The applicant organizations all work with recipients of legal aid services. The organizations' representatives observe that, since the law came into force, people who are entitled to legal aid are experiencing great difficulties in having a lawyer appointed.
The new law includes an in-depth reform of the legal aid system:
- The access to legal aid is restricted: even a person who receives social aid from the government is no longer supposed to be entitled to legal aid and must prove its indigence with supporting documents.
- For each lawyer appointed and for each court proceeding, a contribution must be paid (20 euros for a lawyer and 30 euros for a court proceeding). Even people who receive a totally free legal aid will have to pay. This means that in the event of a complex judicial proceeding, the total amount can be high as for each new court proceeding the litigant has to pay 30 more euros.
- The compensation system for lawyers working as part of the legal aid system has been fully reviewed. No information neither guaranteed has been given regarding the amount of the compensation they will be able to receive. Lawyers concerned by the reform will only know about their remuneration (for the services they are currently offering) in mid-2018.
This new system therefore causes excessive administrative work for both litigants and lawyers. Indeed, litigants must now prove that they do have adequate "livelihoods," which amounts to providing negative evidence (and which is very difficult to provide).
This means that people who are already vulnerable are required to undergo complex procedures in order to collect materials, without any guarantee that the appointment of a legal counsel will be accepted in the end. In the event of an urgent case, it is very likely that the lawyer will not be able to do their work in time. In view of this situation, some people even give up and do not claim their rights.
As far as lawyers are concerned, they are not compensated for the support and advice they offer to their clients regarding the steps that must be taken in order to be appointed a lawyer, even though this support involves several meetings with the client and several exchanges with the Legal aid office.
...or no counsel at all
On top of that, lawyers do not know about the amount they will be paid and their remuneration is being devaluated in the majority of cases. As a result, many lawyers refuse to work within the legal aid system.
For example, the "over-indebtedness" department of the Francophone Legal Aid Office of Brussels saw the number of its permanent lawyers drop by half since the law came into force on September 1, 2016. This department is now thinking about shutting its doors. This will mean that the Francophone Legal Aid Office of Brussels will no longer be able to appoint a lawyer for someone who is over-indebted (the litigant would just have to stand on his or her own feet!). Furthermore, a similar situation is likely to occur for most of the departments of the office.
In response to this observation and the concrete difficulty to find lawyers who are willing to support their clients, about 20 organizations decided to challenge this reform. Several of them had already challenged the execution decrees of the law before the Belgian Counsel of State (the case is still pending). An appeal was also lodged before the Constitutional Court on January 17, and the proceedings are expected to last for several months.
Signatories (applicant organizations and supporter organizations) : Aimer Jeunes, Association de Défense des Allocataires Sociaux, Association pour le Droit Des Etrangers, Association Syndicale des Magistrats, ATD Quart Monde en Belgique – ATD Vierde Wereld in België, Atelier des droits sociaux, Belgisch Netwerk Armoedebstrijding - Réseau belge de Lutte contre la Pauvreté, Atelier des droits sociaux, Bureau d’Accueil et de Défense des Jeunes, Défense des Enfants – International – Belgique – Branche francophone, Intact, Fédération laïque des centres de planning familial, Ligue des Droits de l’Homme, Luttes Solidarités Travail, Organisatie voor Clandestiene Arbeidsmigranten, Point d’appui, Réseau Wallon de Lutte contre la Pauvreté, Service d’action sociale bruxellois, Service international de recherche, d’éducation et d’action sociale, Syndicat des Avocats pour la Démocratie, Vlaams Netwerk van verenigingen waar armen het woord nemen, Vluchtelingenwerk Vlaanderen, Woman’do.