Assistance is guaranteed

Assistance is guaranteed

"I don't have enough money to hire a lawyer. Under what conditions am I entitled to legal assistance?

Léon, Carouge

Legal aid is assistance provided by the State to individuals whose resources are insufficient to defend their interests. It is a fundamental right enshrined in our Federal Constitution, designed to guarantee access to justice. This assistance consists of paying the fees of a legal adviser. The person receiving legal assistance is also exempted from advancing the costs of the proceedings that a Court may require when the proceedings are subject to a fee.

People generally seek legal assistance in the context of legal proceedings, i.e. before the courts. However, the State may also cover the cost of legal advice in any out-of-court proceedings. However, this assistance must relate to steps that the beneficiary cannot take without the help of a professional and that no other social service can take.

The law lays down two conditions for the granting of legal aid. Firstly, the applicant must not have sufficient resources and secondly, the case must have a reasonable chance of success.

Legal doctrine and case law use the concept of indigence to interpret the first of the two conditions. An indigent person is one who is unable to pay the costs of the proceedings and the costs of legal advice without affecting his or her subsistence minimum. The Federal Council considers that this subsistence minimum corresponds to that of debt collection law increased from 10% to 30 %.

The competent authority will therefore take into account the applicant's monthly income and, to a certain extent, his or her assets, and will deduct from this his or her so-called incompressible expenses, i.e. maintenance costs, rent, tax and health insurance premiums.

Finally, it is important to note that legal assistance is not free of charge in all cases; the assisted person will have to reimburse some or all of the amounts disbursed by the State in the form of monthly contributions set out in the decision granting assistance, based on the applicant's financial situation. In Geneva, this may involve up to 60 monthly payments.

Consequently, if the costs of the proceedings you wish to initiate and a lawyer's fees would reduce your subsistence minimum as calculated above, you may apply for legal aid from the State. You should be aware, however, that the right to legal aid is subsidiary to so-called family law claims. Thus, if you are married, your spouse has a duty to assist and maintain you, which includes covering the costs of the proceedings.