Proposition 53K2790

Projet de loi modifiant les dispositions du Code judiciaire relatives à la discipline.

General information ¶

Submitted by

The Senate

Submission date

June 7, 2011

Official page

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Status

Adopted

Requirement

Simple

Subjects

judicial power disciplinary proceedings

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld MR

Abstained from voting

∉ N-VA LDD VB

Party dissidents ¶

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

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Discussion ¶

June 19, 2013 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, I will briefly report on the work on the draft law amending the provisions of the Judicial Code relating to discipline.

This bill has been prepared for a long time. The discipline was the subject of a letter, which I myself as a former Minister of Justice addressed to Parliament. Collega Delpérée has taken over the theme in his proposal in the Senate. It has now become a draft, and supplemented by the current Minister of Justice.

The disciplinary procedure has been encrypted more than once in the last decades. Not so long ago the National Disciplinary Council was established, but problems continued to emerge. Following various dossiers, it has been shown that within the magistracy and within the entire Judiciary apparatus the discipline is not applied accurately. There have been several speaking files on this subject.

According to the information of the Minister, only thirty disciplinary dossiers have been handled in recent years. This proves that the discipline is rarely applied in recent times.

Several problems came up regularly. There is, for example, the responsibility of the corps commander, who is apparently too close to his corps and dares to intervene too strictly. This problem of proximity was raised by the High Council for Justice, and the Fortis Commission has also discussed it. Therefore, an initiative in this regard was necessary. This was discussed at the Atomium talks at the time. There was a beginning of consensus.

Let me summarize some fundamental points of the new disciplinary law.

First, there is a simplification and greater transparency of the procedure. Especially important is the treatment by an independent and impartial disciplinary body that guarantees a sufficient distance from the magistrates concerned. Investigative magistrates will be involved, who will prepare the case for the sitting magistrates.

Second, there is the handling of the file within a reasonable time, and the introduction of new specific disciplinary measures in order to act more efficiently.

There are two disciplinary courts installed throughout the country: a Dutch-speaking court in Gent and a French-speaking court in Namur.

There is also a court of appeal appointed in Brussels. These courts are composed of two magistrates and a member of the judiciary of the same professional category as the person concerned. In addition, there is also a member of the lawyer’s office with an advisory voice, to which I will come back a little later.

The procedure and the deadlines for the handling of the disciplinary complaints are precisely defined. It is also important to note that it is expressly provided for the possibility of appealing against a covered disciplinary sentence, a transfer, for example, which in certain circumstances could actually be considered a kind of sanction. If a covered measure is negatively felt, then one can go to the disciplinary court to react against it. This is possible if, for example, an abuse is made by a corps chief.

Several elements were discussed in the committee. It was, first, about the composition of the disciplinary court, in particular the question of whether external persons with voting rights can also sit in the disciplinary court. Many have wanted outsiders to sit, but there is a constitutional problem with it, which has been discussed extensively.

The second was about the role of the Supreme Council for Justice. We have made it clear that no more powers will be conferred on the Council because it has a general supervisory power.

There was also a discussion about the Minister’s injunctive right. The text explicitly states that the right of injunction for order measures exists and that, for the rest, the general principles are preserved, so that the Minister may apply it or not at his own discretion.

There was also a question of the extinction period. In this regard, an amendment was made at the request of several parties to maintain the automatic eradication, but to extend the deadline. There are now longer deadlines in the text.

The [...]

There is discipline in the sp.a. faction; that is clear.

I will continue with my speech. It also talked about the independence of the members sitting in the disciplinary court, by ensuring that people from the same jurisdiction are not elected.

Several technical amendments were submitted by N-VA, Ecolo-Groen and Open Vld. I don’t think I need to deal with them all in detail. Maybe my colleagues will come back later.

The majority and Ecolo-Groen voted for, the N-VA and Vlaams Belang abstained. I would like to make a summary of this important project.

Allow me to say very briefly also on behalf of the CD&V group that we are very positive about this bill. We are very pleased that the discipline was once again placed at the center. In fact, taking discipline seriously is also an essential part of the global discussion on justice reform. If we want a performance justice, discipline must also be applied. I think this is a crucial component.

Tucht is a necessary matter and attitude, in addition to deontology, within the corps, so that one can remain performant. I think that a call should be formulated to apply this as efficiently and as often as possible. The disciplinary court, which now has more efficient procedures, needs to be used more.

I think this new court is very useful. It is a new authority. In the past, the criminal enforcement court was implemented. Now there is a disciplinary court. These are new elements within the framework of the entire architecture of Justice. I think this is an important point.

Once this court has been created, one will hopefully consider in the future, from the free professions and ⁇ from the legal professions, to resort more to this type of courts in order thus to address one’s own internal deontology, rather than to limit it to one’s own corps. I think that a specialized, but always differently composed court can also be ⁇ useful for other professional categories than the magistrates and for the staff.

The disciplinary court is a very positive step as a new part of our legal structure. Hopefully this element can be integrated into the global reform that we launched this week and which hopefully can also be completed soon. I think this is a positive step in a long story.

With regard to this issue, the N-VA would like to emphasise that it is indeed of great importance that a disciplinary court be established for the magistrature. We have long been asking for a full and efficient disciplinary procedure for the judiciary. Hopefully, we can finally get rid of the stories that magistrates and judicial staff who are not functioning altogether or are very behind, can still just stay sitting on their seats and can be left behind the us-know-unprincipe within the judiciary.

We are therefore pleased that our colleagues in the Senate have submitted a bill for this and put it very high on the agenda. It shows the importance of a parliamentary function, which should not always be dictated by the government. Nevertheless, we see that this Senate proposal has been weakened in some respects.

Nevertheless, N-VA considers the establishment of this disciplinary court a missed opportunity. We are primarily talking about the lack of full-fledged lay judges, something we were very supportive of. We were in favor that full-fledged lay judges be included in the disciplinary court.

In cases involving ordinary citizens – I think of the labour courts, the trade courts with the judges in commercial matters, and the enforcement courts – it is possible to involve lay judges. For the judges and the discipline in that regard, the majority obviously does not want this. Nevertheless, the presence of lay judges in this area would further avoid any appearance of corporatism, which could only benefit the confidence in the judiciary.

One tries to link a bit of a comfort price to it: one says that a staff holder’s advice can be added. Dear colleagues, however, we see such an advice from the staff holder as an empty box, as an illusory manoeuvre. A full solution would be to actually add lay judges, and that is ⁇ not the case here. The advice of an employee has no legal value and is simply non-binding. The High Council of Justice and the Council of Europe are also in favor of adding lay judges in this area. However, our amendments were rejected by the majority of the parties, and we consider that a missed opportunity.

The majority, therefore, does not want lay judges, but instead of simply confessing that they do not want to, or confessing that the majority parties do not agree on this, as is the case in various other matters, which we may have already experienced here in the last hour, one does not want to confess that one does not agree. They are simply hiding behind Article 157 of the Constitution.

Article 157 of the Constitution contains certain provisions concerning the exceptional courts and their staff. It is said that this article must be amended and that as long as it is not amended, we cannot add lay judges.

However, one forgets to say that Article 157 of the Constitution was declared subject to revision and that in the Senate Committee for Institutional Affairs a proposal to amend Article 157 was prepared, but that it was put to a quiet death by all kinds of manoeuvres. This shows that there is no consensus between the government parties.

Thus, we can only conclude that this government does not want lay judges in the disciplinary courts for magistrates, in order to avoid any appearance of corporatism. We feel sorry for that.

Also in terms of eradication, the design is very minimal. Mr. Van Hecke may have further discussed this issue, but we can agree.

For all these reasons, the N-VA will therefore abstain from voting, as a full-fledged lay judge is essential to restore trust in the judiciary in this area.

The issue of justice for judges and judicial staff is on our agenda today. It has not only been on the parliamentary agenda very often in the past; it has undoubtedly also been the subject of social debate very often. Unfortunately, this was always due to a number of scandals to which Justice apparently could not provide a proper solution.

In the past, the legislature has repeatedly attempted and strived for an efficient, fast and adapted disciplinary system. It was intended to restore citizens’ trust in the judiciary as an institution, without prejudice to the independence of the judiciary in the exercise of its judicial powers.

The current system remains extremely complex despite a number of legislative changes in 1999 and 2002. It seems incomplete. It should also be repeatedly observed that difficulties continue to arise in the interpretation of the regulation or in its application.

Mrs. Minister, today is finally one of the building blocks of the reform of the judicial organization and of the judicial landscape, which is indeed the disciplinary reform. We are discussing the reform today. Hopefully we will finally be able to adopt the regulations on this subject tomorrow. I would like to congratulate you on the consensus reached.

On some points there has been a longer discussion than on others. Ultimately, however, we have come to a regulation, of which Mr. De Clerck, who knows the regulation very well, has just set out the guidelines.

Colleagues, the establishment of disciplinary courts has undoubtedly the beneficial effect that from now on an independent body will be able to assess possible professional errors after thorough examination. It will be able to impose an appropriate disciplinary sanction if necessary.

It is undoubtedly an added value for my party and for my group that an external advisory voice has been added to the college.

Mr. Degroote, that is an additional guarantee for independence and transparency in this area. I would like to hear you declaring that there have been manoeuvres and that there would have been no consensus, because no external members are full members of the discipline college.

We have always advocated for external members. We are still advocates. However, if there is a constitutional restriction, its introduction is not a manoeuvre, but it means respect for the Constitution. We should all respect the Constitution, especially here in the legislative hemisphere. (Protest by Mr Degroote)

Mr. Degroote, has the Constitution been changed today or not? Do we need an independent disciplinary body or do you want to delay its establishment?

We advocate the establishment of an independent, impartial disciplinary body, not tomorrow, rather today, after the approval of this bill, and the majority has reached consensus on this matter.

Finally, I would like to emphasize that the general injunctive right of the Minister was not affected. The right of injunction was extended to include as many order measures as necessary. This is an additional added value in order to provide more opportunities for the optimal functioning of Justice.

Teaching is not a policy instrument. At the same time, we need an impartial, independent disciplinary body, which can now be installed. Magistrates are independent in their judicial practice, but they are not inviolable.

Article 157 has not been amended. However, within the framework of the state reform, it was indeed intended to amend all the articles that had been declared subject to revision during 2013. This was already discussed in the Committee on Institutional Affairs. If it had been done, that part could have been embedded in it. The majority, however, delayed it due to internal divisions; otherwise such a text could have been fully approved within a few months and lay judges could also have seats in the disciplinary court. So you have done an exhibition manoeuvre, only to mask the contradictions.

Of course, we continue to support the establishment of a disciplinary body, but it is unfortunate that you did not amend Article 157, although it was possible. It is still possible, within three months. Obviously you do not agree.

Collega Degroote, what we absolutely don’t want to do is chicken capture of the Constitution. If one works on the Constitution, it is logical that one does it in an integral way and that one does not quickly draw out something here and there on the basis of some file that is presented for discussion. The Constitution is a balanced whole. Several articles were declared subject to revision. Once Article 157 of the Constitution has been amended, we will in any case remain advocates for the addition of externals to the disciplinary court.

All this could be changed this year. Why not wait three months? Everything can be arranged at once. Well, then there will be new proposals after 2014, then we still have a little work to do.

We wait until after 2014.

Mr. Speaker, Mrs. Minister, colleagues, it is important that this text is published today so that we can vote on the establishment of a disciplinary court. This is a big, I think important step to increase the faith in Justice and the self-cleaning character of Justice. After all, if we look at the figures or surveys conducted on them, then we find that the citizen’s faith in Justice is not too big. That is also logical, when one sees what decisions are sometimes made, incomprehensible to the man on the street. We have known the example of the slow judge, among many others. At the end of the ride, it turns out that there is no action. These are magistrates who do not or do not function properly, but who are not addressed and still remain sitting. This is, of course, a problem, both for the prosecutor who is faced with it and for the colleagues of that non-functioning magistrate. You will only be part of a court where one or more magistrates do not actually function as it should. Those colleagues will have extra work, and that is not correct.

If we approve this bill, then the question also arises whether it will be an improvement. Will it be able to increase credibility? Will the disciplinary court also be able to increase the self-cleaning character of Justice? I think the answer is partly yes, but also partly no. After all, there are still some shortcomings in that law, things that could have been otherwise. We have listed three important things.

First, such a system must radiate credibility. An important point of attention here is, for example, who can initiate the discipline procedure. This is now kept quite limited: it can be done by the chief of the corps and by the prosecutor’s office. We naturally agree that not every citizen of the country should have the opportunity to initiate a disciplinary procedure. However, we are in favour of going a little wider in this area, for example by granting that possibility to each magistrates or to the staff holder of a bar. We are, in fact, convinced that those persons will not accidentally initiate a disciplinary procedure, but only after weighing all interests. However, the amendments in that sense were not accepted and we regret that. We hope that the Corps Chiefs and the Prosecutor’s Office will take their responsibilities and properly apply the law. This is a first defect that should be pointed out.

Second, the transparency of the procedure. It is important that the procedure is transparent and that everyone can follow it, including the citizens of this country. An important element of this is the publicity of the sessions. In principle, it is provided, but can be deviated from it. I hope that publicity will remain the rule and that the closure of treatment will be an absolute exception. The application will have to show it out, but it is very important that there is maximum transparency.

This also applies to decisions. In the committee we discussed this: what if a citizen makes a complaint to the chief of the corps and finds it serious enough to initiate a procedure? It was quite unclear whether the complainant would become aware of the final decision of the disciplinary court at the end of the ride. The amendment is made clear in the text itself. This great improvement is the result of the parliamentary debate.

In terms of transparency, there is another third element: what are the consequences of a decision of a disciplinary court if it imposes a disciplinary penalty? Does this mean for the future career? You can answer yes and no. Is the Supreme Council, which is responsible for appointments and advancements, aware of outlined disciplinary sanctions? Yes and No. Yes in the beginning: the first three years for light sentences and the first six years for heavy sentences, but then no more, or one should appeal to the collective memory of all who are still walking around at the Supreme Council or the courts of this country.

This is about the rules for extinction. We think it happens too quickly. Initially, it was a maximum of three years for all penalties in which it was provided, but after amendment it has become three years for light penalties and six years for heavy penalties. Today, this possibility does not provide for severe penalties. In this regard, the law takes a step backwards. That is regrettable. This is the second defect we would like to point out.

Another important element is the composition of the disciplinary courts. The discussion about the presence or non-presence of external persons in a disciplinary court has already been conducted in part. We are in favor of allowing outsiders, to also signal that it is not only magistrates who judge about magistrates, but also people who are strange to the magistrates and who can make a decision in honour and conscience.

Unfortunately, the amendments submitted were not approved. The majority is hiding behind the Constitution. Article 157 does not allow this today, although Mr. Landuyt says it could, without changing the Constitution. For Mr. Landuyt, unfortunately not present here, much is possible. He always has creative solutions, but whether this can be legally done is another matter.

In any case, we, in the House and in the Senate, have the possibility to amend Article 157 of the Constitution. However, we can only conclude that this majority does not want to amend that article. Many majority parties say they also want outsiders. That sounds nice, but if the point comes to the pile, then you don’t want it.

Article 157 is subject to revision. Mrs. Van Cauter can say that one cannot make a chicken cap. This is not a chicken cap. If an article has been declared subject to revision, it has been done with a certain intention. If one declared Article 157 subject to revision, it was for the purpose of allowing externals in the disciplinary courts. For that purpose, that article has been declared subject to revision.

If in the legislative process one comes to the formulation of legislation by which external persons should be able to join a disciplinary court, then it is logical that one makes this operation possible in two moves, by amending the Constitution and in second order by formulating the law so that external persons can be admitted. However, here they have sought excuses for not having to make that decision.

I can only conclude that one is legally able to allow outsiders, but that the majority did not want to. This is a third deficiency. It is very regrettable. I fear that this has pushed the amendment of the constitutional article on the long track and that it will not be possible in this legislature, nor in the next, because there is simply no consensus in this majority to allow external ones. That is the essence of the problem. There is controversy in the majority on this point. Just admit it. Say that simply, instead of hiding behind a so-called unadapted constitutional article.

Mr. Van Hecke, I have a small information question for you. We are completely on the same wavelength in terms of the theory on Article 157 of the Constitution, but I wonder if the adjustment of Article 157 is in the package that the eight parties you are with are negotiating. Or is this adjustment out of place? That escapes me.

Unfortunately, it is outside. It is not in the agreement.

So you do not have much to say. I thank you for this information.

Mr. Speaker, Mrs. Minister, colleagues, this bill has produced a lot of substance for discussion and has also led to a lot of discussion in the committee, also within the majority.

A number of topics have been addressed, and especially sensitive questions, such as the transfer as a disciplinary punishment. Pension loss, is it a penalty? Negative evaluations that can lead to deposition: should there be two or three? Positive injunction of the Minister. External in the disciplinary organs or not? The deadline for the abolition of penalties. Who will be judge or counselor? Who can start the investigation? What about the higher profession? Where should the disciplinary courts be located? In Flanders it is in Gent, about which the minister has given few statements.

Often during the discussion I had the impression that there was a revolution in the judicial apparatus, in all a profound evolution. When you look at the final text, the question arises: is it this? Is it just this?

I am not going to comment on the desirability and fate of everything I have just listed, but in any case we must ask ourselves whether this law will ultimately lead to a mentality change in Justice.

The opposition colleagues then spoke about transparency and publicity. This is very important. I also ask questions. I don’t know if the credibility of justice under this law will suffer. In any case, it is not certain that this mental change will come.

Will the judiciary world really use and want to use this law? Is she serious enough for that? I am afraid to be honest. At that point, she is conservative.

Some themselves say that it is rather a relief than a tightening of the disciplinary law, that magistrates will be able to escape even more from the fact that they make mistakes, that they sometimes very consciously go wrong. I do not know if it will come so far. This should be assessed in the field.

For us, the real engine is lacking to trigger a change in this bill. That is why we have our doubts.

Wouldn’t it have been better to allow outsiders? That is the question with which I still sit. Wouldn’t it have been better to give the Supreme Council for Justice some competence as a disciplinary body?

Of course, that institution was really concerned. I am ⁇ not the advocate of the High Court of Justice, but the complaint system that is being developed there could be in line with the disciplinary law of the High Court. In that regard, this bill is indeed a missed opportunity, as colleague Degroote has already explained.

I remain cautious. We do not have the wisdom. This draft law ⁇ has its merits, but for the time being we make reservations on the operation on the ground and the initiation of a change of mindset. The Flemish Interest will therefore abstain.

I have already said in the committee that the establishment of the disciplinary courts for magistrates is a historic moment. We have been talking about it for years, maybe decades. The establishment of the disciplinary courts was part of the discussions currently being held in the committee on one of the most profound reforms of the judiciary since 1830, including the adaptation of the Cassation. In the near future, the House will also discuss the creation of the family courts, which have recently been discussed in the Senate. I am convinced that the present Bill, which comes from the Senate, will truly contribute to the major reform of the judiciary.

It is important that manifest and unacceptable mistakes by magistrates are now seriously investigated, assessed and, where necessary, punished. The existing disciplinary procedure has been applied too limited. This is evident from the figures, and this is unacceptable, because if trust in the judiciary has declined in recent years, it is precisely because there are insufficient, too slow and inadequate responses when there are misversations.

I was ⁇ delighted that the senators submitted the bill that we had drafted, with a broad consensus, to consider discipline as an important matter in the context of the judicial landscape reform and the reorganization of Justice.

Different instances were consulted during the preparation of the text: the Supreme Council of Justice, the College of Prosecutors General, the bar orders, etc. But, as with the judicial reform, it is necessary at some point to close the discussion and settle.

That is what we do here today.

Of course, we talked about involvement. How can external parties be involved in these disciplinary courts? As we resolve it here today, as it is proposed today, we are in line with the legislation and, as some colleagues have shown during this debate, we do not shift the debates for us, while we just have to tranch them.

Whoever thinks that one simply modifies an article of the Constitution and then can wait for disciplinary courts to be established, knows that there will be no disciplinary courts by the end of the legislature. That would be unacceptable. This is precisely a tool to ensure that Justice can be organized more efficiently.

We have also long debated the publicity of the procedures that is the norm, but with exceptions.

We have also debated about the injunctive right, where I always say that an injunctive right is there primarily to use it as little as possible as a minister. Furthermore, I must reiterate that an injunction right exists in order to be able to re-open a case and not to forward a decision in a different direction in advance.

In my view, the main responsibility for the establishment of disciplinary courts lies with the magistrature. I am convinced that the confidence and freedom that we give them today will also give responsibility.

A minister should use his right of injunction only when the need is high, but I assume that the judiciary will benefit from the law that we vote here today, the creation that we discuss today and hopefully approve tomorrow.

In this way, we give responsibility to those who need to get them, namely the magistrates themselves. We also give them a legal tool to take that responsibility.

I fully support this bill. I think that the Senate has done a good job and that the House Committee has made good adjustments, but I am especially pleased with this important step forward that we will take during this legislature in relation to the reform of the judiciary.

Mrs. Minister, you say to those who think that Article 157 of the Constitution can simply be amended, that there will be no disciplinary court by the end of the legislature. Should I decide that there will be no constitutional revision before the end of the legislature? I thought the plans were different. That is just a determination. You do not even have to answer them.

I still have the impression that under the former Minister of Justice the idea of lay judges was more accepted and that he would have pressed that aspect there, which is not the case now. I can only see that.

Mr. Speaker, it is of course always nice when colleagues give an interpretation of the words that have been said, especially if the words are not correct, of course, because then they should not be distorted. I wanted to say with my argument that one must already do, what one can do. If you need to make an adjustment later, you have to do it. However, let this not prevent that first important step being taken. In this case, it is the establishment of the disciplinary courts. Sometimes you need to be able to focus.

Mrs. Minister, please tell me why the discussion in the Senate on the amendment to Article 157, which was on the agenda, has been interrupted? That discussion had already begun before your texts were in the Chamber.

Again, that does not prevent one from taking today the step that can already be taken. I understand that the opposition likes to make links, because that is often an elegant way to prevent good projects from continuing. Today we are setting up disciplinary courts. The discussion of Article 157 can continue. After that, we can still go further.

Do you still believe that yourself?