1 State - People - Authorities - 16 Judicial Organization - Lawyers and Notaries - 161 Judicial Organization - CHAPTER ONE General Provisions (GPH)

[4] 1. Legal aid aims to ensure access to justice for individuals who lack the necessary resources for this purpose.

2. It includes, if necessary, the assistance of a lawyer.

3. In the cases referred to in Articles 213 and 214 CPC, it also includes the use of a mediator registered in the directory according to Article 20a, if the court recommends mediation or agrees to mediation requested by the parties.

1 Legal Aid in Civil Matters and Legal Aid in Criminal Matters are governed by federal law (Art. 117 to 123 CPC and Art. 132 to 138 CPP).

1. Legal aid is granted to a litigant who cannot bear the costs related to the defense of their rights without compromising the minimum necessary for their maintenance and that of their family.

2. It is subsidiary to the obligations of civil law.

[5] 1 The grant of legal aid is subject to the condition that the case does not appear to be entirely devoid of any chance of success in the following instances

c) in criminal matters, in the cases provided for by the Code of Criminal Procedure (CPP).

2. Repealed.

[6] 1. Legal Assistance Includes

a) Exemption from advances and securities;

b) Exemption from court fees, when provided for under federal law;

c) Appointment of legal counsel ex officio when the defense of the applicant's rights requires it, particularly when the opposing party is assisted by a lawyer; legal counsel assistance may already be granted for trial preparation. In criminal matters, Articles 132 and 136 of the Code of Criminal Procedure are reserved.

d) The involvement of a mediator, in the cases mentioned in Article 1, paragraph 3.

2. Legal assistance may be granted in whole or in part.

3. It does not exempt the payment of costs to the opposing party.

[7] 1 Decisions regarding the granting, refusal, or withdrawal of legal aid, as well as the appointment of an attorney, a mediator, or an advisor, their revocation and replacement, fall under the jurisdiction of the authority seized with the case, or that the applicant intends to seize.

2. In the case of a collegiate authority, the decision belongs to its president or to the judge responsible for the administration of evidence.

3. In criminal matters, these decisions fall under the jurisdiction of the competent procedural authority at the relevant stage.

1. The applicant provides the information and documents necessary to assess the merits of their case and their personal situation.

2. For this purpose, they use the official form established by the Administrative Commission of Judicial Authorities.

4. To this end, they release any financial institution from banking secrecy if necessary and consent to the lifting of official secrecy within the administrative services.

1. The applicant specifies, in their application, whether they wish to obtain the appointment of a court-assigned attorney.

2. They indicate, if applicable, the chosen attorney.

3. As a rule, the chosen attorney is appointed as the attorney.

In civil and administrative matters, the application may be communicated to the other party to allow them to respond within a period of thirty days.

1. The competent authority shall decide on the request, if necessary, after conducting the required investigative actions.

2. It may, in particular, require the applicant or third parties to provide all the information and documents necessary to make an informed decision.

3. If the applicant does not comply with the requests directed at them, or if the information or documents provided are inaccurate or incomplete, their request shall, in principle, be rejected.

1. No fees are charged for the legal aid procedure, except in cases of reckless or bad faith behavior.

2. Fees may be charged in the appeal procedure.

[8] 1. Legal aid takes effect on the day it is requested. The competent authority may, in exceptional cases, grant legal aid with retroactive effect, upon a substantiated request.

2. A new request for legal aid must be submitted for the appeal proceedings, subject to paragraph 2bis.

2bis In criminal matters, the accused is not required to submit a new request.

3. In urgent cases, the competent authority may grant provisional legal aid upon request, prior to the instruction of the application.

4. Such an urgent case notably includes the situation where the applicant must perform a procedural act within a mandatory deadline or must appear before an authority before the decision is rendered in the sense of article 10.

1. The beneficiary of legal aid is required to immediately communicate to the competent authority any changes to the facts upon which the decision to grant legal aid is based, as well as the occurrence of any other fact related to the conditions for granting legal aid.

2. The competent authority shall, if necessary, re-examine the conditions for granting legal aid.

1. The competent authority shall withdraw legal aid when the conditions for granting it are no longer met, or if it turns out that they were never met.

2. Except in cases of urgency, the beneficiary and the attorney shall be heard beforehand. In the event of withdrawal, the attorney's fees are guaranteed, unless he or she knew or should have known that the conditions were not fulfilled.

[9] Decisions on the granting, review, and withdrawal of legal aid are automatically communicated to the service designated by the Council of State (hereinafter: the service).

1. A lawyer is appointed to the recipient of legal aid

a) under the conditions set out in Article 118, paragraph 1, letter c, of the CPC in civil and administrative matters;

b) under the conditions set out in Articles 132 and 136 of the CCP in criminal matters.

2. The recipient of legal aid may propose a lawyer of their choice.

1. The attorney is selected from among the lawyers registered on the official roll of the bar, who are generally obligated to accept such a mandate.

2. In matters of lease contracts and employment contracts, when representation by professionally qualified agents is permitted under the meaning of Article 68 of the Code of Civil Procedure (CPC), they may be designated as legal counsel.

3. Upon the proposal of the beneficiary of legal assistance, and with the consent of the interested attorney, the competent authority may appoint a lawyer registered in another canton’s bar registry, provided that particular circumstances justify it.

If the relationship of trust between the recipient of legal aid and the lawyer is seriously disrupted, or if effective representation is no longer ensured for other reasons, the competent authority may assign the mandate to another lawyer.

[13] 1 The attorney exercises their mandate with care and diligence.

2. Their activity is limited to what is necessary to defend the interests entrusted to them, taking into account the nature, importance, and difficulty of the case, as well as the responsibility they are called to assume.

1. The lawyer is liable for any damage caused in the exercise of their mandate for legal assistance, whether intentionally or through negligence.

2. Their liability is subject to the provisions of the Code of Obligations.

3. The State is not liable for the civil consequences of the lawyer’s misconduct.

[15] 1 The parties shall choose the mediator from the names listed on the register provided by the Civil and Criminal Mediation Act (CCMA), of May 24, 2023 [16].

2. Except in duly justified cases, there can be no change of mediator during the mediation process.

3. When appointing the mediator chosen by the parties, the authority responsible for the procedure sets the maximum number of mediation hours that will be covered under legal aid. This number, which initially cannot exceed 8 hours, may be increased during the mediation by decision of the authority responsible for the procedure, upon a reasoned request by the mediator and with the parties' agreement. This limit does not apply to cases provided for in Article 218, paragraph 2 of the Code of Civil Procedure (CCP).

4. A co-mediation may be exceptionally implemented.

[17] 1 The lawyer may not charge the recipient of legal aid any retainer fees or legal fees.

2. He or she is compensated by the State based on their activities.

[18] 1 The compensation due is calculated according to the following hourly rate, excluding VAT

a) attorney: 180 francs;

b) professionally qualified representative and mediator: 140 francs;

c) trainee attorney: 110 francs.

2 Only the necessary hours are counted. They are assessed based on the criteria mentioned in Article 19, paragraph 2.

3 For mediators, the number of hours counted may not generally exceed the number authorized by the competent authority according to Article 20a, paragraph 3.

1. The travel expenses of an attorney are reimbursed at a flat rate of 3 francs per kilometer, excluding VAT, which includes time and expenses. For trainee attorneys, this flat rate amounts to 2 francs per kilometer.

2. Travel outside the canton is reimbursed at the rate of first-class public transport.

Shipping, copying, and telephone costs are calculated based on actual expenses or at a flat rate of 5% of the indemnity amount, with the exception of travel expenses.

[19] At the conclusion of the proceedings, the attorney, the mediator or the mediation officer shall submit to the competent authority an account of the costs and fees eligible for compensation, indicating the time spent. Failing this, a decision shall be made ex officio.

[20] 1 If the parties do not agree on an equal sharing of mediation fees and costs, and only one of them benefits from legal aid, the portion covered by the State cannot exceed its share calculated on an equal basis. For this purpose, the mediator specifies in their account statement the distribution agreed upon by the parties.

2. Only the portion related to the party or parties benefiting from legal aid is included in the memorandum submitted to the competent authority. The latter specifies in its decision the amount that each party must reimburse, taking into account Article 15, paragraph 1 of the LMCP, in matters concerning children's rights.

3. The portion for the party not benefiting from legal aid is therefore billed directly to them by the mediator.

The compensation memorandum is communicated to the beneficiary of legal aid to enable them to make a decision.

[21] The claim of the lawyer, the mediator, or the mediatrix against the State shall be prescribed by five years from the conclusion of the trial.

[22] 1 The judicial or administrative authority ruling on the case shall determine the court costs and expenses and allocate them in accordance with the applicable procedural law.

2. It shall communicate the operative part of its judgment or decision to the service and specify the total amount of the awarded compensation and the amounts of the advance payments already made.

1. The recipient of legal assistance shall pay the costs to the opposing party themselves.

2. Court costs shall be borne by the canton, subject to Article 32.

1. When ordered to bear legal costs, the opposing party shall reimburse the State for the expenses it has advanced to the beneficiary.

2. The costs awarded to the beneficiary of legal aid are paid to the attorney by the State.

[23] 1 The person benefiting from legal aid is required to reimburse the costs incurred by the legal aid to the State as soon as their financial means allow it. Article 15, paragraph 1 of the Legal Aid Act is reserved.

2. The State's claim is subject to a ten-year statute of limitations starting from the conclusion of the trial.

[24] 1 Upon the granting of legal aid, the service may require the beneficiary to make advance payments against the benefits provided by the State.

2. It takes into account, in particular, the expenses considered for the granting of legal aid, as well as the personal and family situation of the beneficiary.

1. The State may be assigned, up to the amount of expenses incurred by legal aid, all or part of the potential claim resulting from the trial for the person benefiting from legal aid.

2. The assignment is only valid if it has been recorded in writing. The application form includes a provision for this purpose.

[25] 1 At the end of the proceedings, the department examines whether the person benefiting from legal aid is able to reimburse the costs covered by the State.

2. For this purpose, the service can contact the following entities

a) the tax authority to ascertain the declared income;

b) the debt enforcement office to learn about the amount of debts and any ongoing seizures;

c) the cantonal compensation fund, the DI office, and the cantonal social action service to find out if any benefits are granted.

3. Article 33, paragraph 2, is applicable.

4. The application form includes a note to this effect.

[26] 1 When the recipient of legal aid has the necessary means, the service agrees with them on the reimbursement and determines the terms thereof.

2. In the absence of an agreement, or in the event of non-compliance with the agreement, the service issues a decision establishing the terms of reimbursement.

[27] If necessary, the State recovers the costs incurred by legal aid through enforcement proceedings.

[28] Decisions made by the competent authority of the first instance regarding the granting, refusal, or withdrawal of legal aid, as well as the appointment of an attorney, a mediator, their dismissal, replacement, and compensation, or the determination of the maximum number of mediation hours covered, may be appealed to the Civil Court of the Cantonal Tribunal.

**[29] Decisions of the Competent First Instance Authority**

Decisions of the competent first instance authority regarding the granting, refusal, or withdrawal of legal aid, as well as the appointment of an attorney, their revocation, replacement, and compensation may be contested before the Cantonal Court pursuant to the Code of Criminal Procedure (CPP).

[30] Decisions of the competent first-instance authority regarding the granting, refusal, or withdrawal of legal aid, as well as the appointment of an attorney, their revocation, replacement, and compensation, may be appealed to the Public Law Court of the Cantonal Tribunal.

[31] Decisions made by the service regarding reimbursement may be appealed to the department, and subsequently to the Cantonal Court.

1. Any person who, intentionally, makes a false or incomplete statement orally or in writing with the purpose of obtaining or maintaining legal aid, or to enable a third party to obtain legal aid, shall be liable to a fine.

2. A beneficiary who, intentionally, fails to disclose any change in the facts upon which the decision to grant legal aid is based, or the occurrence of any other relevant fact concerning the conditions for granting legal aid, shall be liable to a fine.

The following provisions are repealed

This law is subject to an optional referendum.

1. The Council of State determines the date of entry into force of this law.

2. It shall provide, if necessary, for its promulgation and execution.

Law promulgated by the Council of State on July 8, 2019.

The entry into force is set to take effect on July 1, 2019.