Proposition 50K1048

Projet de loi modifiant l'article 74 de la loi du 13 mai 1999 portant le statut disciplinaire des membres du personnel des services de police.

General information ¶

Authors

Open Vld Hugo Coveliers
PS | SP Karine Lalieux

Submission date

Jan. 17, 2001

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

police disciplinary proceedings

Voting ¶

Voted to adopt

Groen Ecolo PS | SP Open Vld MR

Voted to reject

CD&V LE FN VB

Abstained from voting

N-VA

Party dissidents ¶

• Karel Pinxten (Open Vld) voted to reject.
• Alfons Borginon (Open Vld) abstained from voting.

Contact form ¶

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Discussion ¶

Feb. 15, 2001 | Plenary session (Chamber of representatives)

Full source

I refer to the written report.

Mr. Speaker, Mr. Minister, Colleagues, the present proposal is actually another eloquent proof of the fact that the implementation of the police reform by this government is being carried out in a totally amateurist way. The incredible laxity and indecisiveness of the Minister of Internal Affairs is in no small degree the cause of this.

What is it about here? The law of 13 May 1999 on the disciplinary status of police personnel – a law still dating back to the previous government – provides in Article 74 that it should be applied by 1 January 2001 at the latest. That was also logical, since the global law on the integrated police services had to apply no later than on the same date. In the meantime, everyone knows that the general implementation of the local police was postponed until 1 January 2002. The federal police were expected to start on 1 January 2001 by performing some top appointments quickly and quickly. Everything is thus limited to an empty box: the appointment of a few top officials. There was and is nothing of the implementation in the field. In addition, the selection of the candidates occurred due to the time pressure in a questionable, inhumane way.

I come to the core of the problem. The Minister had apparently omitted the fact that the law of 13 May 1999 was applied from 1 January 2001 without any implementation of the law on the integrated police or without a new staff status. The law was voted on time. The date of entry into force of the law was precisely stipulated in Article 74. That was very clear. A responsible minister heard this know and acted on it. It was also ignored by the Minister that the new disciplinary law, in order to be fully applicable, required a number of prior implementation decisions. In order to impose more severe disciplinary sanctions, for example, the intervention of the disciplinary council provided for by law was necessary. However, the disciplinary council does not exist, it was not established. The law cannot be applied by the negligence of the competent minister.

In principle, the law was arbitrarily applied, according to the cited article. Since 1 January 2001 — I would like to emphasize that — the law applies until the moment when the current provision enters into force, that is, after its vote. This is a real April joke. This is total confusion. I give as an example page four where the statement regarding the Minister can be read. Anyone who sees clarity in how the new regulation should be applied in concrete cases of files must be a good lawyer and above all a creative mind. This is otherwise incomprehensible.

Colleagues, if this text is adopted today and enters into force on 1 April, the so-called April Summit will be ⁇ well tasted by all those who feared a disciplinary sanction. They will definitely be out of shoot. Mr. Coveliers, you say no, but I would like to suggest you to read the statements of the Minister. He has said on behalf of the government itself that at the moment it is better to apply neither one nor the other regulation. I would like to know how to act in practice.

After a full month of uncertainty, it slowly begins to appear — not yet for the minister — for a number of snugger colleagues who have quickly submitted a bill. A majority in this half-round, by the way, supported the urgent request for this bill. You know, there was a short discussion about this at the time.

Mr. Minister, should I possibly assume that the initiative came in silence from you, that it was suggested to the parliamentary member concerned? There is only one explanation for this, in particular avoiding the Council of State. Their

Mr. Erdman, after all, there were good reasons to avoid the State Council. This way of working was to make it possible to cover up the negligence of the minister and the government as quickly as possible. Furthermore, the Council of State would not have left a spade of this text entirely. You know as well as I know that the State Council would never have accepted that disciplinary law is established up to twice with retroactive effect.

However, this is what is happening now. A regulation should first enter into force on 1 January. After a month, you realize that you have made a mistake. With retroactive force, one returns to the old state. I am already informing you, colleagues, that this measure will be extended in the shortest possible time, thus putting the new scheme out of force again. I will return to that later.

In any case, the Parliament is faced with a bill postponing the entry into force of the law establishing the new disciplinary statute until 1 April 2001. This is the date on which the new Staff Statute of the Integrated Police should enter into force. At least that is what the Minister has always said.

In the committee, the minister stated, I quote the report on page 3: "In accordance with the Mammoth Act approved in this regard - this is the Mammoth Decision - the new Staff Statute of the Unit Police enters into force on 1 April 2001, while the entry into force was originally established on 1 January 2001. At the time of the drafting of the law of 13 May 1999, it was clear to everyone that it must enter into force simultaneously with the new statute.

The negotiations conducted last year with the trade unions on the new statute clearly demonstrated that both matters were related, as the successful completion of the discussions on the mammoth decision was the prerequisite for easing the disciplinary law of 13 May. That must happen today, too. There is apparently an agreement with the representative trade unions that the disciplinary law on a number of articles still needs to be adjusted and that all - together with the recently made comments - by the end of March.

Mr. Minister, I ask if this is possible? Is there already a text? Has the Council of State been asked for the opinion on that text, and is it correct that three articles of that text were destroyed by the Court of Arbitration? This is one more reason to adjust the text. So I would be interested to know how far we are. Mr. Minister, after all, it is almost written in the stars that you, also for this additional reason, will not be able to maintain this timing.

The Minister stated that the mammoth decision should apply on 1 April of this year. The conditional mode implies that it will not actually be applied and that it should have been published by 1 January 2000 at the latest. Thus, the trade unions and members of the police staff together would be given the opportunity to make a choice, either for the old or for the new statute. Well, according to the agreed three-month deadline and given the time frame to arrive until April 1, we already know that the timing will not be able to be held.

Mr. Minister, your text comprises about 1,500 articles and is approximately three weeks ahead of the State Council. If my information is correct, we have reached Article 156 and we will still regularly have the opportunity to exchange ideas together about the inability to respect the timing.

Mr. Minister, in addition, there is the sudden conclusion that, before the new statute can enter into force, Article 184 of the Constitution must be revised. I refer to the question of colleague Vanpoucke last week in which Minister Reynders, on behalf of the Minister of Home Affairs, strongly announced that the conscious article would be revised and that a few hours later an initiative would be taken. I am interested to know whether those hours have passed in the meantime — a week later. Can you give some clarity on this point at least?

We would also be interested in how you see this constitutional amendment. We do not yet know the text of your initiative. Do you see the possibility of reaching a two-thirds majority to approve that text? Can you make a future prediction about this? In any case, we would be very interested.

Mr. Speaker, colleagues, all of these findings and open questions point to it – and I really can’t say otherwise – the text that prefaces here will again be knitting. Only the date of entry into force of the previous law is amended.

This is the subject of the text that precedes. That period, that date, will be impossible to hold if one wants to link its application to, among other things, the Mammoth Decision. Mr. Speaker, together with my colleagues from my group, I feel too good to cooperate in such a parliamentary activity, namely the approval of a text that we already know will not be respected and will need to be re-enlisted.

Mr. Tante please.

I come to my decision. However, I thought that when discussing a bill, it was free for parliamentarians to use the speaking time they considered necessary.

I only indicated the time you signaled!

I have not mentioned the time. You have charged your own time spending as an argument.

You have confirmed this, Mr. Tante!

Okay right right. I would like to stop with the famous article 184 of the Constitution, which needs to be revised. Can I remind you, Mr. Minister, who, like I, was present at the Octopus negotiations, of the joint agreement we already reached at that time, namely that it was, if not necessary, at least desirable to revise Article 184 as soon as possible? The same argument was explicitly raised at the time we established the list of articles to be revised. Nevertheless, the government manages to allow almost two years to pass without taking any initiative. A comment from the State Council is necessary to remind her of this. Almost two years after the date, the government must therefore admit that it had forgotten this, thereby delaying the whole reform sine which makes the fate of the police officers more unclear than ever.

For those who do not want to believe me, but some articles or journalists, I refer to an article in Knack of this week by journalist Frank De Moor. “Even those who still doubt the ignorance of Interior Minister Duquesne and some of his close associates must now admit that the police reform from evil is getting worse.” He proves this by means of a number of concrete elements. The knitting work that is delivered thus makes the police reform no longer rescuable in an Orthodox way. Mr. Minister, the ultimate rush that you put to light after more than a year of drilling to quickly make a number of symbolic decisions leads to you having installed a number of irregularities and irregularities that are not necessarily yet to be corrected. An illustration of that. In the law that we have jointly made, it is expressly stated that the Commissioner-General and the Directors-General shall be appointed by the King on the proposal of the Ministers of Home Affairs and Justice, following a reasoned opinion of the Federal Police Council. It does not exist and cannot exist, because it cannot be normally composed. Why is it so? Because in that federal police council must also be a representative of the permanent committee for the local police, which does not exist. I can extend this series even further. These are a number of preparatory decisions that you should have made, but that you have not come to. This ensures that you are now in a position where you have actually brought the police reform to the brink of illegality. I am now coming to my decision.

Both the majority parties, the Flemish government, the Wallish mayor, the Association of Cities and Municipalities, are beginning to realize that this police reform is hopelessly delayed, that the entire operation will cost more than was originally determined, and that it becomes a big knockball. All this is more demotivating than motivating for the police staff. The period of "tout va très bien" is far behind us, but the moment of "rien ne va plus" is fast approaching. Their

It is a pity, Mr. Minister, that in this way, in an irresponsible way, the security of the citizen and the motivation of the police staff are being tainted. How long will this be possible with the guilty co-operation of the majority in this Parliament?

Please understand the meaning of the text of this bill before approving it. It is a disciplinary regulation which the Minister himself says cannot be immediately applied because it is completely unclear on which matters it relates or does not relate. In addition, the predetermined timing cannot be held. Anyone who approves this proposal knows beforehand that it will end up on a sisser.

Mr. Speaker, colleagues, on behalf of my group, I would like to say that the police reform — from which the CVP originates — should have been a serious matter, which had to be well prepared. Well, Mr. Minister, this is exactly where you failed. This reform deserved better.

Mr. Tante, I only took into account the speech time you indicated, which you, by the way, significantly exceeded.

Mr. Speaker, Mr. Minister, first and foremost, I would like to point out that the previous Disciplinary Act of 13 May 1999 — that is, before 13 June 1999 — was recently abrogated by the Court of Arbitration. It almost literally embraced the words on the right of defence and on the right to be heard, which were then formulated by certain MEPs. This proves that everyone can be wrong at any time. I would like to comment on the general issue of reform. In 1997, in tempore non suspectu, the Dutch Ministry of Justice published a booklet about the Belgian police and justice in its publication Justitielle Verkenningen, which appears a dozen times a year. Meanwhile, the same booklet has appeared, but about Turkey and I advise some members — who are currently absent — to keep this booklet before visiting Turkish prisons. In that book, Professor Huysse says that a reform is ⁇ difficult: “One must well realize that the fever will increase in the first phase of the recovery operation”; that is already felt. More people dare publicly criticize politicians, officials and judges, and so it makes sense that the fever is rising. In the 1997 section on police reform, it is stated: "Today it is still the question whether the federal government will find sufficient political consensus to successfully complete a large-scale and long-term operation with important budgetary implications."

Sometimes we refer to the experiences of the reorganization in the Netherlands, which can be teaching. This is indeed a lengthy and difficult process in which, in my conviction, other texts need to be updated in addition to the Discipline Act of May 1999. by

During the reading of the report, my attention was drawn to a ruling by the Chairman of the Committee on Home Affairs, who said that in disciplinary law the principle nullum crimen sine lege applies; in other words, no sanctionable offence without law. This is wrong. I refer to the work of Ingrid Op de Beek, an authority in the field of disciplinary law, who explicitly states that the principle of criminal law nullum crimen sine lege, according to which there can only be a crime if the act committed is defined in advance by law as a crime, does not apply in disciplinary law. In disciplinary law, the principle nulla pena sine lege applies and not the other one that you have incorrectly mentioned. by

Specifically, a very interesting article about the disciplinary status of the police has appeared in the Journal of Municipal Law, by the hand of the lawyer from Antwerp, Mrs. Coolsaet — somebody who some of your group members will know well — who cites the problem that we are talking about now. What is the problem? Where the disciplinary statute cannot be applied and where, in accordance with the principle of continuity in the administrative acts, it can be decided — confrater the article — that the former disciplinary law is still applicable, this law provides a clear legal basis for this and stipulates that from 1 January 2001 the old statute remains applicable because the new can be impossible to apply due to the absence of the councils. The new disciplinary statute will therefore apply from 1 April, the day the reform begins fully. I do not see what the problem is there. On the contrary, this is a ⁇ compliant rule.

Mr. Speaker, before Mr. Coveliers refers to manual books on criminal justice, he must first begin with manual books on the honest and correct citation of people. Their

The following is literally stated in the report. I quote: “The matter lies very closely with the criminal law. In this, the retroactive force is absolutely out of the evil. The principle nullum crimen sine lege applies here."We are talking about criminal law, Mr. Coveliers. I would like you to quote me correctly, otherwise you excite me.

You are never served as well as by yourself, Mr. Tant.

Mr. Tante, if that has nothing to do with disciplinary law, I wonder why you are talking about it. You obtain a directive from the criminal law which is expressly stated that it is not applicable to the disciplinary law.

Mr. Coveliers, you should not chase yourself because I catch you on a flagrant inaccuracy. It is intellectually unfair to quote such a plea from me. Furthermore, everyone knows that disciplinary law is not a criminal law, but that it is governed by the same principles. That is why I made this comparison.

You give me an excellent opportunity to draw attention to the fact that the law adopted in 1999 applies on 1 January of this year, in accordance with the expressly provided Article 74. Their

This law could only be applied when faced with facts that should be disciplinary punished. Mr. Coveliers, I assume that you are a good lawyer, also as chairman of the VLD — group. A month after the date, you take an initiative to be able to remove the law that is currently in force for a while in the box and to be able to reapply the old regime. On the basis of what provision can one take action against established facts that could lead to a disciplinary action? Take the example of drunk police officers in Antwerp. Before you answer, you should consult the Minister first or do a good job of reading the report. After all, the Minister claims uncompromisingly that he is reluctant to act at this moment. Facts can be established. Determining facts is predicting the criminal character, isn’t it? Therefore the expression nullum crimen sine lege.

I would like to emphasize that this principle does not apply in disciplinary law. A number of decisions of the Council of State leave no doubt about this. Can the disciplinary law set the procedure with retroactive effect? That is the only question to be asked. In disciplinary law the facts are appreciated in a much broader context than this is the case in criminal law. In disciplinary law, general loyalty is a principle for which disciplinary penalties may be imposed, in accordance with the decisions of the State Council. I repeat that the question of whether the procedural rules can be adopted with retroactive effect can be discussed. Certainly not about the content. The substantive penalties remained the same throughout the period. The State Council will have to judge this.

That advice will be devastating.

Mr. Speaker, I read as many opinions as possible from the State Council with historical criticisms. I have no problem with the State Council reviewing this text.

I would like to refer to Article 184 of the Constitution. The State Council has a certain legal statement attached to this article. However, I would like to point out that in the past this statement was not repeatedly followed. Let me give you a historical example. You can say that it is an old example. This is the first time the police have been reformed. When the Guard Civique was abolished in the second half of the 19th century, the Constitution was not amended. This happened only in the middle of the 20th century. Article 184 of the Constitution states that the National Guard is regulated by law. It can be said that this article would not apply.

I am following this exciting debate with great attention. Mr. Tante is, in my opinion, absolutely right. Despite the high scientific level of this debate, for the sake of my other job, I am interested in one concrete question: can two drunk police officers who were found behind the wheel of a combi and thus committed a serious crime be disciplined? Yes or No?

Mr Coveliers says that Article 184 should not have been revised. We can have a debate on this. We have been intellectually so honest to first ask the government how it saw it. Last week, the government made a strong statement – at the head of Finance Minister Reynders and on behalf of Interior Minister Duquesne – that it would take an initiative in the first hours. That only opens up the perspective that you will need more time to terminate and publish the statute of the staff under the form of a mammoth. The Minister has explicitly stated in the committee that the disciplinary statute, once applied, must be linked to it. Only one conclusion can be drawn from this. Mr. Coveliers, if you finally set the date of 1 April in your text today, you will have to take a new initiative within a few weeks. You will then have kept the Room for the soot.

Mr. Speaker, last week and yesterday it was promised that a proposal to amend the Constitution would be submitted to Parliament. I would like to inform the group leader of the VLD if that really happened, because I think that they are holding us hard for the lap here. Mr. Coveliers, you are trying to drown the April fish here with articles and discussions from legal media. However, you are facing a ⁇ serious problem. Mr. Speaker, if the Government does not put the proposal on the table promptly, the date of 1 April risks to be completely compromised. This has not yet happened and has not yet gone to the committee. I don’t really see how you can get that date of 1 April.

Mr. Speaker, dear colleagues, through his usual enchantments – which always express a lot of sympathy for me – Mr. Speaker. Tant has nevertheless asked two precise questions to which I would like to give an equally precise answer, hoping by this to advance our discussion.

First, the revision of Article 184 of the Constitution is necessary in order to remove from the constitutional prescription the term "gendarmerie", to replace it with the notion of "integrated two-level police service".

However, there is still a legal controversy. Together, we voted for the 1998 law implementing two-level integrated police. At that time, we had swept off the reverse of the hand the constitutional order objection. However, I think it is desirable to raise this objection today. Therefore, I have proposed to the government to submit a draft in this direction to the Senate. This will be discussed next Thursday.

In my opinion, this project can only delight all those among us who express legal concerns, and I dare hope that all of them will adopt it quickly and with enthusiasm.

In addition, you are not without knowing that I have conducted many discussions with the trade union organizations. These allowed me to see that the law adopted in 1998 - by you and by me! It raised a number of problems with regard to the exercise of the rights of defence. Therefore, even before the Court of Arbitration had ruled, I had signed my consent to the filing of a bill aimed at amending these disputed provisions.

I was also committed with the trade union organisations – in so far as the reform of the statutes would progress well – to try to improve the already established arrangement. You will, of course, remember the great dissatisfaction expressed, at the time, in all the police services when voting in the House. Since then, we have come to a project, in my opinion, reasonable. Also, after being approved by the government, it was transmitted to the State Council. Within a few hours, the opinion of the latter should be given, consecutive to which the said project will then be submitted to the House. I really believe that this bill should gather a very large majority in this parliament.

Mr. Speaker, you will have to admit that I have to answer Mr. Van Peel’s question.

Collega, if I am well informed, there are notes that facts a process-verbal compiled that was passed on to the Attorney of the King. Therefore, you must wait for the administrative authority to know what effect the King’s Prosecutor gives to the minutes of the trial. In the light of this, a disciplinary procedure may then be initiated within six months of the decision of the King’s Prosecutor.

Mr. Speaker, I have heard the Minister’s explanation of the initiatives taken. It may be debated whether an amendment to Article 184 is necessary. We will do so when we deal with this matter. There is also an option regarding the content of a police service. You should look at why the constituent has included that article in the Constitution earlier. This had a vision for the police. The fact that the Constitution is not being amended now actually implies a view of the police. You must read that. We will be able to do this during the debate. Their

This proposal is consistent. It is legally a technology that can rely on a number of elements from disciplinary law. I know that these elements can be checked by the State Council. We must wait to see what this Council in all its wisdom will decide on this matter. I have confidence in that. I ask the majority to approve this text.

Mr. Speaker, it is a good rule that after the Minister’s response, every member of Parliament has the opportunity to replicate it. I am therefore eagerly using it.

Mr. Minister, you yourself, but not strongly, ask questions about the need to revise Article 184 of the Constitution. I understand that this can be disputed. However, in the context of the Octopus discussions, the Cabinet of the Prime Minister agreed that Article 184 should be included in the list of constitutional articles to be revised.

Furthermore, for the motivation of the revision of the relevant article, we have explicitly referred to the orthodoxy which we consider necessary and which must be brought to light in the police reform. I am therefore pleased that the government has initially committed itself to do what was agreed.

As regards the opinion of the State Council, I cannot help but conclude that he has agreed to our position on all points. By the way, I let the Chamber note that there may be a misunderstanding. Most will think that the State Council’s opinion relates to the mammoth decision. This is not the case. It is an opinion in connection with a draft royal decree. It is useful to bring that to the attention precisely today, because we had just extended the talk about the shrinkage, if not the abolition of the ministerial cabinets. Well, the royal decree should enable the minister - I quote - to "install an administrative technical secretariat at the cabinet of the minister". As the saying goes, “This is not just a cabinet.”

Mr. Speaker, that is not only contrary to the intention that the government repeats repeatedly, but which it does not justify, in particular the shrinking and abolition of the cabinets. In addition, the government uses another escape route, allowing the competent minister to transfer his responsibilities to others, which he has repeatedly done so far.

Mr. Speaker, as a simple local governor, I ask the Minister the same question as I ask Mr. Coveliers. Is it possible or not to disciplinary prosecution of the two police officers who sat behind the wheel of their combi drunk last week, based on the chaos now created? I would like to get a yes or a no.

Mr. Speaker, I urge the Minister to give a clear answer to my question. What is the state of affairs with regard to the proposal to amend Article 184 of the Constitution? It would have been submitted to the Senate. It is not on the agenda of the competent Senate committee next week. The next week is the crocodile holiday and so the case will not be able to be discussed in the Senate until the second week of March.

This is the House of Representatives, not the Senate.

Indeed indeed . I fear that due to the poor timing and the lack of a two-thirds majority it remains a delicate issue for the majority.

The answer to Mr. Van Peel’s question is yes.

General discussion is closed. The general discussion is closed.