Proposition 50K0545

Projet de loi modifiant le Code judiciaire en ce qui concerne l'intervention du ministère public dans la procédure devant la Cour de cassation et, en matière civile, devant les juges du fond et modifiant les articles 420bis et 420ter du Code d'instruction criminelle.

General information ¶

Authors

CD&V Tony Van Parys
Groen Fauzaya Talhaoui
LE Joëlle Milquet
MR Charles Michel
N-VA Geert Bourgeois
Open Vld Hugo Coveliers
PS | SP Thierry Giet
Vooruit Fred Erdman

Submission date

March 28, 2000

Official page

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Status

Adopted

Requirement

Simple

Subjects

civil procedure higher court criminal procedure

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld N-VA MR FN VB

Contact form ¶

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Discussion ¶

Oct. 12, 2000 | Plenary session (Chamber of representatives)

Full source

I will speak on behalf of the two rapporteurs.

The proposal and the bill we are examining today originate in a judgment issued on 30 October 1991 by the European Court of Human Rights, which found that there existed, in the context of cassation proceedings, an imbalance between parties for the benefit of the public prosecution resulting from the fact that, on the one hand, the parties did not have the opportunity to respond to the conclusions of the public prosecution which were not communicated to the other parties in advance and, on the other hand, that this imbalance was further aggravated by the presence of the public prosecution at the deliberation of the court.

The judgment in no way questioned the objectivity of the cassation prosecutor’s office, but considered, however, this double situation as contrary to the principle of equal rights of the parties to the trial.

Since this judgment, two other in the same direction had been delivered and it is worth clarifying that immediately the Court had ranked behind this jurisprudence, at least as regards the presence of the public prosecutor in the deliberation, but the law had not yet been modified.

That is why, on 28 March, a bill was submitted by Mr. Erdman and, on May 5, a bill by the government.

The proposal of Mr. Erdman provided that the prosecutor’s findings should be notified to the parties at least one month before the hearing and that the parties had a period of fifteen days to submit a memo in response without being able to invoke new means.

Furthermore, the proposal repealed the provision providing for the presence of the public prosecutor at the deliberate.

The government draft had a broader scope as it not only addressed the proceedings before the Court of Cassation, but also the opinions given by the public prosecutor in civil matters before the courts of first instance and appeal.

Indeed, in these proceedings too, it was impossible for the parties to respond to these opinions. The Justice Committee devoted five sessions to the examination of these texts and conducted three hearings. This was heard by Mr. Attorney General at the Court of Cassation, Mr. Bresseleers, Attorney General, and Mr. Kirkpatrick, former baron of the Court of Cassation.

The Attorney General recalled that the Court had immediately adapted its attitude to the provisions of the judgment of the European Court of Justice. He also recalled that while the procedure is in principle written, the opinion of the public prosecutor is often given orally.

A debate therefore took place on the following question: Should it be mandatory to provide that the opinions of the public prosecutor should be written opinions, communicated in advance to the parties, in order to better ensure the contradictory character of the debates?

The persons heard insisted that such obligation would make the procedure more difficult and would have significant logistical consequences at the level of cadres, premises and computer equipment. The public prosecutor also specified that, in many cases, the simplicity of the cause and the absence of serious means of cassation did not require a written opinion of the public prosecutor.

by Mr. Erdman, the author of the bill, recalled at this stage of the debate that two objectives should be pursued: to comply with the case-law of the European Court of Justice, but also to aim for effectiveness. An interesting exchange of views also took place on the exact role of the public prosecutor when issuing his opinions. Is it or not a “part” of the cause? The Court of Strasbourg held that yes since it is under the authority and control of the Minister of Justice.

The Attorney General recalled the double role of the public prosecution: in criminal matters, it plays the role of public prosecutor; in civil matters, it is an advisory body; it is the amicus curiae, an expert who gives legal advice. At the end of these discussions, the committee considered that it was not necessary to provide for the mandatory written character of the public prosecution opinions but rather to establish a procedure allowing the parties to react to this opinion whether it is oral or written.

The proposal of Mr. Erdman was taken as the basis for discussion, but as a result of exchanges of views and debates, it was completely rewritten by its author in the form of a comprehensive amendment. by

The text adopted unanimously by the Commission therefore covers two cases.

First, the opinions given in civil matters by the prosecutors before the main courts.

In such cases, the cause will be communicated to the public prosecutor at the conclusion of the hearing. The opinion will in principle be written, but it may also be given orally. If the opinion is written, the judge shall fix, at the conclusion of the debates, the time available to the parties for their replica which shall be limited to the content of the opinion rendered. If the statement is oral, the parties may respond immediately or, at their request, at a subsequent hearing.

In the event of a written notice, it shall be deposited at the Secretary and notified to the parties, which may respond within the time limit fixed by the judge.

The second situations covered by the project relate to cassation proceedings.

First, the provision of Article 1109 of the Judicial Code, which provided for the assistance of the public prosecutor to the judgment of the court, unless he himself was the applicant in cassation, is repealed.

As regards the opinions given by the cassation prosecutor’s office, it is first specified that when the prosecutor’s office considers it necessary to oppose an office order not to receive an appeal, the parties are notified by judicial folding.

The public prosecutor has the faculty to give his opinions orally or in writing. When they are written, they are deposited in the register and a copy is sent to the parties. At the hearing, at the latest, the parties may submit a note in response, in which new means can no longer be raised.

In the event of a oral opinion at the hearing, the parties are then heard unless they request to be heard at a later date.

The parties to the case will always have the last word after the opinion of the public prosecutor.

Thus, Mr. Speaker, the text that is proposed to us aims to conform our legislation to the case-law of the European Court of Human Rights by ensuring a total equality of the parties in cassation proceedings and also before the civil courts of substance when the public prosecutor is required to give an opinion. The bill was unanimously adopted by the Justice Committee.

Mr. Speaker, I would like to thank Mr. Desmedt for his contribution to reporting.

I also pay tribute to the Chairman of the Committee on Justice, Mr. Erdman, for his contribution to the protection of human rights, both nationally and internationally.

This tribute may be welcome.

Mr. Speaker, it is up to the applicant of a draft to thank the rapporteurs for their work and the method of reporting.

That the government accepted this parliamentary initiative to fully recognize is, in my opinion, a unicum and for this I ask the Secretary of State to transmit my gratitude to the Minister. After all, starting from a bill, amendments were proposed and eventually the draft was withdrawn. This is not common and ⁇ everyone knows the interaction of good inspiration that sometimes becomes very fruitful in government circles, from the moment a parliamentary initiative is taken. In any case, this issue was approached correctly.

Also very special and important for the future is the good cooperation with the highest magistrates of the country. I remember another period in which the contacts between the legislator and the magistrates were very difficult because all parties involved locked themselves in their ivory towers, and the principles that Montesquieu brought us, but which did not allow us to enjoy each other’s experience and expertise in the field.

That is why I now pay tribute to the Prosecutor General of the Court of Cassation, for the way they collaborated on this draft.

Hopefully this will be broken with the trend of the past where the legislator was often criticized afterwards on his delivered work and only at that moment was heard what the exact range was.

My last comment is a boutade. In 1991, we were already convicted by the Court of Strasbourg, but it took to this day to fix things. Hopefully we will not have to wait every 10 years before legal intervention. The same observation applies to the case-law of the Arbitration Court, which regularly intervenes with regard to certain provisions of law and declares them incompatible with the basic principles contained in Articles 10 and 10bis, which require an adjustment which, however, never takes place and consequently continues to float without any legal force.

This does not imply that the Prime Minister should appoint a Secretary of State to follow up on the decisions of Strasbourg and possibly of the Court of Arbitration, but may delegate this task to the current Secretary of State. This would lead us to respect the legal principles as contained in the judgments of Strasbourg and the Court of Arbitration.