Dutch legal expert Willem de Boer helps explain legal aid in the Netherlands.
The Raad voor Rechtsbijstand (Legal Aid Board) was instituted by the Minister of Justice (Lord High Chancellor). Its aim is to make sure you will have legal representation should you require any. If you cannot afford a solicitor, the Council will provide financial support. Your solicitor will receive a toevoeging, a monetary allowance. You will pay part of the cost yourself. The size of your contribution depends on the height of your income.
Under the European Convention on Human Rights and the Constitution of the Netherlands, each citizen (or visiting citizen) of the Netherlands has the right to access courts, apply for legal advice and representation and, if means do not suffice, receive state-financed legal aid. The Dutch Legal Aid system provides legal aid to people of limited means.
Anyone in need of professional legal aid but unable to (fully) bear the costs, is entitled to call upon the provisions as set down in the Legal Aid Act (in force since 1994; the last amendment of this law took effect on July 1st, 2011). The Legal Aid Act of 1994 replaced the prior statutory system that dealt with the supply of legal aid and dates back as far as 1956. Given their financial means and merits, approximately 36% of the Dutch population (with a total of 16.7 million people) would, according to the latest estimates, qualify for legal aid if circumstances so require. The legal aid itself is mainly financed by the state (the Legal Aid Fund) and only for a minor part by an income-related contribution of the individual client.
Fields of Law:
- Family (domestic violence, divorce, alimony, child abduction etc.)
- Social security
- Other civil cases
The eligibility for legal aid is based on both the client’s annual income and his assets. The LAB verifies the client’s personal data with those in the municipal population register and checks the applicant’s income with the tax authorities. It is able to do so with the aid of a burgerservicenummer (citizen service number) (BSN); this is a unique identification number, which every Dutch citizen receives when registering in the municipal population register.
Thanks to online connections with the tax offices, the LAB is able to rapidly obtain information concerning the applicant’s income and other available financial means. Assessment of the applicant’s income level (and hence his potential eligibility for legal aid) is based on his income two years prior to the application date, the so-called reference year (t-2). The reason to use that year’s income data, is that those data are the latest that are available from the tax authorities. Moreover, those data have generally been found correct and therefore final. So, for a certificate to be granted in 2013, the applicant’s income in 2011 is decisive. In order to qualify for legal aid in 2013, the applicant’s income in 2011 should not be higher than € 24,900 (single person) or € 35,200 (married persons /single person with children).
However, requests can be made to change the reference year, if the applicant’s income in the year of application has decreased substantially compared to that in the reference year. This holds if the applicant’s reference-year income would not make him eligible for legal aid, whereas his present income would. If an applicant wishes to be eligible for a lower contribution, his income needs to have decreased by at least 15% since the reference year.
Eligibility for legal aid
Eligibility for legal aid, however, is not only subject to the level of income but to the availability of other financial means (such as savings) too. The applicant’s assets must not exceed € 20,014 (with a supplementary allowance of € 2.762 per child under 18 in his care).
People seeking justice are encouraged to visit the Legal Services Counter first by offering them a discount of € 51 on the individual contribution, should it turn out that a certificate is needed after all. People seeking justice with a certificate and who have not visited the Legal Services Counter first will not receive this discount on the individual contribution. There are also cases in which the discount is automatically given, for example in criminal cases. In 2012, the contributions to be paid by clients varied from € 127 to € 785 per case (depending on income). Individuals whose income exceeds € 35,200 (partner income included) or € 24,900 (single) are not entitled to legal aid.
In 84% of the cases of certificates granted, the person seeking justice comes under the lowest individual contribution category. Sometimes clients are exempted from individual contributions. This applies to all cases where people have been deprived of their freedom against their will. But also ‘have-nots’ are exempted from paying an individual contribution. If a client is in need of a second certificate within six months, his contribution is reduced by 50%; this reduction applies to a maximum of three certificates within six months. If a client has not visited the LSC, this reduction will not be applied. In the second half of 2013, this so called ‘anticumulation scheme’ will be abolished; from then on, there will only be a hardship clause. It is also possible to apply for a mediation certificate. This allows the client to call in assistance of an independent mediator, so as to help him to settle an issue between himself and another party. To stimulate the use of ADR, the client’s contribution towards the costs of mediation is generally less than that of regular legal aid. In 2012 the contribution for mediation was set at a maximum of € 102.
In case of relatively simple legal problems, private lawyers are allowed to charge a standard three-hour legal advice fee, of which the client contributes € 41 or € 76, depending on his income. This is called a minor aid certificate.
Besides certificates, the LAB also provides duty lawyers. Each criminal suspect, alien or psychiatric patient who has been lawfully deprived of his liberty against his will receives a visit from a subsidized lawyer. The availability of lawyers is provided for through the defence counsel rota services. Lawyers are scheduled according to a rotation system, so that a lawyer will always be available. In 2012, legal aid provision through duty lawyers took place over 127,000 times.
Legal aid in the Netherlands is usually provided by private lawyers that provide legal advice and represent clients in cases that deal with the major fields of law: criminal, family, labour/employment, housing, social security, consumer, administrative, asylum and immigration. Private lawyers obtain legal aid cases in two ways: either one of the LSC refers a client to a lawyer, or a client contacts a registered lawyer on his own accord. In the latter case the lawyer will have to refer a client back to the Legal Services Counter in order to qualify for a discount in the individual contribution, if a certificate for legal aid is needed. To be entitled to accept legal aid cases, private lawyers need to be registered with the LAB and comply with a set of quality standards. The quality is assured by the Bar. For some fields of law – criminal, mental health, asylum and immigration law, youth, family law –additional terms apply. These are mainly concerned with specific training: the lawyer must both have adequate expertise and sufficient experience in that particular field.
Loth Rupert De Boer Solicitors consists of five solicitors who specialize in family, juvenile, social security, labour/employment and asylum/ immigration law. They litigate and advise on basis of funded legal aid (addition) as well as on paid basis. The solicitors each have extensive experience, as they have been working for years as an advocate, teacher or lawyer at various (government) agencies in the aforementioned jurisdictions. For further information, visit their website at www.lrbadvocaten.nl.