Proposition 54K2221

Projet de loi modifiant le Code d'instruction criminelle, le Code judiciaire et la loi du 10 avril 2014 modifiant diverses dispositions en vue d'établir un registre national des experts judiciaires et établissant un registre national des traducteurs, interprètes et traducteurs-interprètes jurés.

General information ¶

Submitted by

MR Swedish coalition

Submission date

Dec. 14, 2016

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

professional ethics database expert's report ordered by a court qualitative analysis quality standard translation

Voting ¶

Voted to adopt

CD&V Open Vld N-VA LDD MR VB

Abstained from voting

Groen Vooruit Ecolo LE PS | SP ∉ PVDA | PTB PP

Party dissidents ¶

• Olivier Maingain (MR) abstained from voting.

Contact form ¶

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Discussion ¶

March 30, 2017 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, I would like to point out, first, that the present bill is a modification of the law of 10 April 2014 on a register of judicial experts and translators and interpreters. The aim was primarily to improve the quality of the work of both experts and translators-interpreters, both in the recruitment and in the exercise of the function through control. Therefore, an acceptance committee was included in the draft and that deontology and training as criteria have been heavily pushed forward. In addition, anomalies were corrected and a provisional register was introduced.

The text was discussed in first reading on 31 January and 22 February 2017, followed, as is now customary in the committee, by a second reading, which has its value. I would like to thank the services for the legislative technical note. Such notes are indeed always very instructive for us and usually give rise to a number of changes. This has happened again and on 14 March 2017 amendments were made in second reading.

The discussion took place with the active participation of members of all political groups, in particular Mrs. Özen, whom I now do not see sitting, Mrs. Van Vaerenbergh, Mr. Brotcorne, Mrs. Lambrecht, Mrs. Van Cauter and myself. She spoke about the same themes, namely: quality, acceptance committee, the royal decrees and the amounts that will be requested. The discussion was animated, but above all involved, for which I thank everyone.

If you allow me to do so, I will now express a few concerns on behalf of my group.

That is good.

Mr. Minister, the former Minister of Justice has long waited with the publication of the original bill, which has become law. You did not do that, you immediately arranged for the publication. You have even taken the leap forward by announcing that you will already start with a provisional register, in order to register the experts and the translators/interpreters with a view to good quality and, what we all consider important, with a view to neutrality and independence, criteria to which both experts and translators-interpreters must meet.

I would like to emphasize that the register will also have to be a very evolutionary tool, which will be constantly updated and in which the famous acceptance committee will play an important role. We are all especially looking forward to the concrete implementation decisions and I suspect that colleagues will surely come back to them.

You acknowledged during the discussion that the register may not be completely perfect, but that we will take steps forward in any case. We are also convinced of this.

I have one more point, Mr. Minister. There is some concern in the sector about the contribution for registration. It is feared that this will create another threshold for registration. We hope that, if such a contribution is requested, which is not too high and can be compensated by direct and quick payment of the experts and the translators-interpreters. They may also have fewer problems with it.

Mr. Speaker, Mr. Minister, colleagues, we have abstained in the committee on this bill and will continue to do so today.

Undoubtedly, the design contains some positive points. First and foremost, we note that the design is clearly committed to the maximum quality of the judicial experts and the translators and interpreters through a number of quality conditions, quality control and continuous training. There is, of course, a price in front of it, Mr. Minister. A correct and timely payment is really necessary – my predecessor already said it – if we want to have quality experts, translators and interpreters appear in court proceedings. Allow me, Mr. Minister, to point out that there have been many problems in the past in terms of the speed with which it was paid. We hope that these problems will disappear in the future.

Secondly, when I make a cross-section of the written opinions submitted and of the discussions in the Committee on Justice, the need for the independence of the experts is always – how can it be otherwise – highlighted. The draft hopes to guarantee that by a deontological code to be drawn up by the King. That code shall contain at least the principles of independence and impartiality.

Third, there is also a reference to the recently amended Article 972 of the Judicial Code, according to which an incompatibility or lack of independence on the part of an expert must be ⁇ by that person himself, so that the court may appoint another expert in that case. He does not need to appoint them, and we regret that.

Allow me, Mr. Minister and dear colleagues, to express some restraint regarding the feasibility of the provision and the associated deontological code. The question is – this has been extensively debated in the committee – whether that method will effectively put an end to the problems with regard to the independence of the experts of insurance companies in the assessment of bodily injury, problems that are pointed out to us from different angles. In our view, there is and remains a risk of confusion of interests when a judicial expert can also represent an insurance company. We are not convinced that what precedes now, that resolves.

Fourth, I would also like to advocate that the costs would not increase, Mr. Minister. The previous speaker also expressed that concern. We must ensure that justice remains accessible and affordable, including for those indirectly involved. Justice shouldn’t cost more and more.

We will keep your promise, Mr. Minister, to provide us with a good evaluation of what is ahead in one to two years. We hope that then we will have more security than we do now.

Mr. Speaker, colleagues, as the reporter already said, we discussed this draft very thoroughly in the committee and as usual in our committee, also in second reading. Another habit is that we listen to expertises and advice. We also received a number of 35 opinions from various angles, which were very interesting in the discussion.

I am not going to repeat everything that was said in the committee. You can read this in the report. I would like to start with a testimony from a victim. Why is so much attention paid to this law? Why does this affect some people? A lot of people have had a bad experience after becoming the victim of an accident, a work accident, a traffic accident, or whatever. They have the impression that they were treated unfairly when an expert was appointed. They have the impression that the budget of the damage, the scaling of their disability is on the low side.

A few years ago, there was some commotion about this following a broadcast of Panorama, with shocking examples. One of those examples was Agnes, a widow, mother of a son, who worked as a receptionist in various hotels for 20 years. Five years ago, on the way home, the bus was struck by a passenger car. She fell on a steel pillar in the bus, thundered on the ground, felt someone hit her. She was taken to the emergency. There, her elbow was broken but also her key leg and hip was wrong. Some spinal vertebrae were severely damaged, some crashed. She had to undergo three interventions. Working was no longer possible. Because certain nerves were cut, she also had paralysis symptoms in her arms and legs and can no longer write decently.

Her employer had the same insurance company, because it was, of course, a work accident, like De Lijn. The insurance doctor proposed to grant 0% permanent disability. The court expert came at 5%. He still cannot work today. She says that it is almost always the same doctors who laugh at medical problems, and then write a report in favor of the insurance companies. That impression lives on people who have been victims of an accident with permanent injuries: they feel that their file is not being handled properly. They have another twenty or thirty years in their lives, but they can’t actually work anymore. They have not been properly compensated for this.

That is the challenge of this law. We had the law of 2014. Changes were made by the potpourri IV and also now. These are steps forward, but I think, as I said in the committee, we will have to take further steps forward.

Several problems still exist. This is called the five-year transitional period during which the experts currently on the lists can still work. It is not always clear for which parties the experts have worked or have not worked. We have pledged to increase the transparency in this regard by also indicating in the register for which insurance company the expert works or has worked. We have discussed this for a long time. We submitted amendments in this regard, but the majority did not follow us in that, and we regret that. However, we believe that this is a necessary step toward a much better transparency. We must be guaranteed that the appointed experts can work in all objectivity and neutrality.

Many matters must also be settled in a royal decree. We have received a lot of advice and numerous useful suggestions to make the system even better. I hope that many of those advice will be followed when writing those royal decrees and ⁇ also when writing the deontological code. That deontological code will be established by royal decree, but at the moment we have no vision for it.

Then there is the important role of the Admissions Committee. The Admissions Committee plays an important role in whether or not to accept an expert so that he is included in the list or in the register. In addition, the Admissions Committee also has a task if there are complaints, for example by formulating a proposal for deletion or suspension, so that experts who do not comply with the Code of Ethics and who do not work properly can be removed from the register.

I have already called in the committee that it is absolutely of great importance that the admission committee can function properly and will be adequately equipped. Anyone who submits a complaint should also feel that his or her complaint is being taken seriously. People must feel that they can go to the acceptance committee, that their complaint is examined with word and word. That counterword is not yet completely there. We also discussed this. There is no opportunity for the complainant to respond. You refer to somewhat the – not existing – Greek calendar.

You say that everything that has to do with deontology and discipline procedures must be revised. The complainant does not play an active role in this, nor is he actively informed. We could have arranged it already. Per ⁇ we could have inspired ourselves for other texts on discipline. Of course, we could have done that too. Now we have to wait for that big text to come.

The acceptance committee plays an essential role. We also talked about the composition. We must be careful that there are not too many experts in it because it gives the impression that the experts know each other and must judge about the functioning of other experts, whether that will go and whether they do not know and cover each other too well. As a counter-amendment to an amendment I submitted myself, you have suggested that the law clearly stipulates that experts should never be in the majority in that acceptance committee.

That’s a lot of elements that can make it a success, but there are also a lot of questions that can make it not.

Mr. Minister, I hope that we will do our best, you from the government and we from the Parliament, to take further steps and make it a success story and to avoid people like Agnes and many others who feel that they have been treated unfairly have to live with it and have no way to go with their complaint. That is the feeling that lives.

Finally, a comment I made about that fee, a comment in which the colleagues are now joining, which delights me. You have even said more than 10 times that it will not be more than 100 euros.

I made you a proposal, but unfortunately you did not accept it. If we can ensure that all the bills of experts and translators-interpreters are paid within two to three months at the latest, then I think they will all be willing to pay a little less than 100 euros. However, if they themselves have to wait months or years for the payment of the bills for the services they have provided in the public interest, to assist the judges and help in the search of justice and the finding of the truth, they will not be willing to do so. We must respect them and ensure that they are paid properly and correctly, but also timely. As long as this is not the case, it is a little less than 100 euros very acid.

I regret that these amendments were not accepted. Mrs. Becq, you could have supported them. You did not, but I apparently managed to convince you.

The [...]

You should not listen too much to your minister. Sometimes you have to take initiatives yourself and not let your minister take you on a sleeve. Who knows, he’ll listen to you more than me, so maybe we missed a chance.

In any case, I hope that you will take this commitment. It is very important for the experts that they are treated and paid correctly. We need them. We especially need good experts in the field. We must avoid that the good experts drop off and that only those who have no job and only do expertises because they are no longer in the box will still work for Justice. We need good experts, in the interests of justice.

These were the most important comments I would like to make.

Our general opinion is that it is a step forward, but we are not there yet. Therefore, we will abstain, as in the committee. However, we will continue to follow the dossier very closely. It is ⁇ and ⁇ also of great importance that we regularly review the law, the KBs, the implementing decisions, the deontological code and the like, because we will have to take further steps in the coming years.

Mr. Minister, the organization of a national register of experts, interpreters, translators and translators-interpreters is a quite interesting step forward. Those who have had the opportunity to attend court palaces have realized that in too many occasions, when it comes to appointing an expert, the magistrate uses his personal knowledge of particular situations, or even the habits of a court, but this sometimes misses the opportunity to appoint the right person for the right subject to be dealt with. In this, centralizing the inscriptions is an interesting operation.

Unfortunately, Mr. Minister, the hearings to which our committee has resorted have shown that we may have missed a slightly more ambitious goal. I heard Mrs. Becq say that this was a first step and that things should probably be refined. I hear Mr. Van Hecke talk about a long-term assessment of the law.

I would like to draw your attention on three issues. The latter will ensure that, even if the intention of leaving was praised, the CDH group will abstain at the time of the vote.

The first element is that we take into account important, and sometimes even very sharp, training that experts are called to follow. When I speak of experts, I mean all the categories covered by the text that is being reviewed this afternoon. But to want to be too pointed and too demanding in terms of degrees, one forgets somewhat that experience is sometimes acquired also in the field and that these acquired experiences are sometimes as evidence, if not more, than diplomas or recognized training. In the proposed text, this element is not sufficiently taken into account.

My second observation concerns potential conflicts of interest, or even the urgent and indispensable need to guarantee impartiality. Even in court, Mr. Minister, you know well that the appearance of impartiality matters. I think we have failed, in commission, despite the heated debate, to force the experts who register to indicate the insurance companies for which they work. It is logical that the magistrate who designates them and the parties who will be subject to their expertise can know everything about the CV and the organizations for which the designated experts work.

This is not only to prevent a designated expert from working for an insurance company that may be affected by a litigation in question. This can go further. For example, for a file relating to the assessment of personal injury from permanent disability following a work accident or traffic accident, an expert may be appointed who is not the one of the insurance companies involved, but it will not be less that the appointed expert will be used to working with the insurance companies. However, we may need experts who are not linked to any insurance company to innovatively assess situations and change jurisprudence. Unfortunately, this is not guaranteed in your text.

Finally, this text contains many references to a royal decree. We are therefore not fully aware of the parameters and modalities for the concrete application of this text, in particular with regard to the composition and functioning of the approval committees. It is nothing! We do not have any information on this subject. We are also informed that the codes of ethics will be drafted, but we do not know anything about their content.

Regardless of the cost claimed for the registration in the register of experts, here are three elements, Mr. Minister, for which there are still shadow zones. If we appreciate your willingness to create this register of experts, we will therefore not be able to go so far as to vote in favor of this text.

Mr. Speaker, Mr. Minister, my dear colleagues, we know – at least those who attend courts and courts, the praetoriums – that the relations between experts and the world of justice, between experts and those who must be in court, are sometimes ⁇ delicate and difficult.

Experts ask to register on the list of experts at courts and courts. They are designated by the courts of first instance, trade or labour and, as they do not earn enough money, it is quite logical for some that they continue to work for insurance companies, the most common case, or for public or parapublic bodies, such as INAMI or mutualities.

This simply creates a problem of independence. The complaints that rise from the actors of justice (magistrates, lawyers) but especially from people who have to go into the hands of experts, are about the independence that can exist at the level of experts and, in addition, on the exorbitant moment cost that an expertise can represent. Especially because if you are not quite a specialist and when it comes to a problem of merule in a building or problems of accidents that lead to consequences on the physical plane, you also like to be surrounded by your own expert. Why Why ? This is because the independence of the expert is frequently questioned.

He is a fundamental player in justice. He is an independent actor in the judiciary. Of course, as much is assembled to the magistrate, impartiality must, therefore, prevail. It could have been said, Mr. Minister, that on the occasion of the transposition of this directive, we would try to solve as many problems as possible, that we would therefore go towards a professional system, a kind of certification of experts. Unfortunately, I feel like this is a missed opportunity. I do not doubt, however, for a single second that you have tried to do well and that you have wanted to move forward – I admit it – in certain matters.

I remember for having frequented some of the banks of this parliament between 2003 and 2007, which was already mentioned at the time of expert certification. Between 2003 and 2007, the Minister of Justice was not the same but your opposite. She was Mrs. Onkelinx. At the time, I had submitted a bill on the subject and a work had begun. Per ⁇ one could have, by doing some excavations and going to see in the parliamentary archives, tried to find some documents that had already been produced at the time, as well as many opinions from the different bodies gathering the experts and which practically all asked for a certification system to be put in place.

It is true that, as part of the discussion of this project, we have received many opinions, sometimes ⁇ quite late. I would like to remind, however, that ABEX, which is still the Belgian Association of Experts, only confirms what it had already said between 2003 and 2007, namely that it wants to have lists of experts, but that take back those that are certified by professional associations of experts recognized by the King. Why Why ?

Because the certification provides a quality guarantee at the level of the titles and merits required as well as at the level of the training established.

I think you wanted to bring a control over the quality of experts and interpreters, a better prevention of conflicts of interest. Unfortunately, we believe that this goal is not fully achieved, as the actual procedures for controlling these risks have not been established.

No one can ignore the issues concerning the independence of experts. I recently talked about health care control bodies. The most flagrant is at the level of experts and insurance companies. How often does an expert recognised by courts and courts, called by the Justice in the context of assessing the damage of a road accident, work at the same time for the same insurance company as the one called to intervene in the compensation of the damage? This was also noted by the Supreme Council of Justice, when it examined the problem through the audit carried out on this subject.

Everyone knows that this type of situation cannot happen. Therefore, since there is a register of experts called to perform tasks for Justice, it would not have been complicated, if one did not want to fall into the certification situation, to provide for a process of inclusion of information enabling the detection of the risks of partiality. In fact, beyond the people who will go into the hands of the expert, the magistrate must also be informed. You know, like me, that can change. An expert, once he has been included in the lists, can subsequently be approached by an insurance company or by a mutual and become the expert. It is therefore important that the magistrate be informed before proceeding with this designation.

You say that this will represent a too large and too complex workload, while the experts themselves had proposed to elaborate these disclosures. An expert X often works with such an insurance company. You prefer to leave this recommendation unanswered. This was probably one of the easiest solutions to set up since these lists of experts already exist.

That would have allowed, in any case, you will pass me the expression, to advance the Schmilblick.

Similarly, where is the declaration of commitment to comply with the Code of Deontology, which does not yet exist since it will need to be specified later? What will it contain? Will it be sufficient to guarantee the independence of the interested parties? In my opinion, there must be a relationship of trust between the victim, real or presumed, and justice. It cannot be established if the procedure for the appointment of the expert does not enable a risk of partiality to be raised. However, it should be noted that the present draft establishes few mechanisms for controlling the independence of judicial experts.

Another aspect of the project is highlighted. This is the contribution of interpreters and experts. You have received opinions, in particular those of sworn translators-interpreters. We know, from the beginning of the legislature, or even a little before, that this is a looming, and even screaming, problem. I do not know, Mr. Minister, if your services are systematically ringing the alarm bell and if you are informing yourself. However, I know that you are attentive to this type of problem. Did you know that police officers themselves are responsible for translating procedural documents when they receive people who come to file a complaint? Or they ask them to be accompanied by a close friend, for example a family member, to ensure the translation of their statement. This, of course, risks creating difficulties in terms of conflict of interest, deontology and professional secrecy – even though I know it will be harmed. If there are sworn translators-interpreters, they must pass through them. It is not the role of a police officer to ask a complainant to be accompanied by her husband, wife, or any other family member. Interpreters find this situation inappropriate.

Furthermore, given the low fees paid to them, they qualify this contribution that will be requested to them tomorrow as purely and simply indecent. In my opinion, we could have put, if not the whole, at least a large part of these costs at the expense of the State. The justice to be rendered, it seemed to me quite appropriate and indispensable for the State to find a solution in this regard.

Mr. Minister of Justice, I acknowledge that some elements are advances. That is why we will not vote against your bill. But this is a missed opportunity. Some things remain imperfect. We say to ourselves that you have not been sufficiently voluntary. This is why our group will abstain.

Mr. Speaker, colleagues, this draft has been the subject of a broad discussion in the committee and – as it has become a tradition – of two lectures. We have done good work in this area. It is a design that was proposed by colleague Becq at the time and is being implemented today.

Colleagues, I know that the payments of our court fees, in particular of the interpreters and the court experts, still do not go perfectly, but they go much better than it was when I took office. I think the professional groups also acknowledge this. In this sense, I hope that the contribution requested from them is tolerable.

As far as their independence is concerned, Mr. Lambrecht, we have adopted, in potpourri IV, a provision in the Judicial Code which obliges the judge to verify the independence of the judicial experts ad hoc. This can be concluded within eight days. The judicial expert there also has a deontological duty that can lead to sanctions by the acceptance committee if it is not respected.

I know that some of you, Mr. Van Hecke, would have preferred to see that immediately in the list of judicial experts in a special column there would be an imprint of those insurance firms for which they have acted or are acting in the past or present. For the time being, it did not seem judgmental – I have thoroughly argued this in the committee – because it imposes a heavy responsibility on the acceptance committee and the government as regards the correctness of that information. However, we are still in a transitional period and we need to evaluate what we will see today, if appropriate, approved by Parliament once that is at cross speed. I have told you that after the review, I am open to further refinement of this legislation.

I have heard that we are in the presence of a missed or missed opportunity. However, some progress has been seen, even by Mr. Massin. I am pleased that today we can vote on this long-awaited project.