Proposition 50K1553

Projet de loi modifiant la deuxième partie, livre II, titre V, du Code judiciaire relatif à la discipline et rapportant 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 ¶

Submitted by

Groen Open Vld Vooruit PS | SP Ecolo MR Verhofstadt Ⅰ

Submission date

Dec. 7, 2001

Official page

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Status

Adopted

Requirement

Simple

Subjects

administrative sanction judicial power disciplinary proceedings

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Discussion ¶

June 6, 2002 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mrs. Minister, Mr. Minister, colleagues, the Justice Committee voted on the bill and the three bills at the meeting on Tuesday 21 May 2002. Previously, several meetings were devoted to the problem and two hearings were organized. The first hearing was held on 19 February 2002 with Mr Dujardin and Mr Deriemaecker, respectively Attorney General and Attorney General at the Court of Cassation. The second hearing was held on 19 March 2002 with a number of representatives of trade unions and trade unions.

The names can be found in the report.

What is the content of the bill as it was submitted by the Minister? The Act of 7 May 1999 had amended the disciplinary law for the members of the judicial order by amending the Judicial Code, but shows a number of shortcomings which make the law not enforceable. The draft law aims to replace that law on the basis of three objectives: first, to increase the readability of the provisions of the law, second, to fill out the gaps of the law and finally, to replace some provisions for the sake of coherence or opportunity. An additional starting point was the avoidance of a corporatist approach by the disciplinary judicial authorities. The objectives and principles of the Act of 7 May 1999 were ⁇ ined.

The Minister went deeper into the main gaps that the draft law complements. There was no disciplinary arrangement for the first chairman of the Court of Cassation, the federal prosecutor and the additional judges. The Act of 7 May 1999 does not contain provisions concerning the composition of the National Disciplinary Council and does not provide the King with a legal basis for drafting rules concerning its composition.

A number of choices made in the current draft law differ from those of the law of 7 May 1999, including on the national disciplinary council. With two exceptions, the National Disciplinary Council is no longer a disciplinary authority and no longer fulfils the role of an appeal body. His main task will now consist of investigating the facts with a view to imposing a severe punishment and providing advice on the punishment to be applied. Furthermore, the same scheme is applied for all relevant personnel categories, so that the national disciplinary council can also exercise investigative and advisory powers in respect of the members of the Court of Cassation.

The power to act as a disciplinary authority is divided in the draft law among the King, the Minister of Justice, the Court of Cassation, the courts of appeal, the labour courts, the chiefs of corps, the chief greffiers and the chief secretaries. The light penalties fall within the competence of the immediate higher authority of the person suspected of a disciplinary error. Consequently, in principle, the chief of the corps is competent with respect to magistrates. In this way, he gets a means at his disposal to properly perform his role as a manager. For severe penalties, the national disciplinary council and a disciplinary authority of the higher level should act. Indeed, the Government considers it not appropriate that a government which can initiate disciplinary proceedings, conduct the investigation, issue a judgment and impose penalties that have consequences on the financial level and on the career of the person concerned. Higher professions are always possible.

The Minister then outlined the course of the disciplinary procedure. With regard to light penalties, the procedure is fully entrusted to the disciplinary authority, which acts as both prosecutor, investigator and judge. With regard to severe penalties, the procedure is carried out through different bodies. The authority competent to impose light penalties which, after examining the facts, considers that a heavy penalty should be applied, shall refer the case to the national disciplinary council. Once the investigation has been completed, the National Disciplinary Board shall, after consultation, forward the file to the authority competent to impose a severe penalty.

However, this scheme does not apply to two cases. In the event of a disciplinary procedure on the charge of the first chairman of the Court of Cassation, the national disciplinary council shall appear for light penalties. For the heavy penalties, the case is brought before the united chambers of the Court of Cassation. Furthermore, the national disciplinary council has full competence for disciplinary proceedings in the case of delegation outside a court, chief, prosecutor’s office or secretariat.

The authors of the proposals have been able to explain their proposals. Mr. Van Parys announced that he would amend the bill to adjust it in the direction of the bill submitted by him and a few CD&V colleagues.

The proposal has a clear and different purpose than the draft. CD&V finds it much more appropriate to give the handling of disciplinary matters to the hands of an external body, which would be better able to make decisions in all objectivity. Therefore, the bill provides for five discipline lines, each having jurisdiction over a jurisdiction. In addition, according to colleague Van Parys, the bill gives too much power to the Minister of Justice.

Mr. Giet’s bill did not go so far as to change the powers of the National Disciplinary Council, as determined in the law of 7 May 1999, but this colleague does agree to have the bill as the basis for the discussion.

Collega Erdman, Chairman of the Committee on Justice, argues that his bill is void if the bill with the envisaged amendments to Article 427quater of the Judicial Code — the title of this proposal — would be adopted. The latter happened, which led to the disappearance of the bill as well.

During the discussion, on the basis of the hearings, the Government formulated some amendments — and submitted them — which partly responded to the comments made. Thus it was determined that the competence of the National Disciplinary Council is uniform for all. This means that this committee examines the facts eligible to be punished with a heavy punishment, and gives advice on the punishment to be imposed.

Subsequently, the text included that the Prosecutor’s Office may initiate a disciplinary procedure with any disciplinary authority and may also initiate an appeal. In order to address the concern that, even in the case of light penalties, a distinction should be made between the person conducting the investigation and the person imposing the light penalty, it was decided that the authority competent to initiate the disciplinary action may designate a person of at least equal rank to conduct the investigation.

With regard to the members of the Prosecutor’s Office, the referents, the prosecutor’s lawyers, the secretaries and the secretaries, the Minister of Justice had the power to impose severe penalties. Now, according to the proposal of the Court of Cassation, the possibility of appeal is placed as far as possible with the Minister of Justice.

Another amendment concerns those persons of the judicial system who carry out a function other than that in which they were appointed. They remain subject to the disciplinary authority competent for the office in which they were appointed. The appeal in Cassation, referred to in Article 610 of the Judicial Code, was restored. Some refinements were made in the context of sending the disciplinary file to the authority competent to impose a heavy penalty. As a result, a distinction was made between severe punishments of the first degree and of the second degree; you will find the details thereof in the relatively subtle report — I hope that I do not need to highlight all that here.

Collega Van Parys has submitted a number of amendments to the committee in order to entrust the disciplinary procedure to an external, independent and impartial body and to exclude cumulation between prosecution and investigative acts. Moreover, those amendments correspond to a large extent, if not entirely, to the content of the proposal of colleague Van Parys, which he brought back through amendments during the discussion. This means that in certain cases the National Disciplinary Council should also be able to take a decision on severe disciplinary penalties and on the appeal against certain penalties. The powers of the Minister of Justice should be limited in certain, well-defined cases. After that, colleague Van Parys also wants to maintain the principle that the defendant is heard and punished by his peers for the officers, secretaries and staff members of the offices and secretaries. These amendments were discussed for a long time, but all were rejected.

Mr. Bourgeois and Mr. Erdman have submitted some technical amendments with mainly linguistic improvements. These amendments were adopted.

A number of questions were asked for clarification to the Minister of Justice. He responded in detail; the answers are presented in the written report to which I refer.

Despite the particular attention paid by Parliament’s services to that report, for which I congratulate them, one mistake has been made in the report. I take responsibility for this and apologize to Mr Van Parys, because it is about him. On page 27 of the report, I have amendment no. 6 on Article 13, which is from the hands of the Government, is entrusted to him. Apologize to me for that. This is an amendment from the government and not from Mr. Van Parys. That amendment was adopted.

Ultimately, the Justice Committee adopted the bill with nine votes in favour, three votes against and one abstinence.

The reporter, thank you. For the general discussion, Mr. Van Parys, Bourgeois and Schoofs are registered.

Mr. Speaker, Mr. Minister, colleagues, I will be brief because we have already discussed this draft in detail in the committee. I thank Mr Coveliers for his excellent report and the correction of the threat arising from the association between the government and myself. This is indeed best corrected. I will explain why this is the best. Mr. Coveliers, thank you for your correct and excellent reporting.

Colleagues, the Chamber had already taken legal initiatives on a significant part of that matter in question, in particular the disciplinary regime for magistrates. On the proposal of colleague Giet and our then colleague Landuyt, the law of 7 May 1999 had been adopted, providing for the legal regulation of the disciplinary law for magistrates. This law had to enter into force on 1 January 2001. There is a very difficult process before the adoption of this legislation. The entry into force of the law of 7 May 1999 was postponed twice, once until 1 January 2002 and once until 1 January 2003. The CD&V group, in particular myself and the gentlemen Verherstraeten and Vandeurzen, had, meanwhile, submitted a bill for the establishment of a legal arrangement for the staff of the offices and the prosecutors. Other colleagues have also taken initiatives in this regard.

The [...]

Mrs. Talhaoui, I hope I do not disturb you in your conversations.

Mr. Erdman please.

Meanwhile, the government’s bill had come into being, which is based on a very different philosophy than the bill of the gentlemen Giet and Landuyt and also a different philosophy than the bill of the CD&V.

I would like to come up with the main objections of our group to the bill that is now being presented. Our main objection is that in that bill the powers of the national disciplinary council are referred to the background. We have a different view which is also expressed in the bill and in the law of 7 May 1999. With regard to the discipline of the magistrates, the members of the staff of the offices and the staff of the prosecutors, we need an external body that judges the dysfunctions, mistakes and failures of the magistrates and the staff of the offices and prosecutors.

We need an external body instead of the organs of the magistrates themselves, because we have the important task of demonstrating to the public opinion that things are not regulated by one another. I would not dare to argue that this is the intention. When we entrust disciplinary powers to the organs of the magistrates themselves, there will always be the impression in the outside world that things are regulated by those who organize the case internally. We are in favor of a national disciplinary council as an independent, external body. Thus, it is also made clear to the outside world that failing staff of parquet and griffies is judged by an external body. So we have a different vision. Therefore, we will not approve the bill. We also consider that too extensive powers are conferred on the Minister of Justice.

Finally, the quality of the texts submitted to Parliament and the committee was deplorable. Mr. Chairman of the CD&V Group, the services of the Chamber have made no less than 100 corrections after the discussions in the committee. This is a sad record. There are no insignificant corrections. I pick out one. In the present draft, the entry into force of the law was foreseen 18 months after its publication. If it had been approved, we would have created the incredible situation in which today the regulation in the Judicial Code applies, while from 1 January 2003 the law of 7 May 1999 on discipline of magistrates would come into force and only a few months later the law adopted today. I cite that example to show how the Minister of Justice of this legislature is currently doing legalist. Thanks to the services of the Chamber and thanks to the amendment of the Chairman of the Committee on Justice, we have been able to fix that evil. Again, it shows how we should function in Parliament. One hundred amendments for one bill, which is ⁇ important to respond to the failure of judicial staff, as we have identified in the parliamentary investigation committees, that is of the good too much. The word “good” does not fit here, by the way.

Mr. Speaker, Mr. Minister, colleagues, in those circumstances, we will not approve the bill.

Mr. Speaker, Mr. Minister, colleagues, due to the very circumstantial criticism of Mr. Van Parys, I fear that I will fall into repeat. Nevertheless, I would also like to note on behalf of the Flemish Bloc that the legislative work has not come too late, but yet very late.

Basically, the regulation does not comply with the Flemish Block.

Mr. Speaker, Mr. Minister, Ladies and Gentlemen, we will vote against this bill for two reasons. First, the principle of judgment by his peers was generally accepted in the judicial world and that is not unshortedly ⁇ ined. That is regrettable. The principle of judgment by his peers is not extended to the professional groups of the officers, of the secretaries and of the staff of the officers and the prosecutors, who, however, form the basis of the pyramid of our judicial world. This may give them the impression that they are more or less quantité négligeable. Without good soldiers, however, an army cannot function. This also applies to the judicial world, in which they are the soldiers.

However, according to the Flemish Bloc, these positions ⁇ possess the professional seriousness, knowledge, experience and expertise to judge their peers, although not exclusively. Nothing will prevent that, when a disciplinary measure is to be taken in respect of a secretary, magistrates and externals also sit in the disciplinary college. I mention professors and lecturers at the university, as stated in the bill.

The second objection of the Flemish Bloc against this arrangement is that the Minister of Justice has too much power to impose severe disciplinary penalties, especially in appeal and therefore in final instance. The reverse side of the medal is that the National Disciplinary Council will largely only have competence as an advisory body. So we support the argument of CD&V. We also planned to support CD&V’s legislative proposals, in particular that an external, independent and impartial body would judge in the disciplinary procedure. Unfortunately, it should not have been. These proposals were not accepted as the starting point of the discussion. Finally, as a sign of politics, this bill cannot be unambiguously understood by the judicial world as a demonstration of trust in that same judicial world. The judiciary shall not be able to judge its own members in all its ranks and, if necessary, to condemn them. By approving this draft law, we violate this principle of the judgment of our own members by the judicial world, which we consider to be too extensive. We therefore do not sufficiently support the judicial world in its essence of the third pillar of the trias politica.

Mr. Speaker, Mr. Minister, Ladies and Gentlemen, I will be brief. What I wanted to say, I have already said during the discussion in the Committee on Justice.

Disciplinary law is primarily a matter of procedural law, of organization. Disciplinary law has little to do with material law. The problems that arise are primarily related to procedure, with adequate safeguards, problems of limitation, problems of a reasonable time within which a case is handled, problems of interference with disciplinary law criminal law and problems of third-party rights.

The design provides a solution to all these problems, sometimes multiple, sometimes to a lesser extent, to the extent that a better, coherent arrangement than before can be achieved. The design is not perfect, but a general review of it can still be positive.

Of course, it contains little material right. A change has already been introduced in the previous legislation, Mr. Minister. For the applicant, it is very important that magistrates and judges who, by their actions or omissions, harm the process, can also be the subject of a disciplinary procedure. This is very important and should also be aware of by the outside world. Another consideration, which is also partly addressed to you, Mr. Speaker: I received the report again only on the day I had to submit my comments on it, more specifically on Monday morning.

Colleagues, there are problems with the postal service and I do not know if West Flanders is being fished.

Mr. Speaker, I do not think so, but I would like to point out that this course of affairs in this particular case had the adverse consequence that I was not informed of a report until Monday evening, about which I had to submit my comments no later than Monday afternoon, at 12 p.m.

I would like to clarify one point, which I attach great importance to. Mr. Minister, my question — which I have already asked during the parliamentary discussion — is only partially reflected in Article 18. It deals with the very serious consequences of a dismissal or dismissal, in which a person also loses his pension rights, as opposed to an ex officio dismissal. This is not the case in the case of an official dismissal, but in the case of dismissal or dismissal. I then asked your employee whether it was true that even in the case where the person concerned loses his pension rights, he can still, in an equivalent manner and on the basis of the Staff Regulations, recover from the pension rights of the period provided for this purpose. But I did not receive a response, nor read. You may not be able to give the answer right now, but I would appreciate getting an answer sooner or later. In many cases, this sanction is too extensive and even inhumane. For example, a person who has performed well for twenty to thirty years, but then commits a very serious offence, can be cut off from his position and lose all his social rights from today to tomorrow. This does not only punish the person concerned, but the whole family and I think this goes too far. I have a lot of trouble with this and some colleagues agreed with me on this during the previous parliamentary term. I would like to know whether the person concerned, who is subject to such an extremely draconian sanction, retains a minimum of pension rights.