Proposition 50K1552

Projet de loi modifiant l'article 20 de la loi du 7 mai 1999 modifiant le Code judiciaire en ce qui concerne le régime disciplinaire applicable aux membres de l'ordre judiciaire.

General information ¶

Authors

Open Vld Hugo Coveliers, Guy Hove, Fientje Moerman

Submission date

Dec. 6, 2001

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

administrative sanction judicial power disciplinary proceedings

Contact form ¶

Do you have a question or request regarding this proposition? Select the most appropriate option for your request and I will get back to you shortly.

Discussion ¶

Jan. 24, 2002 | Plenary session (Chamber of representatives)

Full source

I refer to the written report.

Mr. Speaker, Mr. Minister, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. This is not a blame to my good colleague, Mr. Coveliers. He is only the messenger. However, it is painful to determine how the deontological regulation of the magistrates and the staff of the griffs and prosecutors is dealt with.

I will briefly recapitulate. At the end of the previous legislature, on 7 May 1999, the law-Giet-Landuyt was adopted. That law responded to an important recommendation from the parliamentary investigation committees to discipline magistrates when they neglected their duties. It was intended to respond to the identified dysfunctions. For this purpose, a national disciplinary council had to be established. Mr Vandeurzen had submitted an amendment to enable the law to enter into force only after 18 months in order to allow the Minister of Justice to quickly establish the legal provisions to establish the national disciplinary council so that the law-Giet-Landuyt could come into force on 31 January 2001.

At the end of 2000, however, no initiative had yet been taken to establish the national disciplinary council. Among other things, Mr. Coveliers then submitted a bill to postpone the entry into force of the law establishing the disciplinary regime of magistrates by one year, until 1 January 2002. At that time, the CD&V group proposed to incorporate a legal provision to establish the national disciplinary council through a royal decree so that this could be done quickly. This proposal was rejected by the majority. The Minister of Justice said in the Senate that the necessary adjustments would be made by February 2001 so that the law establishing the disciplinary regime of magistrates would ⁇ come into force and enforceable by 31 December 2001.

To our great surprise, further initiatives remained out. Now there is a new bill proposed by Mr. Coveliers, initially to revoke the lawGiet-Landuyt after amendment to postpone the entry into force of this law again, this time until 1 January 2003.

This global arrangement of the work under the leadership of the majority and of the minister, led to the fact that we are now confronted with the situation that there is no enforceable disciplinary procedure with respect to the magistrates or to the staff of the griffies and the prosecutors. In other words, there can be no response when a magistrate or a staff member of the griffies and the parquets commits a deontological mistake. That is the result of this policy and that is not to be proud of.

The story of the CD&V is not over. Indeed, this legislation and the result of it were so narrowed that the CD&V group asked the Chairman of the Committee on Justice that a manual for all those engaged in disciplinary proceedings be added to the report, which specifies when which legislation is exactly applicable before 31 December 2001, from 1 January 2002 until the entry into force of the Coveliers Act and beyond.

The Minister of Justice issued a note to act as a legal guide for the magistrates and specifically outlined how to respond to the negligence of the magistrates and of the staff of the griffs and prosecutors.

However, when studying this note, we identified a number of gaps. Finally, a final version of the note was added to the report, as the guide for magistrates.

In order to make the legal uncertainty even greater, the Minister of Justice delivered a note to the magistrates, holding the manual for how to deal with disciplinary problems, negligences and the like from now on. However, this note differs from the note attached to the report, in particular as regards the disciplinary infringement procedures which were initiated before the entry into force of the Act of 7 May 1999 and which were not settled on 1 January 2002. In the note submitted to the magistrates, it appears that the procedure of the Act of 7 May 1999 is not applicable, while the note attached to the report clearly stipulates that that procedure is still applicable until Mr Coveliers’ bill comes into force.

There is therefore now total legal uncertainty with regard to the ongoing procedures mentioned in the note attached to the report in that regard reference is made to the new law — following the proposal at that time by Mr. Giet and Landuyt — while the Minister’s note to the magistrates stipulates that this law is not applicable in that regard.

Mr. Speaker, in the given circumstances and in view of the enormous misconduct that has been committed in this matter, I ask you to send this proposal back to the committee in order to create clarity. It is not possible that on the ground one does not know at all how to respond to negligence. In this regard, you may remember that Kamerbreed was assumed that one should have the possibilities to respond to negligence.

I first request the return to the committee in order to clarify the contradiction between the current note and the note that the minister has transmitted to the magistrates. In this way, we are not co-responsible for the current total legal uncertainty regarding the subject of the discipline.

Mr. Speaker, I made it clear last week in the committee that none of us is proud of the work we have prepared. We tried to find a solution in some way with the resources that still existed.

We have attached this note to the report on your question, with the approval of the whole committee. We even had to improve them ultimately, as the original Dutch-language version differed from the correct French-language version. In the end, we corrected things.

Everyone has their responsibilities. Today we are discussing here a bill on which parliamentary work has been completed. We have added a clear note to the report. This report shows that the committee and the minister address this note. We do not intervene in the contradictions that may arise from a directive given before the law has been passed. At the moment there is no law. The law of 7 May 1999 remains applicable and therefore it is necessary to take into account ipso facto the entry into force of the law of 7 May 1999 on 1 January 1999. I invite the Minister to eventually evaluate whether he should forward improvements to the magistrates, now or when the law is there. We have in the note very clearly outlined all the possibilities that may arise. This is the task of the committee and the plenary session within the framework of the work.

I think the President of the Justice Committee is right. In principle, we should not take into account legislative proposals that could sometimes come about fundamental reforms in the discipline. I share your opinion on this. We tried to anticipate and give a guide. The problem is that the Minister takes into account such a bill. In the letter he sent to the magistrates, he expressly states that the law of 7 May 1999 came into force on 1 January 2002. He draws attention to the following. I read the letter before, Mr. Coveliers.

I quote: "In this I draw your attention to a bill repealing the law of 7 May 1999, which was submitted to the House on 6 December 2001. As a result of this bill, which is currently under consideration, the law of 7 May 1999 would be considered with retroactive effect never to have entered into force.”

On 7 December, a draft law amending the disciplinary law of magistrates was submitted. According to the bill, to which the Minister refers, he says, the following rules apply. The rules mentioned by him differ from what we have drawn up here as a guide for those who will have to deal with the discipline. This is to point you to the total uncertainty of those who are involved in the field with this matter. It is not just a procedural matter. When today a magistrate makes a grave mistake, one is simply unable to respond to it. At least there are clear contradictions that, obviously, will be used in the procedures, if any, abused. It has created uncertainty. Consequently, the chaos in discipline policy is total. I think the policy here completely fails.

Mr. Chairman of the Committee on Justice, colleagues, we cannot agree with this, and — the Chairman of the Committee on Justice has said that everyone assumes his responsibility — I explicitly ask the Minister of Justice what arrangement is applicable.Is it the arrangement as in the note attached to the report, corrected on the basis of the observations of the legislative services of the Chamber, or the note transmitted to the magistrates? In this way, at least that uncertainty can be removed.

This is my concrete question. You may be sensitive to this matter. We cannot do half work here. On the contrary, we must deliver quality work, so that we can make clear to our magistrates in the field what discipline regime applies and ⁇ how we can act towards people who fail and who thus compromise the global assessment, the Justice and the credibility of the government.

This has already been discussed in the committee.

I have asked to discuss it in the committee. By the way, it is a new given.

Mr. Speaker, Mr. Van Parys, I think that we both are concerned about delivering quality work, but I say — and I think I cannot be contradicted in that regard — that what is on the table here today can be considered within the limits of what was still possible. After all, due to the fact that no new disciplinary arrangements were dealt with and the law of 7 May 1999 came into force on 1 January, we had to find emergency solutions. I have repeatedly emphasized that none of us can be proud of this. Within its limits, however, I think that the text that is on the table is out.

The possible circulars, which I, by the way, do not know and which were not addressed to me, the Minister may explain and indicate in what extent they were issued, to whom, about what and under what circumstances. I cannot express my opinion on texts or designs that are not addressed to me and, in addition, I can ⁇ not take into account random texts and/or designs that have yet to be dealt with.

Mr. Van Parys, I think you requested the referral to the committee. I’ll let them deal with it later.

I also asked a specific question to the Minister of Justice.

I will ask him to answer after your two explanations.

I will listen to him with great attention.

Mr. Speaker, Mr. Minister, dear colleagues, as in all matters concerning justice, we must unfortunately once again see a lack of seriousness on the part of the government.

Indeed, the law of 7 May 1999 amending the Judicial Code as regards the disciplinary regime applicable to the members of the judicial order should have entered into force on 1 January 2001. However, this entry into force was postponed, for the first time, to 1 January 2002. The Minister of Justice then justified this postponement by the need to include in the 1999 law a disciplinary regime for referendums, prosecutor’s lawyers and secretaries and by the need to take the enforcement decrees indispensable for the establishment of the National Disciplinary Council. But in reality, nothing has been done, except the submission in 2001 of a bill by which the government intended to replace the law of 7 May 1999!

The proposal 1552, submitted by the colleague and friend, Mr. Coveliers, finally, provides for a new postponement of the entry into force of the law of 7 May 1999 to 1 January 2003, in order to allow the adoption by parliament of the new regime proposed by the draft government law. It is clear that this text – as the president said – is not perfect! Also, in the face of this lack of seriousness and this lack of action of the government, will our group not be able to support this bill: we will therefore abstain to tell the Minister of Justice that it is high time to take justice seriously in this country!

Mr. Speaker, I will keep it brief, because I am ⁇ pleased to have just heard that my circle of friends has once again expanded. I am very pleased with this, colleague.

Second, colleagues, if the law of May 1999 had been perfect, then we would have had no problems. The 1999 law was initially a proposal, but later became a draft that was supported by the government. There was a problem, but we have tried to solve it in a practical way by challenging the entry into force. This law is too short to waste many more words on it, Mr. Speaker. Their

I thank you, Mr. Speaker, for the composition of the press report, which includes a number of newspapers that are difficult to obtain in the part of the country where I live, which is due to concentrations and so on. In these press releases are often interesting things. I quote from the Importance of Limburg of Thursday, 24 January 2002. The quote is as follows — the part on the dismissal I skip: “The CD&V should pay attention for a second reason. The party is right when it claims that a whole series of matters are still failing, but one cannot expect a government without CD&V to resolve in no less than three years of time what for 50 years governments with CD&V and mostly led by a CD&V Prime Minister, have failed. By doing so, the whole CD&V makes itself ridiculous. Again a regrettable case, because the CD&V is so much better able.” So, ladies and gentlemen of the CD&V, do better.

Mr. President, I think Mr. Coveliers is wrong. The law adopted here by the previous legislature was created on the basis of a bill proposed by our then colleague Renaat Landuyt and our current colleague Thierry Giet. This bill has, by the way, gained a large majority in this parliament, including the VLD group at the time. Also the current Minister of Justice has approved the law-GietLanduyt and I have heard that the then senator Coveliers has done this too. The past and the past are two. There are obviously two misfortunes in this parliament. In the past, the CD&V group has provided logistical support for the implementation of this law, and I would like to add a second element, Mr. Coveliers. If there is currently no disciplinary arrangement for the staff of the officers and the prosecutors, this is due to the lack of any serious initiative due to the majority and due to the Minister of Justice. Here too, the CD&V group — and also colleague Giet — at least made the effort to submit a bill. We submitted this bill on 3 April 2000, in order to effectively fill this gap. That was our alternative and it wasn’t listed on the prime minister’s blank paper a few days ago. So I would like to say that from time to time one must correctly cite and situate and we therefore ask for the resignation of colleague Coveliers.

Mr. Van Parys, many of us have several misfortunes.

Mr. Speaker, I note that colleague Van Parys does not only request the resignation of the Minister of Justice for the seven hundred and thirty-two times, but that he even dares to address me. I am waiting for the action and I will, of course, in consultation with the colleagues of the Senate, have to determine to what extent it is possible.

Mr. Speaker, I will respond briefly. The law of 7 May 1999 — even if it was created on the basis of a proposal from the then colleagues Giet and Landuyt — has, of course, passed the so-called test. This means that she was approved in the Chamber, went to the Senate and from there returned to the Chamber. It has thus turned from a bill to a bill and has thus bound everyone, including the then government.

That proves that not all the work of a parliament is perfect, it is the work of the people. Not myself, but the administration of the Directorate-General of the Judicial System has determined that there are no less than twenty-five reasons why this law is inapplicable. In addition, the law contains a number of fundamental shortcomings. The main disadvantage was that the officer staff was forgotten and that there was no appeal against the first chairman of the Court of Cassation, the federal prosecutor, the members of the federal prosecutor’s office and the additional magistrates.

Therefore you will understand that an effort had to be made to re-establish this law. The major difference is that the bill, which was submitted on 7 December 2001 and is on the agenda of the next week, has been approved by the State Council. That advice should have been delivered within the month, but it took three months. It has also received an opinion due to the High Council for Justice, which has also taken over three months. Given the involvement of the office and parquet staff, the draft also had to be subject to the trade union consultation, which was concluded in October 2001.

We must admit that it is not an ideal work, but rather than formulating a series of negative considerations about it, I think it is a meritorious proposal. It provides a practical solution in the short term. And with this I answer the question of Mr. Van Parys: the work will immediately also form a basis for those who will be called to bow over the discipline files.

I also urge the Chairman of the Justice Committee to deal with the government’s draft law, with the three-fold opinion. Only then will we deliver truly positive work and benefit everyone, not least the magistrates.

Mr. Speaker, the Minister has not yet answered the question which manual now applies: the manual attached to the report or the manual forwarded by the Minister to the magistrates? It is of fundamental importance because it is about the pending procedures. If someone has wronged something and if this procedure is in force from 1 January 2002, what legislation is applicable? On the basis of the note attached to the report it is the law-Giet-Landuyt and on the basis of the instructions of the minister it is not so.

Mr. Minister, you understand that it is crucial for the magistrates to get exclusion in this matter so that they know how to respond to errors, negligences and failures.

The answer has been given. It will be enough to read the comprehensive report. I have said that the note attached to the parliamentary documents are the documents on which one can and will be based.

What was the answer, Mr. Minister?

With all of Paris, but not with me.