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Belgium / Constitutional Court / 81/2018

The Order of Flemish Lawyers and D.M. v. The Belgian State

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Deciding Body:
Constitutional Court
Decision date:

Key facts of the case

The Act of 25 December 2016 to amend the legal status of prisoners, surveillance in prisons and divers provisions concerning justice inserted a new Article in the Judicial Code. Article 81 of this Act inserts the obligation for “unnecessary costs” to be borne by the party that improperly caused these costs.

The plaintiffs issued an action for annulment of Article 81 since this measure inserts a financial restriction on the access to justice.

Key legal question raised by the Court

Does allowing the judge to automatically impose the payment of certain costs upon the party that causes these costs, consist of a restriction of the right to access to justice? 

Outcome of the case

The Constitutional Court rejected the action for annulment. In its argumentation, the Court bases itself on the case law of the European Court of Human Rights. The right of access to justice, that is part of the right to a fair trial can be subject to limitations, even if these are of a financial nature. Such restrictions may not, however, affect the very essence of the right of access to a court. Furthermore, limitations are not compatible with the right to access to justice if they do not pursue a legitimate aim and if there is no reasonable connection between them and the proportionality between the means employed and the objective pursued. (ECHR 14 December 2006, Markovic v. Italy, §99).

The Constitutional Court applied this case law and concluded that Article 81 pursues legal objectives by ensuring loyalty between parties. Thus the measure is not an unlawful limitation to the right to access to justice.