Proposition 52K2161

Projet de loi portant des dispositions diverses en matière de Justice (II).

General information ¶

Submitted by

CD&V the Van Rompuy government

Submission date

Sept. 14, 2009

Official page

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Status

Adopted

Requirement

Simple

Subjects

EC Directive EC Regulation descendant civil law civil procedure expert's report ordered by a court violence physical aggression non-profit organisation appeal damages criminal procedure organisation detention before trial

Voting ¶

Voted to adopt

CD&V LE PS | SP Open Vld MR

Abstained from voting

Groen Vooruit Ecolo N-VA LDD FN VB

Party dissidents ¶

• Peter Luykx (CD&V) abstained from voting.

Contact form ¶

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Discussion ¶

Dec. 15, 2009 | Plenary session (Chamber of representatives)

Full source

I assume that Mr Renaat Landuyt refers to his excellent report.

The [...]

Mr Annemans, there are no guarantees.

The [...]

Mr. Speaker, there is a certainty that it may not be a Flemish Interest, but we are present here.

And we are prepared to present the report (...)

That does not happen. Mr Landuyt refers to his report.

Mr. Terwingen and Mrs. De Schamphelaere have been registered in the general discussion.

Ladies and gentlemen, what do you propose? They are two members of your group.

If the registered speakers are not there, I assume that I can remove them from the speaker list.

Mr. Speaker, would it not be interesting to take a ten-minute pause, so that the rapporteurs of the various projects that are on the agenda after the law-programme but now passing can be present? Their group could then inform them. For my part, I have already passed the message to the level of my group.

In the meantime, I note that Ms. Marghem asked for the floor in the general discussion of the bill containing various provisions in the field of justice. A member already wants to intervene. We’ll see what happens to the other members.

I have heard Mrs. Gerkens. Nevertheless, our work must move forward. If the members are unable to attend a day of session, it is because they are unable to fulfill their parliamentary mission!

Mrs. Marghem is here and Mr. Terwingen is also present in the meantime.

However, I would like to point out that an amendment has been submitted to the previous draft, thereby referring the draft to the Committee on Justice and suspending its plenary examination at this time. Now we can try to finish everything quickly. I am in favour of this, but we must follow a number of rules so that colleagues who have prepared a speech also get the chance to keep it. That is my duty as president.

Should I give Mrs. Marghem or Mr. Terwingen the word first? Mr. Terwingen, you were the first registered speaker. You leave the benefit to Mrs. Marghem, but she refers again to you. Can we get out? Men first, says Mrs. Marghem.

Mr. Gates, you have the word.

The [...]

I will serve Mr. Annemans on his tips and not pull it too long.

Mr. Speaker, Mr. Minister, in the context of the discussion of the draft containing various provisions on Justice, I would like to summarize two elements that are of interest to our group.

First, often drafts containing various provisions involve a number of technical adjustments of laws already in force. There are a lot of provisions to be found about expert investigation. In this regard, a law of 2007 has caused a lot of practical problems. The colleagues who have examined the various provisions on that point will find that many adjustments are being made, which are primarily of a technical nature, but for which the committee has done its work and has sought to make clear improvements.

In this regard, it is of particular importance that parties in the context of such expert investigations can now decide themselves to propose an expert. That possibility was removed in the legislation, but it is now being revised. The appointment of an expert by the parties is again explicitly possible.

In addition, the parties may also request a suspension of the expert investigation. There was also a practical problem in this area. Often during expert sessions, parties seek consensus at a given moment. The law did not allow that. The expertise had to continue. At this time, there is once again an opportunity for the parties to address these matters practically and to ask the expert to stop the investigation. This is also an important adjustment.

A third pain point that has been addressed in practice is also being adjusted. The previously mandatory organization of an installation meeting will be abolished. That is a good point, which makes the parties once again more in control of the dispute, which has a number of practical advantages and no longer requires the formal convocation of the installation meeting.

Fourth, if there are problems with the payment of advances to the expert, the expert may, in consultation with the court, decide not to proceed further. In other words, if the parties do not consign, there may be a suspension of the expert report and of the expert expertise tout court, giving additional time to move first to consignation. In this way, there is no time and energy wasted without being paid.

I think, Mr. Speaker, that these technical adjustments will be very beneficial to the practice. The members of Parliament who have dealt with these aspects of the various provisions will have received more emails from the workplace that they wanted more adjustments there and that they wanted to think more about this law. The law dates from 2007. These adjustments are of a technical nature. I call on the Minister of Justice, however, to seek a revision of the law, or to evaluate the law in a more thorough way.

In fact, questions are also raised about the principle decisions taken in 2007 in connection with the expert investigation. I think we should evaluate this further. The adjustments that are now on the table are a step forward.

Mr. Speaker, I would like to briefly point out a second aspect which is also included in the draft of various provisions on Justice. Maybe I can explain it now? I do not know if you have defined thematic points. It was about the expert investigation within the framework of the various provisions.

It is important to point out the suitability judgments, which also contain various provisions in the design. I would like to take this opportunity to thank the Members of Parliament, as well as the Minister and, in this case, also the Secretary of State responsible for Family Law, for giving Parliament the opportunity to take an initiative on judgments on suitability.

Within the framework of the articles now on the table, the majority has submitted an amendment that has been supported by all the other parties. It is about the suitability judgment for adoption.

Mr. Speaker, the problem is that the judgments on suitability were limited in time. In October 2008, we already passed an earlier law on this subject, which stipulates that judgments on suitability were extended by one year. The aforementioned extension was not enough. Unfortunately, a number of candidate adoptive parents threatened, despite the aforementioned extension, still to see their suitability judgment lost.

Therefore, an amendment on this subject was unanimously adopted in the committee, I repeat. The amendment aims to extend the validity judgments to two years longer than the current judgments. This means that the interested parties can request a two-year extension within five months before the expiry of the current eligibility period. The aforementioned two-year period is further extended. They can therefore be extended by two years each time.

The aforementioned amendment is not only beneficial to the adoptive parents, who are otherwise left behind with great frustration, because they have first received a judgment of suitability, but then still cannot adopt, because, for example, the procedures abroad take too long. In this regard, we also do good for the adopted children, who thus get more assurance that their case will be settled in the shorter term and thus they will have a new future in our country.

Mr. Speaker, Mr. Minister, dear colleagues, I thank you for giving me time to take my mark in this assembly during which you are advancing on a train of hell. It was therefore necessary to be inspired at the right time, which I will endeavour to do for the subject that occupies us.

Like his predecessor, Mr. Vandeurzen announced that we are now called to vote on texts in various measures, aimed at improving or correcting the application of certain laws, as indicated by their title.

As for methodology, practicing this type of exercise can be interesting, but it must always fit within well-defined limits. In fact, it is necessary to take into account the lessons learned from practice and to adapt legislation to facilitate, simplify or clarify – at least – the life of prosecutors and judicial professionals. It is not conceivable to introduce by this means large-scale reforms that scatter the debate and surprise everyone in an inappropriate way; this has been recalled by several speakers.

From this point of view, you have executed the contract perfectly. You have avoided using the law on the various provisions as a fork-all for large-scale provisions and attempting to spark the debate. You have used this method very correctly. For this purpose, you received the support of colleagues who took the opportunity to submit amendments aimed at correcting other legislation.

I will focus my intervention primarily on the added value of the measures voted in respect of the justiciable and will devote a large part to the improvement of the expert procedure voted in 2007, which the provisions submitted to us intend to bring.

Let’s talk about judicial expertise. The methodology is ideal. After leaving practice, jurisprudence and doctrine, with a two-year retreat since the reform dates from 2007, you have tried to respond to the observations and suggestions of improvement that these years of experience have aroused.

We are ⁇ pleased that the bill has responded to two concerns that have raised us and for which we have submitted a bill.

The first is the problem of the installation meeting. The law of 15 May 2007 stipulates that the court that has ordered an expert assessment must organize an installation meeting prior to the expert assessment. The legislator at that time wanted to draw on good practice in certain courts, in order to shorten the procedure and enhance its effectiveness. However, if such a meeting has all its importance for expertises of a certain scale, it cannot be justified when it is an expert without particular difficulty. In this latter hypothesis, judges often ask the parties if they give up the installation meeting. This is what happens in practice, you know. It is therefore appropriate to question the principle of the automaticity of this installation meeting, as does the bill.

He proposes that this meeting be held only if the judge considers it necessary or if the request is made by all parties. In this way, the installation meeting will continue to play its full role of channeling the expert mission and only when necessary. In addition, the text proposes that this installation meeting may be held in the most appropriate places: the court, the places to be expertised or the office of the expert. The expert himself may not be present or may only be virtually present through modern means of communication.

The second problem that we had questioned concerned the prefinancing by the experts of their work. Indeed, under the aforementioned law of 15 May 2007, it is provided that the judge now decides on the issue of provisions on fees and fixes the amount to be recorded at the court office or at a banking institution and possibly the provisions to be released in the context of the expert assessment. Likewise, the magistrate determines by which party and within what time it must be done.

For the MR group, the system of recording provisions of fees at the court’s office is not adequate. In fact, the transplant is not a bank and the secretary is not a banker. He has many other tasks to accomplish, you know, and the management of the consignments and the releases of the provisions of expertise comes even heavier the list of his tasks.

Justice buildings are also not equipped to perform such a role in terms of security or equipment. We therefore consider that it is better to encourage the parties to resort to the opening of a special bank account, as the text of the 2007 law already allows.

The bill does not relate to the system of consignments to the graft. However, it introduces the possibility of a delegation to the King regarding the determination of the modalities of consignment. We hope that the government will be able to seize this opportunity to explore the track for a generalization of this bank deposit system by negotiating with the sector on the question of the tariffs of these operations so that their cost is reduced as much as possible.

The bill also proposes pragmatic solutions to the problem of pre-financing. The system introduced by the 2007 law prohibits experts from being paid directly from the parties. It was established to end some abuse practices. It is in this sense that it must be read. The parties therefore wishing not to mortgage their chances eventually agreed to immediately pay the provision requested by the expert, regardless of the amount, which could lead to some abuse.

However, it appears that this new provision leads to new litigation in the litigation, which is unfortunately regrettable and must be avoided at all costs. The award of fees and provisions of fees becomes a real matter of debate and requires hearings dedicated exclusively to this subject. In this case, either the expert work is interrupted and left suspended until the dispute is settled, or the expert finances the work himself in advance. What you agree with, is not good either.

These negative effects are further accentuated by the fact that decisions on these issues are often made after expert work. Therefore, there is concern that some experts refuse to perform certain tasks for the courts at the great detriment of the prosecutors. Without returning to the direct payment by the party to the expert, therefore by the justiciable to the expert, the text submitted to us arranges the obligation of consignment of provision and the possible release of a part of it. It is proposed that the judge decides each time on the amount of the provision to be recorded and possibly released in favor of the expert, either in the decision that orders the expertise when there is no installation meeting or in the decision made at the end of that installation meeting.

Furthermore, the bill provides that the judge may grant an enforceable title against the party responsible for recording the provision that would not meet its obligation. The expert may, on the other hand, suspend the execution of his work as long as he does not have the proof of this consignment.

More generally, other measures clarify the judicial expertise procedure on other key points for legal practitioners and prosecutors. Thus, it is specified which types of precision intervening in the course of an expert who are or are not subject to appeal; the common choice of the parties when an expert is respected except in exceptional circumstances; the expert may not start immediately after the judgment that orders it if all the comparing parties request a suspension of the notification of that judgment, for example, to give them time to find an amicable agreement.

The outcome of all this may seem subtle in the eyes of the ardent advocates of a substantial reform of judicial expertise and, in particular, of the establishment of a status of the judicial expert guaranteeing his quality and his specific competence in the matter.

However, as I said in the introduction, Mr. Minister, the aim was not to undertake a reform of such an extent within the framework of a bill containing various provisions which I would qualify, without pessimism, as "for-all". It would not be respectful of the matter and it would be irresponsible because we do not have the means to conduct an in-depth debate in this framework for such an important reform.

The question of the status of the expert, of the management of his appointment by the judge through the existing list at the courts or other tools, as well as the implementation of a genuine training in judicial expertise constitute – you know – questions to be examined in depth, and it will be necessary to do so later.

However, I take advantage of the opportunity given to me to reiterate to the current Minister of Justice the will of the MR group to move forward in this matter and find a solution. Otherwise, no matter how beautiful the reform of the procedure is, the risk is great to fall back into the abuses and through the old, namely the lack of transparency and guarantees regarding the independence of the expert, the fundamental core of this problem.

I will now pinpoint some measures that go in the direction of clarifying the law for the citizen and which, therefore, have quite a place in the framework of a bill containing various provisions. I would like to explain a few things about adoption and childbirth.

The bill aims to put an end to divergent jurisprudence and the risk of legal uncertainty resulting from the amendment by the 2006 Act of the recognition of adulterous children by a married man and, more specifically, the replacement of the condition of homologation by a notification to the spouse of the author of the recognition.

The draft clearly states that recognitions made before the entry into force of the 2006 law remain subject to the former article 391bis of the Civil Code and that they require, in order to be definitive, an approval by the judge. In this way, the initiative to make a recognition definitive still depends on the person who made the recognition.

As regards the second part relating to adoption, the bill aims to address the problem of the expiration of judgments of aptitude for adoption, on the one hand for current emergency situations and on the other, by establishing a lasting solution for similar situations in the future.

Therefore, despite the extension of the validity period of the judgment of suitability to four years adopted last year, it must be noted, in the practice of international adoption, that this period is often insufficient for applicants for adoption to be confided a child. The proposed text changes the initial validity period of the judgment of suitability and increases it to four years.

It also introduces a new system for renewing the aptitude to be adopted before the Youth Court. This application must be made no earlier than five months before the expiry of their judgment of suitability and no later than the last day of the validity of the judgment of suitability. An update of the report of the Social Survey is transmitted to the graft. It includes an assessment of the current situation of the adopters and describes any elements that may have an impact on the aptitude to adopt, such as the birth of a biological child, a marital misunderstanding, separation or conviction.

Finally, the project extends until 31 May 2010 the judgments of suitability issued since 1 September 2005 and which will expire in the weeks and months to come. This extension of office should enable applicants for adoption to quickly submit a request for renewal of their aptitude for adoption by application of the new procedure.

Rather than correcting the validity period of the judgments of suitability to be adopted annually, the bill has appropriately chosen to provide a response preventing the urgency and entrusting the judge with the care of extending or not the judgment of suitability to be adopted according to the evolution of the family situation.

All of these choices seem appropriate. As I used to do, I will then give you a good point from the MR group regarding the bill containing various provisions. We will support this project!

Mr. Speaker, dear colleagues, the bill extending the categories of persons and the damages eligible for compensation by the Commission for financial assistance to victims of intentional violent acts is linked to the current bill. I will explain the bill very briefly so that you understand its importance before you vote on it.

Victims of violent acts whose perpetrators are either unknown or appear to be impotent remained in the cold for a long time. They were not repaid or insufficient, there was nothing provided. Their immediate relatives also often had to pay for the often very expensive medical costs. In short, misery all the way!

This deficiency was addressed by the Act of 26 March 2003 which allows a Commission for Financial Assistance to Victims of intentional violent acts as a public institution, under certain conditions, to grant financial assistance. The worst suffering could be eliminated in a number of cases.

The finality of this law of 2003 contained four points. First, providing financial assistance to victims of violent acts, relatives, parents or relatives up to the second degree. Second, it is possible to provide for an advance in the event that no final judgment has yet been made. Third, in addition to the financial assistance and the advance, grant emergency assistance if there is a delay in the granting of the aid, which causes a serious disadvantage to the applicant. Fourth, providing additional assistance if, after the granting of the aid, the disadvantage has obviously increased.

The law of 2003 seems to be complete at first glance. At first glance, this law was also complete, but quite quickly it turned out that a number of categories of victims were completely excluded from its application. A number of severe conditions remained.

In my explanation, I am referring to the third parties, neighbors, friends, who are at the time of the violent acts, whether or not at the place of the crime and who are materially or physically affected. In my explanation to the bill, I have listed a number of examples that I will not repeat all here, however, in order not to annoy you. I will only add one. In the aftermath of violent acts against the victim, for example, a neighbor’s home is hit. The neighbor does not belong to any of the reimbursable categories included in the Act of 2003, referred to in Article 31 of the Act of 1 August 1985. Therefore, he will in vain invoke an allowance from that committee.

Those are things that actually cannot, especially when we hear from press releases that more and more direct victims should appeal to the government, because more and more perpetrators of violent acts prove to be impotent or unidentifiable. In other words, more and more cases show that direct victims remain in the cold. In keeping with this reasoning for the indirect victims, I would like to call upon you to approve this bill, which aims to expand the categories of the law and a number of amounts. Thank you for your attention and I am open to your questions.

I will briefly address this bill. Two important issues hold my attention. The first is about adoption. This bill will enable couples who have already started a procedure not to renew it to examine their aptitude to adopt. All steps taken will remain valid to allow them to remain in the procedure while waiting for a child. It is capital. This law had already been retouched several times, but in the present case, the renewal of the preliminary phase of adoption is permanently structured.

Secondly, with regard to expert procedures, reforms are cyclical. The aim is obviously to make them simpler, faster and elaborate in good intelligence between the experts, the parties and the judge. Nevertheless, I would like to point out that this bill will not resolve the problem posed by the famous lists of experts approved near the courts and the status of the expert. Indeed, we received letters from experts, who mentioned that for the ninth time, the bills did not find a solution on these two points.

Certainly, it is intentionally that this bill did not legislate on these two matters that do not fall within the procedure. Since 1967, an article wants definitive lists of experts approved near the courts to be fixed in the Judicial Code, but the correct formula has not yet been found. Furthermore, the status of the expert is a completely different thing and is completely alien to procedures. Organizing a profession does not fall under the Judicial Code; I specify this to respond to experts who are sometimes dissatisfied with the texts that will soon be voted.

For the rest, I hope that the expert procedure will go better after the vote on this project.

Mr. Speaker, I will speak briefly on behalf of my group on my bank.

The three main points have already been detailed by Mrs. Marghem. However, I would like to add a few appreciations from us. Specifically with regard to recognition, the first part, we are pleased that more legal certainty has been created. The path we have taken toward more flexibility has, unfortunately, in practice led to quite a few anomalies that are removed by this design, for which I thank you.

The second part covers the expert report. In summary, this includes greater involvement of the parties in the procedure, a more flexible enforcement of procedures and also the release of notifications through modern communication technologies. These are essential and we thank you, therefore, for your very willing cooperation in the committee to consider our amendments with some benevolence in this regard. And especially the more realistic distribution of procedural initiatives, as I said. It is now less rigid: the party that thinks it needs to take action can do it now. You can also postpone when necessary. This set of procedural measures will result in expert work being at least more tailored to today’s legal and actual realities.

A third point that is very important to my group is that of adoption. We have experienced that people of very good will, especially capable and capable of adopting, were often in trouble when they wanted to carry out international adoptions, because their qualification by the court had already expired. The extension of that period, as well as the anticipation of the possibility of applying for an extension when one finds that the international procedure takes a little longer than expected, is very welcome.

However, as in the committee today, I also express some concerns about the factors that need to be taken into account in determining that suitability. You will remember, Mr. Minister, that we have some objection when the social services and the social workers come out with descriptions as “people who can hardly cope with waiting.” If one wants to adopt someone and is fully mentally set on it, then it is logical that one becomes nervous in the long run when that long wait continues. If the procedure will only be based on objectively responsible factors, we applaud also here for easing and expanding the possibilities for suitable parents to adopt.

Mr. Speaker, the former Minister of Justice has recently announced the Law on various provisions on Justice, with the intention to conduct a debate at once on a number of necessary adjustments to various legislations. I think that is a good method, provided that it is well prepared and that we can get to know the pieces well in advance and prepare ourselves well.

The Court of Cassation annually publishes a report containing many comments on problems in the interpretation of legislation, anomalies, contradictions. The Court of Cassation often makes recommendations and proposals for adjustments. Per ⁇ it would be a good method to try to carefully review the report of the Court of Cassation on this point annually, Mr. Minister. Some comments will have to lead to real bills and drafts, which are more thorough, but much will be able to be solved with small technical provisions.

If we succeed in doing that work annually, I think the work of the Court of Cassation will be very useful and we can play short on the ball to be able to tackle legislation that is poorly made and that causes difficulties in interpretation, faster. I hope we can do that in the future as well.

The present draft contains a number of important corrections, which arise, inter alia, from reports of the Court of Cassation. I will name two positive ones.

One problem that came up a year ago is the problem of supporting victims of intentional violent acts. Many political parties and political groups have submitted legislative proposals to solve this problem. Those who did not reside validly in the country did not have the right to receive support from the Victim Fund. This led to unfair situations.

Also ecologically green! He had submitted a bill. We have seen that in the present draft law several provisions have been adopted a regulation that meets us. I think this is an important step in the necessary adaptation of the legislation.

I would like to comment on the change in the terminology. I have already mentioned this in the committee. The scope of application has been slightly narrowed. We are no longer talking about survivors who are entitled to compensation, but about inheritors. We have had a whole discussion on this. Inheritors have a very specific legal meaning in Belgian law. In this way, we narrow the capabilities of the Victim Fund to allocate compensation to survivors, which is a broader understanding.

The people of the Victim Fund have assured us that they are always looking for solutions with the necessary social attitude. I can understand that, but who says that this will still be the case in a few years? I also fear that there will be more and more difficulties in applying those IPR rules if foreign victims, or victims with foreign family members, are eligible for a benefit. Then we need to look at the definition of inheritors. That is very strict. We know the term in Belgian law. It is not because person X is an inheritor of a deceased that this also applies in South America, Asia or Africa.

I hope that by this change from survivors to heirs, we will not limit the scope of these legal provisions. It is contrary to what we aim with the proposed amendment.

We have been assured at the Victim Fund that there is no problem and that the files will be handled in a very social and creative way. I hope it will be so. If there are still problems, we must quickly correct it, Mr. Minister. Maybe next year in another law various provisions.

The previous speakers have already discussed the changes to the expert study. Two years ago, a very profound amendment was made to the Judicial Code. It was then made quite quickly, without too much consultation with the stakeholders and the bays. This encountered a lot of resistance. It gave rise to many difficulties in practice: there are many expertises, lawyers are faced in construction matters and many other discussions. We need a working law. The proposed amendments to the draft law result in the correction of these important matters in order to facilitate the conduct of expert investigations in practice. It is a positive evolution.

I hope that we can do this work regularly, based on the reports of the Court of Cassation. I hope you can engage in this.