office for those receiving the old person's guaranteed income;
  • the decision of the Minister of Social Security or the official acting on his behalf for those receiving income substitution allowances for disabled people;
  • the certificate from the National Office for Family Allowances for Employed Persons (ONAFTS) for those with dependent children receiving family benefits;
  • the latest rent bill for tenants of social housing;
  • identity card for minors;
  • reliable documents for foreign nationals presenting an application for regularisation of residence status or appealing against an expulsion order and for asylum seekers and applicants for displaced person status.

8. Where should I register my request for legal aid?

Primary legal assistance is organised by a legal assistance commission set up in each court district and comprising representatives of the Bar, public welfare centres and approved legal assistance organisations. The commission organises primary legal assistance advice centres staffed by lawyers. Applications can be presented at these.

Secondary legal assistance is organised by a legal assistance bureau set up within each local bar by the Bar Council. Applications can be presented at these.

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Legal aid applications are generally put to the office of the court in which the action is to be brought or the act is to be done (section 670, first paragraph, of the Judicial Code). There is a legal aid bureau in every Court of First Instance, Industrial Relations Court, Commercial Court and Court of Appeal and at the Court of Cassation.

The legal aid bureau in all cases consists of a judge sitting alone.

9. How will I be informed of whether or not I am eligible for legal aid?

Applications for fully or partly free secondary legal assistance are put to the legal aid bureau, orally or in writing, by the applicant or his lawyer. The legal aid bureau gives its decisions on the basis of the documents before it. The applicant or his lawyer can appear in person, on request or if the bureau requires this. Reasons must be given for decisions refusing to give legal aid. The applicant is informed of the bureau's decision.

After obtaining fully or partly free secondary legal assistance, the applicant may apply for legal aid. His lawyer will transmit the legal assistance documents to the legal aid bureau.
Legal aid decisions of the legal aid bureau or the court are given after the parties have been heard or summoned. They are fully enforceable without prejudice to appeals. Enforcement orders are made free of charge.

10. If I qualify for legal aid, what should I do?

If primary legal assistance has been given, the applicant is given practical information, legal information, an initial legal opinion or referral to a specialised body or organisation. If the case so requires, the applicant may be referred to the secondary legal assistance bureau.

If the applicant is given secondary legal assistance or legal aid, he then proceeds with his action.

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11. If I qualify for legal aid, who will choose my lawyer?

The Bar Council produces an annual list of lawyers wishing to provide legal aid services. The list gives the specialisations in which they are qualified or taking training from the Bar Council.

An applicant for secondary legal assistance may then choose a lawyer from this list, who will be designated by the legal aid bureau to handle his case. The bureau informs the lawyer that he has been designated.

12. If I qualify for legal aid, will this cover all the costs of my trial?

Legal assistance and legal aid may be fully or partly free (see point 3).

Basically, then, yes if the applicant is eligible for fully free secondary legal assistance and legal aid, subject to recovery by the State (see point 15).

13. If I qualify for partial legal aid, who will pay the other costs?

Costs not covered by secondary legal assistance or legal aid are borne by the party or parties concerned.

14. If I qualify for legal aid, will it cover any review I might make following the trial?

Yes, if legal assistance is given, it extends to all appeals.

A fresh legal aid application must be made to the court hearing the appeal.

15. If I qualify for legal aid, can it be withdrawn before the end of the trial (or even after the trial)?

The legal aid bureau can terminate secondary legal assistance before the end of the case where the recipient no longer meets the resources conditions or is not taking an active part in defending his interests.

After the end of the case, the State can recover the amounts paid to the lawyer from a recipient of secondary legal assistance in the event of a change in their assets, income or outgoings, or if the assistance was given on the basis of false declarations or of any other fraudulent means or if any profit is gained from the involvement of the lawyer appointed to their case since then and legal assistance would not have been granted had that profit existed at the time of the aid application.

As regards legal aid, the State can recover any advances paid in the event of a change in the recipient's assets, income or outgoings since the legal aid decision and he is now capable of paying.

16. If I do not qualify for legal aid, can I appeal against this decision?

An appeal can be brought against a legal aid bureau decision refusing to allow secondary legal assistance in the Industrial Relations Court within one month following notification of the decision.

Decisions by the judges of the peace, the police courts and legal aid bureaux on legal aid can be appealed against. The appeal must be brought within one month following the decision by reasoned application to the registry of the appeal court (see page on “Organisation of Justice” ).

Further information

Further information on statutory provisions and regulations on legal aid cited on this page can be found at the “Service Public Fédéral Justice“ (SPF Justice) site.

Select your language (FR/NL/DE), then click on “législation consolidée” (législation en vigueur) which is a sub-category under “Sources du Droit” . This brings up a search window: enter your search strategy, then click on “recherche” followed by “liste” . A list of laws and regulations will appear. Click on “détail” opposite the one that interests you and the text will come up on your screen.

By way of example, to find section 664 of the Judicial Code: when you are in the search screen, enter “Code judiciaire” opposite “nature juridique” (you can select it from an alphabetical list by clicking on the arrow at the right side of the box). Then enter the section (article) number (664) in the “mots” box. Click on “recherche” then on “list” to bring up the search result. When that appears, click on “détail” (on the right of the screen) to read the text you were looking for.
Other information (organisation of courts, court decisions, etc.) can, be accessed at the same site.

Apart from the SPF Justice site, information on legal aid can also be found on the sites of a number of legal professional organisations such as the Vereniging van Vlaamse Balies nl: (click on “Juridische bijstand” ), l'Ordre des barreaux francophones et germanophones fr: (click on “Coût” under “Avocat” , then click on “Aide juridique” ) and the Fédération royale du notariat belge in Dutch or in French.

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Last update: 17-08-2004

 
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