Proposition 54K1819

Projet de loi modifiant le Code judiciaire en ce qui concerne l'aide juridique.

General information ¶

Submitted by

MR Swedish coalition

Submission date

May 4, 2016

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

lawyer professional society legal expenses legal aid judicial proceedings access to the courts indemnification

Voting ¶

Voted to adopt

CD&V ∉ Open Vld N-VA LDD MR PP

Voted to reject

Groen Vooruit Ecolo LE PS | SP DéFI PVDA | PTB VB

Party dissidents ¶

• Hans Bonte (Vooruit) abstained from voting.

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Discussion ¶

June 29, 2016 | Plenary session (Chamber of representatives)

Full source

The rapporteurs are Mrs Becq and Mrs Özen, both of whom refer to the written report.

Thank you for coming here at this late hour.

However, within the framework of the government agreement, you have found a balanced compromise with a view to the reform on second-line legal aid, while still having to balance the interests of a number of groups. In the first place there is the interest of the applicant himself, in the present case he who does not have the financial ability to pay legal assistance. In addition, lawyers should also be properly remunerated for the quality of the services they provide. Finally, as a Minister, you must ensure access to law, which is a constitutional right, within the framework of the budget, taking into account its impact on the taxpayer who contributes, so that everyone actually has access to the right.

The affordability of the system has been under pressure for fifteen years due to a huge increase in the number of files. The budget has tripled since 2003 from 23 million euros to now approximately 75 million euros. From this autumn, there will be two more invoices, the first due to the extension of the Salduz legislation, which applies to all aid and not only at the first hearing, the second due to the migration crisis since last summer.

The affordability of the pro-Deos system can, according to our group, only stand up when we work on two tracks. On the one hand, there is the approach to abuse by both law seekers and lawyers. It may be a minimum, but we must work on it. On the other hand, a structural adjustment is needed of what is now called a semi-open but usually closed envelope.

The reform is already working on the fight against abuse and overconsumption. Therefore, the sanctions against lawyers are extended. One no longer follows a black-and-white rejection, in which one may be on the list or removed from it; there are possibilities for suspension. In addition, there is the flat-rate contribution, the so-called brake money, and the middle test. From now on, all means of subsistence, all assets, and not only income, will be counted. We congratulate that.

We have also submitted a number of legislative proposals with accompanying measures that will be added to the chapter on informatization, which will reach us after the session in the Justice Committee.

The framework is there now. Of course, a number of tools must also be provided to the legal aid offices in order to be able to check the livelihoods. Give the employees of those offices access to the databases so that they can perform the middle test effectively.

We continue to share the concern for fair and fair remuneration for lawyers. This benefits not only lawyers, but also applicants, who are entitled to quality assistance. This quality of assistance must be guaranteed and guaranteed.

Unfortunately, over the last ten years, this rate has remained unchanged. The bill establishing the Second Line Aid Fund now provides for a structural adjustment of the semi-open envelope. That proposal, which had already been submitted for discussion in the previous legislature, has already been explained and dealt with and will soon be voted on in the committee. We are pleased that we now get the support of the majority and hopefully the opposition as well.

We remain in favour of a single central database for the agencies, a structural periodic review of the nomenclature, which will be amended on the following day, and an external sampling of performance.

We may also consider a trapped brake money, a point that has been touched at a time in the committee, in the first evaluation.

The most important thing, I think, is that the pro-Deos system after the reform remains reserved for those who really need it. The responsibility of the lawyer and the lawyer is a priority.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. We were told not to know whether we should intervene on Wednesday or Thursday. They said, “Tomorrow.” We are already Thursday... For a matter as important as the project “pot-pourri”, I remember being also intervened during the night. Stop the joke!

Access to justice is a fundamental right in our society. It guarantees that everyone, regardless of their income level, can claim their cause before the courts and therefore can simply defend themselves. Without accessible justice, the laws we vote for would remain dead letter. This is one of the essential conditions of our rule of law. The resolution of conflicts cannot be abandoned to the arbitrary and the law of the strongest. It is also a guarantee of equality among all citizens. If only the most foolish have the means to enforce their rights, the rights of the poorest would be but empty concepts. That is why the State has the obligation, Mr. Minister, to guarantee and organize this access to justice for all through legal assistance.

As repeatedly recalled, it is a fundamental public service in a democracy, the access to which cannot be restricted, even in the name of budgetary considerations. Nothing is free and the current system is not perfect. We know it perfectly.

As of today, many justiciables are, in fact, excluded from legal aid, since due to the rates, they are considered to be too wealthy to be able to benefit from legal aid while in reality they are too poor to offer themselves the services of a lawyer. By the way, lawyers also experience difficulties, as they sometimes have to wait more than a year before being paid. We know, furthermore, that the amount they are supposed to collect remains uncertain, so much that field associations denounce the inability to find lawyers sufficiently specialized in complex subjects.

The orders of the lawyers estimate that the point should reach a value of 75 euros to be just then, that today, it oscillates around 25 euros. The closed envelope, which is the current system, would require dividing by three the number of cases handled by the legal aid offices to reach that amount. The ticket moderator will never allow to meet this request. The only certainty that this project offers is the exclusion of a part of citizens from effective access to justice, as the moderator ticket will play its role and will moderate access to justice for certain segments of the population.

The sole consideration of this exclusion will be financial and will in no way have a link with the quality of the appeal that would be abusive. However, the moderators ticket is sold to us as a necessity to fight against abusive appeals. It would even be these abuses that would explain the increase, each year, in the use of legal aid. This is how it was discussed and this was discussed in the committee. This is what worries me most: the poor would abuse the gratuity to initiate procedures at all-va and without a valid reason.

As is often the case in the Justice Committee, the hearings were not lacking interest. Indeed, on this occasion both the platform "Justice for All" and the two orders of lawyers contradicted the government. The number of appeals “for nothing” – as you called it – to legal aid is insignificant. No, there is no overconsumption. Abuses are on the margins and are insignificant, this has been repeatedly recalled.

So what is the interest of creating a moderator ticket if there is almost no abuse and when there is abuse, they can be discarded by the legal aid office on the basis of article 508/14 of our Judicial Code. As I have already said in the committee, the conflicts that will now escape the courts and the courts are the small conflicts, the small injustices, whether by the sum or by the interests at stake. In the eyes of the government, these small cases are not in the interest of justice. I wonder what title! What is a small conflict and especially what outcome will these small conflicts have?

Again, I find myself compelled to recall an obvious thing: behind an unpaid electricity bill, there are often choices and unfortunately sacrifices. Those who have the most difficulty joining the two ends are also those who do not know their rights the most. However, the moderator ticket will amplify the defenses in court without a lawyer. Today, given the increasing complexity of law, to find yourself in court without a lawyer is to fall into an arena without a weapon or a shield. How can we talk about misconduct in the proceedings or prescription deadlines without lawyer training?

I also had the opportunity to remind you of this in the committee. The many “pots-pourris” and the reforms you have undertaken require more and more that complaints can be ⁇ when applying. More and more people are demanding to have technical knowledge when they no longer have the means to pay for a lawyer. We believe that the majority is no longer in reality since asking for help in dealing with a trial is already a road of trouble. The platform “Justice for All” has recalled it. The discomfort, shame and ignorance of its own rights and alternative solutions hinder the justifiable in his actions.

Here, the government adds a financial barrier that can only worsen the situation. The gap between reality and the ivory tower in which you seem to live is even more screaming when MEPs declare that 50 or 100 euros is a symbolic amount. When it is known that people fail to close their end of month and calculate, 50 euros claimed at each level of the procedure, it is not a symbolic sum. The moderating ticket reinforces a justice experienced as exclusively punitive by the weakest. Some social categories, although they also know the injustice, lack of means, they sit only on the defendant’s bench and almost never on the applicant’s bench.

Nevertheless, as we know, justice is never stronger than when it is accessible to all and everyone can freely assert their rights there. Many of us have not failed to remind, this project is increasingly removing the justiciable from the lawyer and thus weakening the protective role of the state, its legitimacy and the rule of law.

Another reform, the draft provides for taking into account all the means of subsistence of the applicant and not only his income.

Let’s admit, the idea is quite attractive. Is it really logical that renters or large owners benefit from free legal assistance? Of course, I do not think so either. But the hearings and the State Council raised important questions that the project does not answer, to such an extent that we are putting here a false good idea into practice.

The reform raises two questions. First, what does the notion of means of existence encompass? Then, once this notion is eventually defined, how can we verify it? To my great regret, there is not yet a register of heritage. It does not seem that the government has planned to introduce one soon. So, on whom will this new definition weigh?

Mr. Minister, you have announced for the return a bill that will organize the exchange of information between the legal aid offices and the administration. I admit, this will is praiseworthy. This is a very ambitious approach on your part. But we have reasons to be skeptical, since we are, for example, still waiting for the bill that was meant to restrict preventive detention. We are looking forward to him with impatience.

In the absence of a simple and quick process, it will first be the legal aid offices who will bear the consequences of this new definition. It is unimaginable for legal aid offices to conduct social investigations, which require the means and skills that they are unfortunately lacking.

It is therefore understood that there will be an additional documentation to be provided by all applicants. To the financial obstacle of the moderator ticket, which I mentioned before, will be added an administrative obstacle. This is another obstacle to access to justice, which will once again discourage many citizens from asserting their rights or simply defending themselves in court.

As a committee, Mr. Minister, you have not been able to give us figures on the 215 000 cases handled each year by the legal aid offices. How many have been for the benefit of people whose means of subsistence would have allowed them to directly resort to a lawyer, all these famous cases where there would have been abuse?

Is the administrative burden on all applicants justified in the light of the abuses of some? It has also been said, and you know that we do not fail to remind it when positive elements appear in your projects, there are positive advances such as the expansion of disciplinary skills and bar controls. However, my group and myself cannot support this text as the government proposes a project that fundamentally impedes access to justice by weakening our rule of law. It is the opposite of the very notion of solidarity. It demands solidarity but between the poor in order to better exempt the income of the poorest. It’s really something that bothered me and came back into the loop at the commissions, the weakest is presumed scammer and profitor while all the field actors agree that the number of abuses is insignificant. They recalled it well, Mrs. Uyttersprot, the abuses are on the margins. Therefore, we cannot support this text, which is fundamentally anti-social.

Mr. Speaker, Mrs. Özen, as I just said, the budget between 2003 and 2013, over a ten-year period, has tripled, while the number of files has absolutely not increased. That’s not a fairy tale, it’s a mathematical calculation: those who rely on the system start more things than it used to be. They come to court faster than before. That is a determination.

In connection with those abuses, we also do not say that half of the users of the system – both lawyers and prosecutors – do. It is about the fact that those abuses are there. Many members of the Justice Committee have worked pro Deo, they know that people with the smallest claims come to the office, often with claims of 50 euros, for which a paying customer does not even get to the office. There is a lightly appeal.

I understand that for some people that brake money will be a lot of money, I understand that. Justice is not cheap. The barrier is for everyone. No one goes to justice for his pleasure. For someone who earns 1 500 euros and has to pay 1 000 euros for a divorce, that is also very much money and he does not do it with pleasure. But he must pay for that too. If a small flat-rate contribution is requested here now, that is very reasonable. There will also be exceptions. I do not think that we are inhuman.

You actually justify the increase in pro deo files by abuse. I hear you say “small affairs” or “that lawyers and the justiciable who resort to all-va must be held accountable.” The controls already exist. You are talking about Pro Deo. When I was doing pro deo, we were there waiting for people and when they came, their conditions were checked. Lawyers will not appeal for the pleasure of appealing. At some point, as with any lawyer, it is questioning their loyalty and also their intellectual honesty. Whether pro deo or not, a lawyer will never incite his client to initiate a procedure that will make him waste time and money. It may be that, sociologically, people appeal to justice much more because they find it difficult to settle their disputes amicably. It is one thing. I am not explaining it. I am not a sociologist. But to say that the increase is due to abuse, in this case to abuse of people who do not have the means, the weakest and those who appeal to pro deo, it is unacceptable! This was reminded by the Order of Lawyers, by the platform "Justice for All" which still includes twelve associations. They said that abuses were on the margins. It’s not me who says it, it’s this platform.

Mr. Speaker, I would like to tell Ms. Uyttersprot that the Court of Auditors has provided us with the answer to her question regarding the increase in the budgetary envelope required for legal assistance. She gave us three reasons to explain the explosion. The first is the economic crisis that has hit a class already precarious, which is more precarious today and which is more numerous. The second reason is the explosion of the files due to the introduction of the Salduz Act into our legal system, which calls on the lawyer in the context of legal assistance from the first hearing in the police offices. Finally, the third explanation is a slight increase in the ceiling from which the legal aid intervention was granted. These are three objective reasons that have been mentioned by the Court of Auditors. There is no need to go elsewhere to look for estimates and explanations.

According to what Mr. President has just said. Brotcorne which perfectly summarized what we heard in the committee, I would say that we also noted in the committee that this is the only study of the INCC. Ms. Özen, we know the problem of statistics. We have quantitative data but never qualitative, that is, behind this sum of files, we do not know the reality.

What shocked us in the commission was the use of the word “abuse.” It seems that abuse is always going in one direction. We were told in response that we were well aware on the part of the majority that there were sometimes administrative authorities that abused, who withdrew acts, who filed them. I think that in this philosophy it is necessary to take responsibility. Who is to be held responsible? Those who say they are abusing. It is this one-sided side that is really shocking and is not based on any numbers. During the hearings, of course, we heard what was said by the actors on the ground and we did not receive the proof that real abuses are committed as described by the supporters of this text.

Mr. Speaker, Mr. Minister, in order for the members of the Justice Committee to arrive on time, the plenary meetings must be held around 00:30. As Mr. said. We are more in the committee than in the plenary at this time.

The debate has already been well conducted but some elements have not been highlighted in the framework of these first expressions. It seems that no one will benefit from free access to justice anymore. It is not caricatural. A series of conditions are ⁇ ined to ensure that persons who are listed very precisely, in very specific situations, can continue to benefit from free access to justice.

I am also very surprised to hear that “responsibility” has become a word that cannot be used. It does not seem to me to be abnormal, in the face of an intellectual act that is being made, to ask people to simply ask themselves the question of whether or not we will initiate a legal proceedings. It has been noted that some people sometimes find it unfair, because they are on the other side of that threshold that allows or does not allow legal aid, to say "I have someone in front of me who will benefit beyond the normal free of charge of justice, while I have to pay." In some cases, this injustice is quite unbearable and difficult for people who, unfortunately, are the victims.

It was never said in the majority that 20, 30, 40 or 50 euros were ridiculous sums. I have not heard this in the mouth of my colleagues of the majority or in the head of the minister. We heard the orders of the lawyers who told us to support this project. We also heard the legal aid offices tell us that it was important to maintain the right of individuals, in exceptional circumstances, to benefit from this free assistance. We are not faced with a blind law, which considers that we only have to get everyone to pay for the few people who would have abused the system. This is absolutely not the case here.

The will of the law is also to perpetuate, by making all persons who resort to justice accountable. Responsibility is not a big word. We ask, at the level of MR, and ⁇ other groups have done or will do, to go further in the work. We have this famous will, which is, I think, shared, to create an insurance system, which is not easy to create, and which makes sure that this action can be financed in court. We are working on it, but it is better to take a little time than to come up with a project that would not be fundable and that would not hold the road.

Mr. Goffin, I am pleased that you address this aspect of things. by Mr. The minister told us that he would probably come in September with a project on insurance. I allow myself, however, to draw the attention of those who remain in this homicide on the fact that, recently, we had the opportunity to vote on a text that the Justice Committee had adopted unanimously, a proposal that I had submitted and which allowed, for all those who are beyond this ceiling and who cannot access legal aid but for whom the cost of justice remains a barrier, to impose on insurance companies that already practice it for the designation of the lawyer, to grant this free choice for all other ways of resolving conflicts.

This could target mediators, experts, arbitrators. What went on as being something interesting and important to deal with access to justice. We saw all of a sudden that following the lobbying of Assuralia, not to name them, through a minister in charge of Consumer Protection, this text went backwards and returned to the Justice Commission where it will have to be retired while there was a start of solution for all this fraction of the population you are talking about.

Because at one time a lobby was stronger than a unanimous committee of Justice and a parliament that could vote on this text, it was removed and no progress was made on a topic like that while it cost nothing to anyone and it allowed some to cover themselves in the face of the importance of the costs of justice which are those calculated today when one must start a procedure. That is really a pity.

I think we all share the same desire to come one day to a real insurance legal protection system. We are working on it. At some point, we should succeed. You know, in the Justice Committee, too, we have the will that the proposal to set up this aid fund be also fueled with debate. The case will be reviewed with the opinion of the State Council. It will not be discussed next week in the committee but next week, that is, before the parliamentary holidays.

Mr. Speaker, you understand, we will support your proposal.

Mr. Speaker, Mr. Minister, colleagues, much has already been said about this proposal regarding legal aid. Not only in this but also in the previous legislature has been regularly discussed that a change in that legal assistance should be possible. On the one hand, the assistance must be kept affordable and access guaranteed, but on the other hand, the lawyers must also be paid a reasonable remuneration. This is a discussion that does not date from today.

Many of the proposals, which are included in this bill, were already examined during the previous legislature. These are also proposals made by the lawyers.

I will be brief, Mr. Minister. I will only talk about the elements that we are happy with.

You continue to guarantee accessibility and this despite the fact that the brake money is not exclusively linked to abuse, as one would nevertheless want to show. I went into the report to search, using a search function, how often the word abus was used and I actually found it quite often, but then especially among the members of the opposition and once in someone of the majority. The people of the platform also used the word often.

In the long run, it is said that the brake money is there to counter the abuses. I believe that the brake money has not only come to prevent abuses. There is a need to introduce a certain responsibility, as in health insurance.

At the same time, I would like to point out that in the text it is stated that some persons are exempt from the payment of the contribution. In addition, an exemption from the contribution is provided if the aggregation of procedures would result in less accessibility or if the amount would be too high. Then it can be decided that no brake money will be paid. Accessibility is thus guaranteed despite the introduction of a certain responsibility. This responsibility also applies to both the applicant and the lawyer’s profession. After all, there is also a certain quality control and the possibility for the lawyer to indicate that he can no longer create added value in the procedure.

He is also responsible for the resource research, which is also an important element.

We are also pleased that you explicitly emphasize mediation, Mr. Minister. It is always said that there are too many trials. Indeed, there are a number of factors that lead to more lawsuits. I think of Salduz. In addition, we live in a society where everything is legalized and where people often talk less with each other, while at the same time we find mediation important. This aspect is also reflected in this draft, which specifically asks for the lawyer and at the same time also for the proceedings. This means that it should not be paid in the event of mediation. We hope that this will be further extended in the nomenclature, also giving clear points when mediating. Mediation can sometimes take longer and be more intense than just a procedure. I think it is important that this accent is also included in the nomenclature.

The emphasis is also on those who have a slightly higher income than that for which one is currently eligible to benefit from legal assistance. This is the perspective of legal aid insurance. We look forward to this, although it is not a simple matter. After all, one should avoid starting more procedures because one has a legal aid insurance. Therefore, a mechanism of accountability should also be sought.

Finally, I believe that it is equally important — which we have also touched upon during the discussion — that first-line assistance is developed in a proper manner in consultation with the Communities. This can prevent people from initiating a procedure too much or too easily, while this is not always necessary. On the basis of clear information and services in the first line assistance, they can also get their right, together.

Mr. Minister, we cannot but express our disappointment over the present draft on the legal second-line assistance, following a number of speakers during the hearings. It is clear that both the representatives of the legal profession and the representatives of the entitled persons had serious concerns with the draft.

The great plus that we find in your design is that it is done away with possible abuses of the system by from now on charging all means of subsistence in order to enjoy or not the pro-Deos system. It is only not so clear to us how the means of subsistence will be charged. This is a consideration which, by the way, was also raised by the State Council, since the concretization of this will be fixed by a royal decree and a precise text of it was therefore denied the committee.

At the too low income limits to access the pro-Deos system, nothing changes. However, indeed, a so-called brake fund, which has already been discussed in detail here, is introduced in the head of the user of the pro-Deobijstand. In itself, this may be responsible for pointing the user to the fact that he is enjoying a public service and if it is a purely symbolic amount. However, the question arises whether the aforementioned amounts, in particular 20 euros for the mere appointment of the lawyer and 30 euros per unit, are still symbolic for someone with a very modest income and, for example, rent charges. All in all, we understand the fear expressed by the organizations that speak on behalf of Law for Everyone that even more people than now will decline if they have to stand up for their rights or if they want to defend themselves with the assistance of a lawyer.

Whoever will be able to do so in the future is the lawyer itself. From the bills came a very clear warning that lawyers are leaving the pro-Deos system because the compensation for this assistance, which is otherwise only paid one and a half years after the performance provided, would not be socio-economically viable.

Alleszins fears that the legal profession will still have to settle for years with a fee of 25 euros per point, while it itself predicts a fee of 75 euros per point as a salary for work.

Furthermore, the group and, by the way, some majority parties expressed express concern over the announced, but again unknown, reform of that point system.

In short, Mr. Minister, you are asking Parliament to approve a bill on which there are still a lot of questions.

We understand that you are asking for the confidence of the majority, but you really should not expect the same attitude from us.

Dear colleagues, we have been waiting for this debate for a number of hours, but we have not resisted the pleasure of staying in session, Mr. Minister, to talk about a topic that concerns us: justice.

The circumstances are very different from the Commission. I feel like I’m taking you from above. While in committee, we have had the opportunity, both through hearings and debates, to clarify several elements. It seems to me that there is a relative consensus, despite all, beyond the good minority that we are and the bad majority that you are, to recognize that the issue of access to justice, especially for the most precarious, is an important issue in our society.

During the hearings, we could hear at least two camps: the camp of those with whom you had obviously negotiated: the representatives of the councils of lawyers and the Others. The first seemed rather pleased with the agreement they had reached since, in a context of a closed envelope and therefore of a relative decrease in the financial level due to a sharp increase in the number of cases but also to the impact of the application of the Salduz law, among other things, in a context also where it appears increasingly difficult to find lawyers who launch in pro deo, the negotiation focused on the idea that a legal aid fund could, in the end, exist next to the budget, registered each year in a closed envelope.

Mr. Minister, I think that in the discussion, ⁇ constructive and interesting that we have had, we find ourselves not with two texts but with one text.

What is happening? On the one hand, we have a project that enters into a process of accountability. I agree, the project does not speak of “ticket moderator”. It is rather an external convenience that has called it so. Who and what do we really want to moderate? But there is a process of accountability to combat what some call abuse. But this process, which is implemented in your text, actually consists in making sure that the number of acts made and the number of procedures initiated decreases.

Are the results qualitative? Do we address those who need it most in our society? However, this remains a mystery. For the bars with whom you negotiated, the obsession was to have this text vote so that it would come into effect on September 1 this year. You, Mr. Minister, probably still need to draft resolutions following the vote that we are waiting for on this text and that should be taken before implementation on 1 September.

On the other hand, let us talk about the other negotiation, Mr. Minister, that I call the Other, which took place within your majority! And you have had the good taste to leave that to the MPs. I was not there. I don’t know how that happened, but in view of the outcome, I think it wasn’t easy. Today we find ourselves with a single text and you have to tell those with whom you negotiated, namely the lawyers’ representatives, the promise that was behind the text, “the carrots and the sticks.” Yes, the expression is often used, Mr. Miller, but it’s still what I found best! I looked in the books, but “the flesh is sad, unfortunately!” I still had to find a carrot, and that beautiful carrot was a budget fund. The fund is in the State Council. And this fund would only be fed by criminal fines and some are wondering if all this is correct from a legal point of view.

Read the opinion of the State Council. It is not until today, at the moment, Mr. Minister, where we vote this text, where Mr. Miller may vote for it, it will be necessary to go and explain to the lawyers that the famous promised fund is for the moment a chimera that, one day maybe, the time comes, will take the form of a real fund, powered one does not know how and which, by the way, will contain an unknown number of euros. Behind this arises the question of the value of the point and the value of what you have traded. I have the impression that the lawyers with whom you have negotiated must ask themselves today a number of questions because your majority obviously took a lot of time and experienced a lot of difficulty in agreeing on this fund, creating it and implementing it.

Behind this, of course, there are a whole series of other questions. We are talking about the second line. I was ⁇ interested in what Ms. Becq said, who was also sensitive to the argument on the front line and the fact that speakers, during the hearings, told us that this too, it is today a competence of the Communities, but in this somewhat complicated, somewhat hybrid country, there are always institutional negotiations that leave small stones to other levels of power. The small stone is the Judicial Code. The article that deals with first-line legal aid is still an article of the Judicial Code that can be evolved here in the federal.

And here, we have clearly heard, Mr. Minister, all that you said in committee about the fact that you were going to get in touch with the Communities. One can only engage in this, especially since the issue of access to justice is often also a question of language. The choice of words and their scope is also the ability to find them before even the lawyers. So much better if there are lawyers and pro deo lawyers, but in advance, it may be better to avoid them. Sometimes it is very good. Avoiding judicial proceedings while finding the right recognition of the grievances we had, is always this gain for the citizens but also for the whole world of justice. So I think the first line is a very important element.

You have understood it, we do not like this text because we have the impression that it is too focused on accountability, on abuses, on everything that has been described as negative and that some have again emphasized here and that we had already mentioned in committee. We have submitted amendments that are quite similar to those submitted in the committee.

We feel that there is still a last chance. It is minimal, but we will try it, to make sure that we no longer always put the weight of this responsibility on them.

The real challenge, Mr. Minister, dear colleagues, is the evolution of pro deo in the future, it is the ability to arouse vocations. This is the most important, beyond the discussions we have today. Will the system you put in place tomorrow be attractive enough, performing enough so that there are still enough candidates in the world of lawyers, people who have the vocation to say to themselves: this is an important work to be done for the good of society, for the need of the precarious? I think this is the most important element, the one that we will have to keep in mind.

I hope that beyond the text – this one, but also the second, the one that is always expected, the one of the background – we will have the ability, dear colleagues, to evaluate. We have no doubt that this text will be adopted by a majority. But tomorrow, we will have to try to understand the results that its application will generate. I hope that very soon we will put in place the tools to better understand the reality.

You know my concern for statistics, not for themselves, but to allow us to better understand the real, to better understand what is hidden behind the numbers: the misery of some fellow citizens, the difficulty of access to justice; and to check whether, yes or not, there is an improvement in the possibility, in our society, for the most precarious, to access justice, and to maintain this fundamental right, as defined in our Constitution.

You will understand, we will not approve your text. We have submitted amendments and you know our goal.

Mr. Speaker, Mr. Minister, dear colleagues, I feel that we are discussing a very important topic in a back yard of boutique shoppers. Congratulations to those who are still there and who are still there to follow our work!

We are talking about legal aid. What is it ultimately about? It is a mechanism that should enable those who can claim it to access justice, regardless of their fortune. It is an individual right, it is a personal right, it is a consecrated right that must be available to all who live on our territory. It is a beautiful symbol as that of legal aid, where a profession puts itself at the service of the most disadvantaged of the society and arranges or, in any case, arranged here even a few years ago at a rate quite free as a professional organization to come in aid to this category of justiciable.

At one point, the State had joined this effort by financing it in part. Today, we have a big problem, which everyone admits: that of the budget envelope available. Why Why ? As previously stated, there is an explosion of the records. It must be able to cope with it, guarantee access to justice for those who can claim to it insofar as they meet the conditions for receiving legal aid and, finally, guarantee a decent remuneration to those who provide the service, namely, mostly, lawyers.

This is the case, and we need to try to find political solutions. It can be imagined that these solutions go through a refinancing of legal aid. Without refinancing, there is no sustainability of the system, Mr. Minister, although this is an element to which you attach a lot. We are at risk of missing away from this other element that you like too much, the social dimension of justice. When we see the text that is proposed to us, the preamble, the motivation, the discussions in the committee, we have the feeling that those who support this text consider that they can only do it in the way they do it because, if there is danger in the home, it is because there is overconsumption. We have not heard so much the word “abuse” but rather the word “overconsumption”.

I will say it in a caricatural way: the poor who can claim legal aid are, by nature, people who overconsume and who appeal to justice for everything and for nothing while this is not always justified. Therefore, this overconsumption may need to be restored. At the same time, it seems obvious to some that some lawyers who provide legal assistance exaggerate in the proceedings in such a way as to accumulate points. And whoever says accumulation of points says accumulation of fees. We feel that these two problems, probably minimal, underpin the text that is proposed to us.

What are the recommended solutions? Responsibility, as others have said before me. Responsible to whom? Users, the poor, lawyers, service providers. Furthermore, we are committed to developing the best possible alternatives to conflict resolution, which we support. But there is no trace of funding for these alternative modes of conflict resolution. We want them out of the judiciary so that they do not or do not go into legal aid. There will be so many procedures that no longer will need to be followed, but besides that, we do not have any means of funding planned.

The real problem is the financing. What do you propose, Mr Minister? What does the majority propose to us in relation to this, once it has made its findings, identified those responsible for which we should rethink things? Responsibility is the question of whether "I, the public authority, refinance legal aid" In the project that is submitted to us today, I see nowhere any trace of a budget commitment by the Belgian federal state aimed at sustaining the legal aid system and ⁇ considering its development. In fact, as I said in the committee, the state disengages itself from legal aid.

It will guarantee the current envelope, we will remain within the framework of a closed envelope. But to try to make some recipes that will allow this system to continue to live worthwhile, you come up with the idea of making beneficiaries participate in the financing of this legal aid. This is what has been called, probably wrongly, a moderator ticket, but it is not known whether it will be 10 or 50 euros. You leave the possibility to fix the price by royal decree. You also imagine that the bars will have to deepen the checks that they will make the means of subsistence of the person likely to benefit from legal aid, which will generate a work overload. And the third element, as Mr. Cheron, we don’t have today: the creation, on a parliamentary proposal, of a legal aid fund that would be borne only by criminal convicts. This text is not here today. We will probably discuss it again in a few weeks or when we return, depending on the time the State Council will take to answer us and the work of our commission. Today, we are discussing legal aid without knowing what its funding should be and we will discuss it again at that time. We will be working on the same topic twice.

Your answer is not a budgetary and financial response, although you make this difficulty a financial problem. Your response is made of symbols.

This is a word I have heard. These are symbols that we are going to hang on. I would like to review them quickly because a lot of things have already been said. The first of these symbols is to say that the beneficiaries must participate in this financing of legal aid. It is the introduction of this contribution, not to mention the "ticket moderator", charged with the beneficiaries and therefore the most deprived. We are far from mutualizing the cost of access to justice. This particular access to justice, which is that of legal aid, is weighed on those who are its beneficiaries, in any case at least in part.

It is not merely said that this intervention will exist at the time of the appointment of the lawyer on the occasion of the first consultation but it will be repeated as many times as there will be procedural acts that will eventually be submitted in the context of this case. So it is not once, but it can be two, or even three times that this moderator ticket will be claimed.

Mr. Minister, you could not be insensitive and deaf to all that was said on the occasion of the hearings by the representatives of those persons who are beneficiaries of social assistance and for whom, whether 10 euros or a maximum of 50 euros, it is a expenditure that is considerable and whose effect actually risks to see them renounce to seek legal aid to initiate a judicial procedure or ⁇ even to defend themselves in the framework of a judicial procedure that is diligent against them.

Because they will consider it a cost that they cannot afford. This is a barrier to access to justice for a category of taxpayers while access to justice is a constitutional right that must be guaranteed. That is why this imposition of a contribution is shocking because it puts the already precarious beneficiary in charge of intervening in the financing and because it will probably hinder him in the access to justice that must however be guaranteed. This is the very principle of legal aid.

I know that your tendency and the tendency of the majority and that of the government is to say that the less there will be legal proceedings, with or without legal aid, the less there will be interventions to be made in the financing of the federal justice service. It may require fewer magistrates, probably fewer employees, fewer audiences to devote and therefore fewer costs. The idea is to make sure that as few things as possible happen before a judge. If it is replaced by other types of conflict resolution, this is a hypothesis that can be considered. But if one merely says that it is a hypothesis considered without being able to finance it – I think for example of mediation – it doesn’t make much sense. Therefore, access to justice is endangered by imposing this contribution. Like other colleagues, I will therefore re-submit an amendment aimed at removing this article 7 or, in any case, that part of the article that aims to impose that contribution which, for me and for my group, is a major social downturn.

Everyone here knows very well that it is not this measure that will contribute to the financing and refinancing of the necessary legal aid.

I come to the second aspect: the remuneration of the lawyer. Mr. Minister, you will admit that we, parliamentarians, are in absolute uncertainty. You tell us that the goal is to guarantee 75 euros as the value of the point. Today it is in a closed envelope. We are unable to appreciate it because we do not know the nomenclature that is at the basis of the allocation of points. On several occasions in the committee, I have asked you for this information and I have asked Mr. the chairman of the commission to request this document, which is at least in discussion within your office, otherwise you could not decently come to present such a text.

It would have been interesting if the parliamentarians had it, because we could have thus verified whether the promise that was made to the orders that negotiated with you – and which concerned a remuneration worthy of the professional act and representative of the service – went in the direction of what is desirable. It is in fact a matter of guaranteeing a significant participation of lawyers in legal assistance and, furthermore, a involvement of competent and concerned lawyers to ensure that the client entrusted to them by this means is treated as best as possible and can be sure that the lawyer who has been appointed to him or to whom he uses will act with all the necessary competence and diligence.

In the current state of affairs, parliamentarians are unable to appreciate this point system and say if you have managed to get a decent remuneration for the bar profession. I doubt this a lot because this is not the first time we are discussing legal aid. During the previous legislature, we had started this discussion with Ms. Turtelboom and at the time, prominent members of our Justice Committee, Ms. Marghem and Mr. Turtelboom. Bacquelaine, members of this majority, had said all the wrong that they thought of an unstable system with a closed envelope and that it was necessary to guarantee in the law that one would never descend below a point value fixed at 30 euros. I would like to be able to check today that we are in the month to what was presented as a minimum at the time. I think that we are not there and that those who, within the bars, believed that they could follow you in the writing of this text and that we would find an answer to the questions they have been asking for years, will quickly dismay. I think they have already begun to crack down since the discussions were started in the committee.

When it comes to taking into account livelihoods rather than income, all the members of the committee followed you saying that it was something interesting. It is unacceptable that only the declared or known incomes are taken into account and that a series of other incomes must be taken into account.

There was an interesting advance. This may have been a way to fight against what we could have called abuse in the head of some beneficiaries, but here too, we remain a little on our hunger. Who will appreciate and how will these means of existence be appreciated? It will be the bars, the legal aid offices who will have to do so. With what capacity of action? You said that they might have access to databases but at some point, interpretation issues will probably be raised and it is again the bars that will have to make this decision with the extra work that I just talked about.

The Legal Aid Fund is the real finding, but not yours! It is not the discovery of the government, it is the discovery of the parliament, it is the discovery of certain groups of the majority, of the N-VA in particular who deposited this text. Again, if the creation of a fund is a path that, in itself, can be interesting, we are still surprised, Mr. Minister, by the way it is constituted. The question is whether the reflection has been pushed far enough to make this mechanism interesting. Why limit the feeding of this fund to only criminal convicts who will already be sentenced to a criminal fine? You know that this criminal fine is accompanied by judicial costs, besides which we already have a contribution to the fund supposed to compensate victims of intentional acts of violence. And we will now add an additional accessory that will be this condemnation to intervene in the feeding of the Legal Aid Fund.

Why only criminal convicts, when it is well known that the recourse to legal aid is valid before both criminal and civil and labour courts? And why shouldn’t those who use the judiciary as a whole be involved in the financing of this fund? There is a risk that maybe someday someone will raise discrimination and that the Constitutional Court will look at the issue.

You have been the Minister of Finance. You know the difficulties of recovering criminal fines. You know the difficulties we have to recover in addition to the costs of judicial proceedings. And today it is thought that the fact of increasing or condemning to something more will guarantee us a better perception! Except to give him a privilege and that the feeding of the legal aid fund prevailed on the criminal conviction, on the costs of justice or on the intervention for the fund of victims of intentional acts of violence.

If we do not settle this, it will be a bit like your moderator ticket: maybe a few thousand euros will go back to the state treasures, but ⁇ not the manna you expect. We have a bit of the feeling that there too, it is a response that was found on a corner of the table, very quickly bricolated, but that will ⁇ not allow to meet the financial means necessary for legal aid to be really sustained.

And finally, Mr. Minister, the last point. During our committee work – other colleagues have already mentioned it – we talked about first-line legal aid.

It is also necessary to work on this element, if you want to avoid the use of second-line legal aid. Without a doubt, at this first stage, many things could be avoided or many things could be settled by guidance towards alternative modes of conflict, by advice that would be reasonably given as long as this first-line aid is also taken into account and valued?

Mr. Minister, you are passing aside what could have been a fundamental and foundational element of your justice reform policy. We stopped at a few symbols, such as so many trophies that can be exhibited to claim the fact that you have fought against overconsumption, abuses and the fact that you have made the actors responsible, but you will not have solved the issue of financing legal aid. As long as this refinancing is not carried out, you are intimately convinced, things will not improve.

Mr. Speaker, resuming the discussion at 01:30 am is not really my style but I appreciate so much the fact that the colleagues of the committee have stayed to hear my replica that I still want to answer some of their comments.

I would like to thank the majority for their support. Then, I think there are three words that I did not use in the commission. I’m not sure because words are easy to use, especially when you’re a lawyer and you’re discussing a lot in a commission. I don’t think I’ve been talking about “overconsumption.” I don’t think I’ve used the word “abuse” or the word “symbolic” in relation to personal contribution. If I did, it was a mistake.

I didn’t say it was you who used those words!

No to No! As a Minister, I am here to listen to you.

Yes, we are in number. But History is pro deo, Mr. Cheron because you have said just before that you are not pro deo. History is pro deo.

I think, on the other hand, I have spoken several times, in this homicide, of a underconsumption of legal services. I can tell you in which report this is included. That was the night we spent together, Mrs. Özen. I can tell you where because, when I first talked about legal insurance, it was mainly for those who do not receive legal assistance to have access to it.

At every recap, I said we were resorting to less lawyers and legal advice than we should; so I’m someone who defends. There are other projects. I still have three years, Madame Özen. Either I go too fast, or I’m too slow, but that’s never good. It is normal. I never talked about overconsumption. Furthermore, Ms. Onkelinx was there when we voted, in first reading, in the government, what we called, at the time, a moderator ticket. As for the royal decree, Mr. Cheron, it will be approved, I hope, tomorrow by the government to go to the Council of State.

and tomorrow?

Yes, there is one that should be deliberated in the Council of Ministers. As for the rest, the King approves them on his own. You follow very well. The nomenclature requires a ministerial order. Tomorrow, we will arrest a sum of 20 euros, as I said in the commission. For the rest, there will be a nomenclature that advocates and promotes mediation, amicable settlement. The lawyer who performs this should be better paid. I’ve always said the same for insurance too.

As for the fund, you can’t say that one has hidden behind his little finger. You know the text and you yourself thought it was really useful to ask for the State Council’s opinion, which I did not deny. On the other hand, I said we thought it would bring 15 million. We never said, I think, that this would be attributed to the amount the government gives in support in general. This could be a surplus. The Salduz II, which will be voted and will come into force before 1 December 2016, will only have to be paid in 2018. If you vote the fund on time, it will help.

We are in a time of football. A tweet with the members of the majority in Parliament is not forbidden. Mr. Brotcorne, if you were Minister of Justice, I would very much like to submit a bill that would support you as Minister of Justice. We have never hidden anything from each other. We have always said, “Here is the text, I support it, it is the text of the majority.”

Furthermore, it is clear that there is a priority for that fund. You are afraid that this fund will not make much. The Fund for Compensation of Victims.

There is a priority for these funds over the civil part, for example. You do not ignore it, but I repeat it.

As for the means of subsistence, I believe that there has been innovation in relation to this. Everyone agrees that a listing of livelihoods in the Royal Decree is a useful thing to say that in some cases, income thresholds will not play; indeed, someone who earns for example less than a minimum income threshold of 954 euros may have such funds on his savings accounts and it would not be justified to give him the favor of legal aid. But it has been said very clearly at the same time that family allowance, the first home, the fact that we have debts, are things that can or may not be taken into account. The first house will not be considered as a means of subsistence. Neither is the family allowance. The fact that you have excessive debts can be taken into account, even if you earn more than the minimum income threshold. Finally, as regards the first line, it is also within the competence of the Communities and the agenda of the Ministerial Conference of the Houses of Justice of 5 September 2016 already contains this point. This conference will be chaired by Minister Vandeurzen. Here are some of my answers.

These were some of the answers I wanted to offer you in this interesting nightly debate.

Are there members asking for a replica?

Mr. Speaker, I will speak in a word, in order not to give the impression to the Minister that we have not listened to him religiously. The concept of pro deo was preserved. This is very risky in a secularized era. It is curious anyway!

Mr. Cheron, it was Ms. Uyttersprot who spoke about it. Not to me. That is why I answered.

Tout à fait, mais vous avez osé la comparaison footballistique et évoquant le projet de loi et l'argent qui est lié aux fonds organiques traditionnels du gouvernement. This, there is the question of the fund. You have used the expression of "one-two". You ne voudrais pas qu'avec ce que nous allons obtenir, and définitive nous soyons hors-jeu dans cette affaire. and Rires