Proposition 53K1953

Projet de loi portant des dispositions diverses en matière de justice (I).

General information ¶

Submitted by

PS | SP the Di Rupo government

Submission date

Dec. 13, 2011

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

mentally disabled person judicial power

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP Open Vld MR

Voted to reject

Groen Ecolo LDD VB

Abstained from voting

N-VA

Party dissidents ¶

• Bernard Clerfayt (MR) voted to reject.
• Olivier Maingain (MR) voted to reject.
• Damien Thiéry (MR) voted to reject.
• Peter Luykx (CD&V) abstained from voting.

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 ¶

Dec. 22, 2011 | Plenary session (Chamber of representatives)

Full source

Given the advanced hour, I am not sure if everyone still has the energy to read the report. I would like to explain what is in it, but for convenience I refer to the written report.

I believe you are trusted at this stage and given the advanced time!

Five speakers are included in the general discussion: Mrs. Van Vaerenbergh, Mrs. Marghem, Mr. by Schoofs, Mr. Brotcorne and Mr. and Weyts.

Ladies and gentlemen, at this time of the morning, I will try to keep it brief.

Mrs. Minister, it is gradually becoming a custom that at the end of the year there will also be a law containing various provisions on justice. Each year, different measures containing the same provisional measures and solutions to fundamental problems are proposed. This year is no different.

We get a number of temporary measures, which in fact are also again lame tools for Justice without really continuing to address the structural problems, which require structural solutions. As mentioned, this year is no different.

This year, however, the various provisions are very varied, because in addition to the traditional leather products that are in place year after year, a number of amendments have also been submitted which, however, introduce a number of fundamental changes. Those fundamental amendments were then pursued by the committee and could not be discussed in substance.

The various provisions include five measures. I will shortly overtake them. The first measure is a temporary measure, which was introduced ten years ago – note, ten years ago – to solve a structural problem, namely judicial lag. For this judicial retardation, ten years ago it was conceived that a number of magistrates would be temporarily hired to work out the retardation. During those ten years, this measure was renewed annually or annually. This year is no different. Mrs. Minister had to come back to Parliament this year and request to renew the provisional measure. We all know where it’s stuck, we don’t have a workload measurement instrument. This is a problem that has been going on for ten years.

At the moment we do not have any concrete results. Several pilot projects have been launched, among others at the Court of Appeal of Bergen. But that had to be stopped because the court no longer wanted to cooperate with it. The project was then restarted in the Court of Appeal of Luik from zero. Therefore, it is not even clear what method to use to measure the workload.

You are just Minister of Justice. The workload measurement is now also included in the government agreement, making it under the supervision of the government. You will have to be accountable for it next year because you will have to monitor it and you will be responsible for it if no workload measurement instrument applies by next year.

Mrs. Minister, can you guarantee Parliament that you will not have to come back to Parliament next year as your predecessor, Minister De Clerck, had to do that time and again to obtain an extension of a temporary measure?

Another measure relates to the postponement of the entry into force of the law on internering. That law is actually a restoration law for a law of 1964. The Recovery Act was approved in 2007. Now the entry into force is again postponed because the implementing decisions are not yet ready, but as much as five years after the law was adopted. I refer to the opinion of the State Council, which clearly stated that the legal certainty is compromised. Five years after Parliament passed the law, the law still needs to be implemented. Colleagues, one can imagine that the circumstances have changed over that period of time. It may even be necessary for us to pass a new repair law before the first law can come into force.

Third, Mrs. Minister, if it is good, then we say it too, but this measure, of course, was made through an amendment and was thus actually pushed by the Parliament. Through this amendment, the statutory tax rates will be increased in the future from 5.5 to 6. The law will enter into force on 1 January 2012. If a penalty is imposed on the road, the penalty will be multiplied six times instead of 5.5.

This is a good measure, but we must be careful. It might have even greater effect if that fine is also effectively collected. I heard from colleague Terwingen in the committee that this measure could generate 24 million euros. If all the fines that have not yet been collected, both above and below the language limit, were to be collected, I am confident that that measure will produce even more and will not be an empty box.

Fourth, the following measure in the law containing various provisions leaves the N-VA faction with an awkward feeling. You know that the Sexual Abuse Committee has worked very well. Therefore, she has achieved results. One of the measures that came out of that committee is the possibility for victims to also appear as a civilian party with the police.

To implement this measure, a number of simple adjustments are needed. The existing form must be adapted. There must be contacts and agreements between Justice and Police to enable interaction. It is very regrettable that the entry into force must be postponed. In my view, the time period was sufficient for the measure to take effect. These were very simple adjustments. It is therefore very regrettable that these simple adjustments take so much time and that the victims of them are the asshole.

I would like to close to the last measure of the various provisions, in particular the pensions of magistrates. These are amended through an amendment. It is intended that the calculation of the pensions of the magistrates will be based on a new tantieme. The existing tantièmes of one thirty and one thirty-five would be replaced by one forty-eight. This would apply from 1 January 2012 for magistrates who are not yet 55 years old. Specifically, this means that only magistrates who are now 55 years old and have at least 15 years of experience are still covered by the existing system.

What is changing concretely? A magistrate today has to work twenty-two and a half years to have a full career. In the future he will have to work for thirty-six years. In itself, we have no problem with this. We know that everyone should contribute. Reforms are needed. Each professional category will have to contribute. Parliamentarians will also have to do this. And then the magistrates too.

The statutes are uniformized. That is in itself a good idea. We regret the working method used. On Thursday evening, the amendment was thrown on our table. Fortunately, we were postponed until the following Monday, so that we could examine the amendment in substance, because we felt that this category also deserved a thorough debate in Parliament.

Furthermore, the fact that a thorough debate had to be carried out in advance is demonstrated by the opinion of the State Council, which made a number of comments and which correctly asked whether that amendment would survive the constitutional test.

I also ask questions about this. I find it reasonable, but I think that responsibility can be inscribed in the motivation of the law. It is, of course, difficult to explain to the magistrates that, after years of assuming that they were in a different situation than other people and were therefore treated differently, they are heard from day to day that they are in the same situation and will be treated in the same way.

Mrs. Minister, I think it is responsible, but I think that professional category at least deserves that responsibility. A mere reference to the fact that there is no discrimination, because it is not so today or tomorrow, is not enough for me.

What will you do with the advice of the State Council? Can you give an explanation later?

For the whole project, I can say the following. We have examined the draft law containing various provisions. There are some good things in it, and we have also approved them in the committee, as a constructive opposition. Of course, as I just explained, we have a number of questions, some fundamental comments and therefore we cannot approve the whole draft law.

On the general request, I will try to intervene in two minutes.

This has been repeated to the envy by the members of the majority; this reform is necessary for the country and the financing of pensions in a sustainable way. Naturally, the magistrates, like other professional sectors, have been removed from the reform and this, due to the particular status attached to their function. These are people who access their position relatively late and who can continue it up to 67 years old. As a result, they fear that they will not be able to have a full career, as it will be calculated on multiples that greatly reduce the attractiveness of their pension so far. Why should this attractive character be highlighted? Because we have planned, in order to provide the vacancies, that a third path is possible and that lawyers who have, in general, fifteen or twenty years of bar have the possibility, after passing the exams, to embark on the career of magistrates. The interest is double: on the one hand, it deals with people who know the field and have proven professional maturity and, on the other hand, in order to embark on another career at that age, the attractive aspect of the pension is a key element, especially since this pension is linked to their very particular status which constitutes them as a power independent from by the Constitution.

Mr. Minister, it will be necessary to ensure that, by a very targeted and very appropriate consultation of this particular professional world, since it is a constitutional power, one takes into account, within the framework of execution orders, the specificities that make the whole quality of the profession of magistrates in our country. This, in order to avoid that, when a significant number of magistrates will retire within a few years, we are faced with a problem of filling the frame, i.e. a problem of vacancies that would not be filled by new candidates.

I hope that the minister will succeed in fulfilling the promise that many have already made for her, namely to break the vicious circle in which it is said that a workload measurement is needed to eliminate the judicial lag in the courts of appeal, but because there is no instrument, the judicial lag will continue to last. I would like to point out that the courts of appeal, especially in the French-speaking region, should work much better with the minister in order to ⁇ any result. For us, the size is full. We will ⁇ not approve the measure.

When it comes to detention, it is even worse if possible. This is the third postponement of the law before it comes into force. I recall that there are thousands of people in our prisons who do not belong there. That is scary. This is not appropriate for a civilized country. Here too, urgent action needs to be taken.

We cannot support the postponement on sexual abuse voted at the end of the previous parliamentary year. This is also a false start of the new government.

With the increase of opdeciems, we can live. However, the way it is implemented, without publishing figures, we do not find evidence of any respect for Parliament.

I stand behind the colleagues who say that there must be consultation on the pensions of the magistrates, as is the case in all sectors. At this point, too, there is zero on the record for this government. We vote against.

I have a few comments on this bill. First, with regard to additional tithes, the multiplier coefficient of criminal fines will be increased from 45 to 50. Certainly, this is a good measure, because I have always supported, like many of my colleagues, the necessary funding of Justice to make it effective. This may be a way to consider funding. It is estimated to be 24 million euros the amount potentially available. It is interesting!

Nevertheless, I think, Mrs. Minister – this may not fall within your competence, but within the competence of the Minister of Finance – that it is also necessary to work on the aspect of recovering these fines. Indeed, the general policy statement indicates this very precisely. But when we talk about the recovery of fines, I would like to draw your attention to the fact that, in the declaration of general policy, we talk about the effectiveness of the punishment. This applies to all penalties. One often thinks of the prison penalty, but the fine is a penalty and it must be effective; it must therefore be able to be perceived.

However, very often, these criminal fines are not covered and accessory penalties, such as subsidiary imprisonment, are also not executed. One creates a sense of impunity if a fine to which one is condemned is not recovered by the Treasury. Therefore, we will need to think about how to protect the interests of the Treasury in this capacity for recovery. Should wages or compensation still be protected in a case where there is a sentence to a criminal fine, like in the case of alimony? This is a path that will probably be worth considering.

My second observation is not about the reform of the pensions of magistrates, but about the inevitable consequences of this reform that we are going to vote on. I think, Mrs. Minister of Justice, that there will be reflections to be carried out, which you might not expect.

It has already been recalled that today the system of magistrates was constitutional. In terms of pensions, it is a special scheme and it remains, because the calculation in the tenth of the 48th ⁇ ins it, ⁇ not in the same way as today, but it remains a particular scheme. There will be questions about the attractiveness of the job of a judge. Will the consequences of this decrease in pensions not make positions even more difficult to provide than they are today?

The second question must be asked: how will we still be able to guarantee the breeding of magistrates, from their origin of the three paths of access to the magistrates today, of which the latter, the one reserved for people of a more advanced age, therefore having more experience and maturity? Will these people still be interested in the role of a judge?

Third question, arising from this change: Shouldn’t the access threshold for certain functions be revised? I think of the peace judges or the police judges. Today it takes 35 years. Is this still well justified in view of the tasks entrusted to these magistrates and in view of this modification of the pension scheme?

And finally the question, which is ⁇ the most fundamental: what we do in this case, does it not risk to train us towards a functionarization of the mission of the magistrates? This could hinder their necessary independence. At the same time, if well thought out and well thought out, this reform could also allow for a new status in which notions such as part-time, reduction of working time, career interruptions, various benefits that are related to this public function, in which these magistrates do not find themselves and do not wish to find themselves, until evidence of the contrary.

Consultation with them is essential.

As the agency Belga said and as you confirmed to me, you have suggested that you have begun this consultation and that, from it, there will necessarily be answers to the questions that will arise as a result of the modification of the pension scheme of these magistrates.

I would like to ask Mr. Brotcorne since I appreciated his speech in committee on this amendment.

Dear colleague, like the opposition colleagues, you were very surprised by the arrival of this amendment and you asked the same questions that I put on the carpet: what are the numbers behind this amendment? What are the consequences of this on the pension of the judge?

Will you vote on this amendment? Indeed, in the Justice Committee, we recently asked the Minister to provide explanations in order to be able to answer the questions, including those of the State Council. He said that he would be presented to the plenary session today.

Will you nevertheless support this amendment given also all the additional recommendations and questions from the trade unions of magistrates, the Professional Union of Magistrates and the Royal Union of Judges and Police?

Madame Boulet, you have no doubt that my answer will be yes. I voted in the committee, I will vote here. I did not say the opposite.

I said that the consequence of accepting this amendment raised a series of questions, which are those relevantly and legitimately raised by the representative organizations of magistrates. I also know that the Minister of Justice has already started this consultation and, from this consultation, positive things will come out.

I am supposed to be the last to intervene. And maybe I can end with a separate note.

We discussed here for fifteen hours, but there is a good chance that we did it for nothing. There is a good chance that the Constitutional Court, if it is caught by an appeal, will also annul this law. It is sufficient to read in this regard the opinion of the State Council, which stipulates that there is actually a special law on powers, but that the government refuses to call it so.

A special mandate law means that Parliament gives powers to the government and puts itself out of play. Parliamentary democracy is out of play. Everything is decided in the government. As you know, there is a Flemish majority in Parliament, but in the government the Flemish are in the minority. The State Council says in its opinion that this is a special law on powers, but the government leaves the opinion blatantly as it believes that the State Council knows nothing about it. Thus, the State Council, the supreme court, is ridiculed and depicted as prutsers who know nothing of it, who have not understood it, and who do not even know the difference between special laws of power and command laws. After all, according to the government, what is now proposed is not a special power law, but a contract law; that is its response to that advice.

I do not think that they are in the Council of State prutsers. I think they clearly see the difference between a special mandate law and a contract law. There has already been a lot of justice on this subject. In addition, the State Council itself points out in its opinion the difference between the two. On the basis of that comparison, the Council of State concludes that there is actually a special law on powers and not an ordinary law.

However, if the government considers that there are prutsers in the Council of State who are doing the wrong thing, then I have another prutser for you. In the book of Professor Johan Vande Lanotte you will find exactly the same arguments and exactly the same data. On the basis of the opinion of the Council of State and on the basis of the statement of Johan Vande Lanotte, you can only conclude that a special law on powers is on the table.

Why shouldn’t we call it a special law? Because the current government does not want to admit that it will rule with full powers and that Parliament and parliamentary democracy are out of play.

The current government is a week old and it is already drawing up powers. After a week, Prime Minister Di Rupo is already Emperor Di Rupo. The Emperor of the Emperor's Slave puts the Parliament aside. There is a Flemish majority in Parliament. In the government there is a Flemish minority. So Emperor Di Rupo prefers to regulate his affairs within the government with powers.

Based on our pleasant discussions over the past week, we have already concluded that the current government and the current majority have no respect for the Flammers. They have no respect for the Council of State, as is now shown. They also have no respect for Parliament. This is a good start!

Mr. Speaker, I will briefly repeat a number of matters, which I have already said in the committee, in response to the comments made today.

It has been requested to extend two legislative initiatives approved here.

In connection with the measurement of workload, we do not want to undermine the functioning of the courts and the parquet general, then it is no more than logical that you approve this legislation. In the committee, I have also recalled that the Monitoring Committee is always prepared to communicate the state of affairs to the colleagues in Parliament, so that they know exactly what work has already been done in the context of the workload measurements and, above all, what the timing of what remains to be done and what consequences should be drawn from it.

I agree that we should not only work on changing the tax rates, but also ensure that the percentage of individuals paying their fines is pushed up. I will also discuss this with my colleague, the Minister of Finance. This is a task for both of us.

Regarding the pensions of magistrates, I repeat what I said in the committee. If we want to carry out major reforms, if we want to prepare our pension system for the future, then everyone must contribute to that. All the statutes must be examined. Anyone who, by the way, has read the opinion of the State Council carefully, will notice that in the text he sees an approximation to the principle of equality, in which different statutes grow together. So it is going in the right direction.

This afternoon I consulted with L’Union Professionelle de la Magistrature, the Royal Association of Peace and Police Judges, the Association Syndicale des Magistrats, Magistrature and Society and the National Association of Magistrates. It was not just about the reform of their pension system, which is presented today for voting to their colleagues in Parliament.

We also talked about a way to strengthen the global status during the career, so that, even with the modernization of the pension system, the influx of magistrates, a legitimate concern of Mr. Brotcorne and other colleagues, is guaranteed in order to maintain a quality magistrateship.

Mrs. Minister, I thank you for your explanation.

You say that we can always ask the supervisory committee to come testify about the state of affairs of the workload measurement. My group has already requested the follow-up committee to schedule the explanatory note for several provisions before the draft law was examined.

Furthermore, I have not been answered to my question on the provisional measure. I understand that you have now requested an extension. However, I have asked you for the guarantee that you will not again request the extension of a temporary measure next year. I have asked that you come up with solutions, that you take care of the workload measurement and that you have a structural solution for the judicial lag by next year.

Finally, I note that you do not follow the advice of the State Council and that you do not assume responsibility for a changed situation.

Mrs Marghem, Mr. Schoofs and Mr. Brotcorne does not want to replicate.

Mr. Speaker, I am still impressed by the minister’s crushing response to my arguments, to the arguments of the State Council and to the arguments of colleague and professor Johan Vande Lanotte. You needed few words for that, namely, zero words. Can you confirm that this is actually a special authority law, or can you try to disprove it?

The [...]

No to? It is a special law of powers. The Council of State argues very thoroughly, like colleague Vande Lanotte, that this is not an ordinary mandate law, but a special mandate law.

The [...]

Therefore, I conclude that the State Council and Vande Lanotte are prutsers. For the latter, I am not guaranteed, but for the first, I can still say that I suspect that you are wrong.