Proposition 54K2259

Projet de loi portant simplification, harmonisation, informatisation et modernisation de dispositions de droit civil et de procédure civile ainsi que du notariat, et portant diverses mesures en matière de justice.

General information ¶

Submitted by

MR Swedish coalition

Submission date

Jan. 16, 2017

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

EC Directive administrative formalities professional secret civil law civil procedure computer crime law of succession family law private international law magistrate notary public prosecutor's department psychiatric institution legal profession judicial proceedings criminal procedure penalty extradition

Voting ¶

Voted to adopt

CD&V Open Vld N-VA LDD MR

Voted to reject

LE PS | SP DéFI PVDA | PTB

Abstained from voting

Groen Vooruit Ecolo ∉ PP VB

Party dissidents ¶

• Stéphanie Thoron (MR) abstained from voting.

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Discussion ¶

June 28, 2017 | Plenary session (Chamber of representatives)

Full source

The rapporteurs are Ms. Özen, Mr. Van Hecke and Mr. Brotcorne. They refer to the written report.

I will speak very briefly and from my bank.

This is Potpourri V. Time goes fast and the numbers follow, a little like the Rockyfilms, Mr. Minister.

However, the design is not insignificant and again includes a few interesting and good elements.

I would like to briefly emphasize one aspect for the interested members, as it can affect all of us, in particular the aspect of the shared professional secrecy, which is included in the government agreement and can be implemented with the draft underway.

I know that a lot of resistance has arisen against the shared professional secrecy in certain circles, including some in this hemisphere, and therefore I will make a final attempt to convince them that it is important. That is why I chose this point.

Everyone knows that today in practice various agencies try to provide a solution to certain problems in the context of domestic violence. In this context, several projects are emerging from the ground, such as the CO3 project. This brings people from different sectors together to see how they can solve a particular case. However, each of those persons is individually bound by his or her professional secrecy, which makes it difficult for them to consult when they gather. This shows much similarity with the Local Integral Security Cells, the LIVCs, in terms of terrorism. Also there, a mayor, an OCMW chairman, as well as someone from the police and other agencies around the table to discuss a particular case or a particular risk, while each individual is bound by the professional secret. They are not allowed to share certain things.

In practice, there are meetings, with the agreement what happens here, stays here. What is said during the meeting does not go out. They share their professional secrets. But as soon as they do, as they do with the CO3 agencies – who have done fantastic work in the context of intra-family violence – and as they do in other provinces, they do something that is not allowed. They work with the best intentions and with the best results, but they work that way in the illegality.

If we can fix this situation, we must do so. We must therefore provide them with a framework within which professional secrecy can be shared. Potpourri V provides for such a provision, within which the sharing of the professional secret is possible. There were comments from the State Council, which, however, were received satisfactorily. I am especially pleased that today I can report to all the relevant authorities that they are not only of good will, but also still doing correctly within the legal framework. Until today, they all went on ice. If there is something that cannot be expected from humanitarian workers and from people who want to do something for others, then it is that they are sent on smooth ice. We solve this issue today, only with this provision.

This is what I wanted to lose.

As we are at the end of the fifth volume of the famous rotten pots that succeeded, I must recognize to the government its skill, since it manages to bring through at once an incredible number of measures both fundamental and unjust. Measures that each would have deserved to be discussed separately but that the government has preferred to drown in hundreds of articles and amendments.

Only in this single rotten pot, the government attacks consumers, patients, the status of the magistrates and the weakest prosecutors. Before addressing some of these measures, I would like to stop on a first observation.

The first rotten pot suggests that there is no logical link between the measures contained in these four-all laws. There is, of course, a hope of saving on the back of the justiciable, by removing appeals. But as many experts have said, Mr. Minister, most of the measures will unfortunately only shift spending to other instances, judicial or non-judicial.

In reality, what emerges at the end of these five rotten pots is a regular and systematic attack on the founding principles of a democracy. You know well, Mr. Minister, this is not a surprise, I have repeatedly recalled it in committees, a democracy is based on the necessary control of those who have power. Suspicion must be the rule, and no authority is legitimate unless it knows counter-power. In other words, in a democracy, one should never give power to an authority because it would be virtuous by essence, because the concept of perfection is foreign to the human species.

All men, without exception, are failing and make mistakes, even abuses. The strength of a democracy is therefore to provide mechanisms capable of anticipating these mistakes and to avoid placing men in a position to make these mistakes and to abuse the power that is granted to them. It is also for this reason that democracy shares the roles of each and that the powers control each other.

However, since the beginning of this legislature, and this is ⁇ true through the so-called "pot-pourri" laws, we have witnessed a weakening of the judicial authorities. They are weakened because this government undermines their legitimacy by removing the remedies, by removing the controls and internal control mechanisms within it. And, in the end, all these measures represent a greater or lesser regression of our democracy.

As the first flagrant example to illustrate my proposal, I will cite, Mr. Minister, the suppression of the opposition in the first instance in civil matters and, beyond the fundamentally unjust and violent side of such a measure, since citizens tomorrow will be condemned to trials of which they simply do not know the existence, the government sends in the roses the very essence of the trial, its contradictory character. It belongs to a medieval conception of justice, the one in which the judge would, by his position of authority, be invested with a revealed truth. And one thus gradually departs from a conception of the judge that would be legitimate because his decisions are simply just or even contradictory.

Without the right of opposition, one is entitled to ask what this first instance is still for. It is unfair and this injustice is multiplied by the fact that it is tenants, populations unfamiliar with the legal lexicum, poorly literate who master very little French or Dutch, or simply hospitalized, who will be the first victims of this suppression of the opposition in first instance, that is, dear colleagues, populations that are plunged into their state of weakness, in their precariousness.

Likewise revealing this weakening of the judiciary, I would like to mention also the reform of the procedure before the Court of Cassation. Until now, the authority of the Court of Cassation had only the quality of its decisions to impose its authority. That was the only way for her to avoid criticism and, therefore, the control of the courts of appeal, a healthy and necessary control because the Court of Cassation, also composed of human beings, is by definition not infallible. This is a vision that was supported by his first president.

But just like the first-instance civil judge, the government seems to see the Court of Cassation as an infallible authority that doesn’t need contradiction or control. Thus, from now on, the decisions of the Court of Cassation will bind the referring courts. It does not matter if it affects the dynamics of a Court of Cassation that was, so far, really concerned about not being questioned.

This concerned only one or two dozen ⁇ over several decades, and it shows that this removal is more of a disturbing ideology than of an accounting and financial logic.

Dear colleagues, I am aware that the plenary session is not the place to resume the thorough debate that has already taken place in the committee and I will not go back in detail on the choice that the government has made to facilitate, by extending by five years the deadlines for prescription of water, energy and communications bills. I felt the Minister and the majority embarrassed by an indefensible choice before the consumer. So, of course, the argument of a necessary concordance between federal and regional legislation is not meaningless, but we are entitled to ask ourselves why it would be for the federal to adapt to the legislation of the federal entities and why the federal government, acknowledging in half words the difficulties it poses with such a long prescription, has not sought to agree with the Regions in order to adopt legislation more intentionally with regard to consumers.

I remind you that not paying your energy bill is often a compelled choice, that of family mothers having to make a choice at the end of the month between an empty refrigerator to fill, unexpected medical care and paying the energy bill. If we have to wait four or five years before finding a solution, we will only make already critical family situations worse. You know, too, that is only plunging entire families into precariousness, a choice that I deeply regret.

I will also not go back in detail on the changes made to the Judicial Order since the reform of the Judicial Stage seems to go, overall, in the right direction.

I have already expressed my reservations regarding the new status of judicial attached and the government’s power to organize recruitment examinations, because these two measures are ⁇ disturbing from a government that already refuses to fill the frameworks. Another source of concern for us is the pseudo-temporary grouping of jurisdictions. Like the Supreme Council of Justice, we are still looking for the criteria that will guarantee the temporary character of these mergers.

Given the savings imposed on Justice, one is entitled to fear that these savings and these temporary aggregations will not become definitive, from which the citizen’s justifiable will be further removed.

Finally, dear colleagues, before I get to the big piece of Pot-pourri V and its very essence, I must mention the strange choice of automatic promotion of body heads, since the confusion between management skills and those necessary to ensure the role of judge is already a problem in itself.

The worst is the consequences of automatic promotion. In some jurisdictions, it will simply block the way of any other magistrates who could legitimately claim to be promoted. Such a choice will not encourage young lawyers to embark on the judiciary. This falls badly since, you know, the Supreme Council of Justice has just recalled that competitions for access to the judiciary unfortunately attract fewer and fewer candidates.

Dear colleagues, after having said all this on the Pot-pourri V, we still need to mention these three small articles inserted at the end of the project and by which the majority MR/N-VA decided to unilaterally infringe on a right that is truly fundamental: access to care protected by professional secrecy. This point was far from unanimous.

Let us first recognize the quality of the hearings on the subject. On the one hand, they really helped to understand the need to protect the sharing of secrets between professionals and, on the other hand, they especially helped to highlight the violence of the government proposal. So, yes, the majority has evolved its amendment text into an amendment, but our fundamental and initial remarks have not disappeared, nor those of the State Council which clearly recalled them in its last opinion.

Before going into the details of the text, I would like to remind why professional secrecy is crucial to preserving our freedoms. Professional secrecy is, above all, a necessary condition for ensuring access to health care, whether physical or psychological. This right to health protection is inherent in the right to lead a life in accordance with human dignity. It is included in Article 23 of the Constitution.

It also guarantees the right to the protection of privacy, a protection that is too often forgotten since it is a sine qua non condition for everyone to live freely without having to pay back to anyone.

It is to benefit from a space of freedom where no authority, neither moral, religious, nor social, can impose other rules than those imposed by law. The protection of privacy is to choose his life freely, to leave the right to each to decide for himself. This right is guaranteed by Article 8 of the European Convention on Human Rights. It is therefore fundamental that a person who will seek help can do so without legitimate fear. This insurance is found in the law, in article 458 of the Criminal Code. This article assures the child who talks to his mistress, the victim of a rape who confides to a psychologist, the patient who will consult a doctor that they can trust without fear. It is not the good conscience of the professional who protects the patient but the law and the professional is never master of the secret, he is the depository. He must know that by revealing what has been entrusted to him, he exposes himself to criminal sanctions.

Some replied that there were already exceptions to Article 458 of the Criminal Code and that adding one more would not change anything.

To this I answer that there are fundamental differences between the existing exceptions already provided, such as the state of emergency, the non-assistance to persons in danger, the testimony in court and the assistance to persons in debilitated condition and the one proposed by the new Article 458ter, since all current exceptions require the trader to truly balance interests when preparing to break that professional secret.

In no case, even during a testimony in court, he is not immune of office from any criminal sanction at the moment when he breaks the secret.

On the contrary, the bill gives the King’s Attorney the power to dismiss the professional without any necessity, without a serious or actual danger being demonstrated. So, the professional is no longer required by law to make a balance of interest, he no longer has a penalty to fear. This power entrusted to the Procurator of the King is presented as a guarantee against abuse but is not one!

Here too – I return to my point from the beginning – an extraordinary power is entrusted to a person on the basis of the presumed virtues associated with his position of authority. Again, we create a power that is without any control.

Worse, the project puts the King’s prosecutor in a schizophrenic situation, since, on the one hand, he is expected to take charge of the investigation and prosecution of the offences, which is his role by essence, and, on the other hand, he is presented as the guardian of the rights of the person he intends to prosecute. It is illusory to expect the prosecutor to forget his natural role before convening one of these famous negotiations. As the counselor Dejemeppe well recalled, the King’s Attorney is not responsible for preventing offenses.

Finally, the person who disclosed the secret is completely absent from the considerations of the new article 458b. Whether it is a victim or alleged perpetrator, adult or child, its will is absolutely not taken into account. However, during the hearings, Mr. Simons, from the Antwerp CO2 project, made it clear to us that patient consent is systematically required before it is shared with other professionals. There is no longer a question of sharing professional secrecy for the majority of you, Mr. Minister.

Today, we even wonder whether the Antwerp experiment has not served as a pretext to introduce a breach in professional secrecy in the name of "all repressive". This breach only makes victims, but it is the victims, well before the criminals, who, thanks to the confidentiality of consultations, can find help from health professionals. This choice, for many victims, is much less difficult than filing a complaint at a police station.

Tomorrow, how many victims will no longer dare to go to a doctor or a psychologist because they will know that there is a risk that their secret will be revealed to the authorities? How many victims will lock themselves more and more in an isolation, experienced, therefore, as a second injustice?

For all these reasons, I have decided to re-submit my amendment on professional secrecy. This amendment organizes the sharing of professional secrecy in the patient’s interest and ensures that everyone’s role will be well respected.

Dear colleagues, you will understand that my group and myself cannot support a bill that, once again, is a violation of the rights of the prosecutors and a backdrop to our democracy.

Mr. Speaker, Mr. Minister, dear colleagues, a few words about this Pot-pourri V.

Yesterday, at the end of the committee, I felt some tension among my colleagues. This is the point I wanted to address in particular. This reflected the opposite of what we have tried to do for many months, or even a few years, within the Justice Committee, that is to ensure that everyone can be heard and that the work can be as constructive as possible.

It was about organizing hearings regarding a bill related to squats. After discussion, we were able to make sure that the opposition is heard in its desire to see its reflection fueled – with the majority – through hearings. I’ve been a little regret this moment that doesn’t match the way we’ve been trying to work for a while.

As part of Pot-pourri V, we used the same method. Some have regretted, from the beginning of these pot-pourri, that they were grouping too many subjects in a single text. But the will was known. This is what the minister called the “triple jump.” The will was, once the color had been announced, to quickly put in place strong measures to move the lines, so that the judicial machine could turn usefully. This is what has been done, with very strong themes, strong reforms, although integrated in very general texts.

With ⁇ also the difficulty for some, Mr. Minister, to have to vote against a text as a whole despite the presence in the text of elements that they supported massively. One may have the impression that texts that could have been more supported did not, because it is necessary to vote on the entire text. This may be the small limit of the Pot-pourri V exercise.

Now we are entering the next phase with more targeted texts. The votes given may help to identify the position of each more clearly.

You have reformed important elements of the cassation procedure. We talked about the effects of these. I would like to highlight this concrete example of our committee’s ability to hear the actors. In fact, the first president of the Court of Cassation had issued by letter the wish to be heard. We also heard the Attorney General at the Court of Cassation to have two expressions. A choice was made. You can either agree with it or not. We naturally assume this choice, but it will deserve a quick evaluation, as we have requested for most of the provisions that have been voted in the previous pot-pourris.

This is the same for the judicial organization, and for the judicial stage in particular. We were attentive to this; we felt that, on the one hand, the status of the judicial trainee was being strengthened, but that the perverse effect of this reinforcement was to be avoided, namely to make it a function or a status that would risk to persist and limit access to the judiciary. Indeed, the tasks would then be exercised by those judicial trainees who would have completed their internship. We have tried to find a balance, and to be sure that it is achieved, we will need to evaluate the situation. In one, two, three, or four years, we will see if the judicial internship is as attractive, and if there are as many nominations. These are not automatic, we know. The fact of doing his internship does not automatically induce the fact of becoming a magistrate, but it is an important pathway to access the magistracy, with a very specific training, which we all want, of course, the best possible.

To conclude, Mr. Minister, I wish that we can continue to work in the same climate, majority and opposition, each intervening in the same way, ensuring that the texts are as effective and as well written as possible. It is in this sense that my group will support your Pot-pourri V.

Mr. Minister, in the proposed fifth amalgam of legislative amendments there are, in addition to positive things, some less good and, in our opinion, even bad things. I will briefly overcome them.

Positive is, among other things, that the adoption rules and the approach to the problem of child abductions abroad have been improved. In the case of child abduction abroad by one of the parents, the bill already provides for faster cross-border procedures. The establishment of a central inheritance register that will bundle the acts, certificates and declarations of inheritance choice can also be approved by us. It reforms the rules surrounding the notarial office.

We had doubts about the reform of the declaration of rejection of inheritance or acceptance of estate description, but ultimately the new arrangement seems to be a good thing for the so-called small inheritances. One of the main points of discussion during the committee discussions was the issue of shared professional secrecy, which we learned from the hearings that it is a common practice in Wallonia. We believed that such a case consultation in various cases could ⁇ be useful, in particular to prevent terrorist crimes. We have already defended this idea in a previous discussion. Apparently, however, it remains a major twist point in the sector itself. Furthermore, we maintain our doubts about the articles concerning the judiciary, the judicial internship, the mobility and the reform of the resistance.

What we have not fully understood is why the majority adheres to a five-year prescription period for claims relating to water, gas, electricity, telecommunications and internet services. As regards that limitation of consumer debt, I suspect that you have chosen a convenience solution, Mr. Minister. The choice was mainly between one and five years and so you came out at that last term, namely five years. We contest the premise that a year is too short, not. However, we share the opinion of the High Council for Justice and of Test-Buy that the five-year term is far too long. We have therefore taken the suggestion of that institution and that organization to increase the limitation period for such debts to two years. In fact, the chapter of the Civil Code in which that article fits is perfectly suited to this. Furthermore, the ageing of those debts is thus put at the same level as the ageing of the sick-home debts, which Renaat Landuyt has initiated in the past.

Mr. Minister, I can only repeat that the debt problem – in that regard it is almost a debt industry; I cannot call it otherwise – has now become a very important topic. No one will argue that debts must be repaid, but that those debts by all kinds of actions and costs grow to the tenfold of the original debt and that the collection of those debts earns gross money, even without obtaining the creditor as the true repayment of the debt, in our case, a bridge too far. Mr. Minister, I will not fail to continue to ask you about these issues. I really expect you to take action in this area.

Mr. Speaker, colleagues, the Potpourri V was extensively discussed in the committee. The bill is indeed a real potpourri, because it contains all sorts of provisions and about some, by the way, there was little discussion in committees beyond the boundaries of majority and opposition. There was more discussion about other chapters. Therefore, one does not always get a very clear line in the moods: one must take into account all the elements of a text.

In any case, this text contains a lot of novelty. I will highlight a few striking points. The limitation period for the invoices of utility companies is increased to five years. That is problematic. Despite a number of well-founded opinions, the majority did not accept the amendment to bring that period to two years. There are also changes to the stage of the magistracy. There are changes to the regime for the rejection of inheritance and the acceptance under privilege of property descriptions, with a much greater role given to the notary. Notaries are subject to very old legislation. We have also encrypted some of the legislation on the notarial office, some of which are still regulated by decrees from the time of Napoleon or much earlier. In doing so, we have discovered that the texts applicable in our country have not even been translated into Dutch. As a result of this legislative change, a Dutch language translation will appear here and there. This is one of the benefits of this legislative amendment.

Everything was thoroughly discussed. There were useful hearings. The second reading also again showed its added value because a lot of corrections could be made. I think that in the event of an evaluation of the second reading, one should still look at the many texts that we have discussed in the Committee on Justice. One will then be able to determine what positive effects a second reading has, with a minimum of time loss. In any case, the loss of time does not offset the quality advantage that we can ⁇ through this.

As several other speakers have already cited, there is one point in this text about which there was a lot of discussion. I am referring, of course, to the articles on the section of professional secrecy.

Mr. Minister, you know our position: we do not agree with the proposed amendments. These changes were first introduced via the Potpourri IV. Mrs. De White said it reminded her of the Rockyfilms. I had the impression that it was about Rambo V because they wanted to hunt it very hard through the Parliament.

Despite many opinions and amendments, the text has changed, but it still does not satisfy us. I would like to explain briefly why not.

First, we understand that the functioning of the LIVCs today can be a problem because there is no clear legal basis for the exchange of information within that body. I have always been in favour of a general arrangement through Article 458bis, b or whatever; rather than through legislation specifically aimed at employees of social security institutions. I am talking about a law that was passed a few weeks ago. The above text, of course, is not just about the LIVCs, but goes much wider. For us, that is the problem. It is especially delicate to touch the articles on professional secrecy. The provisions and formulations as presented today in this text are, in our opinion, too broad and lead to a possibly too broad interpretation.

Second, I understand that there are situations where information should be able to be shared, even though the law today does not allow this or too little. It would have been better to clearly distinguish everything that has to do with terrorism and radicalism from the other types of case consultation. Regarding this in one provision is actually not a good thing.

Third, the consultation referred to herein may take place on the initiative and with the permission of the Prosecutor of the King. I still find this problematic. It is regulated that this can be regulated by law, decree or decree. Then we must wait until the Communities and the Regions draft regulations on certain topics and the Parliament must ultimately give its consent to organize that consultation in certain situations and in the context thereof share professional secrecy.

The contours of such a consultation should be clear. This is not the case with the text that precedes. It should be clear to us that no one can be required to be present and share information within the framework and application of this new legislation. This can and should never be an obligation. I think that all persons who are invited to sit around the table should still have the freedom to judge for themselves whether or not they will share information. I think this is essential.

I also think that people in the field have enough common sense to judge when it is really necessary to share affairs. We must be careful that there is no excessive pressure on the participants in this consultation.

The last observation I would like to make in this regard is that those communicated secrets may give rise to criminal prosecution. This is clearly stated in the new regulation. This is delicate, because the client may later, when a trial would follow, by viewing the criminal record notice that a number of data and information that was communicated in full confidence also entered the criminal record. This is especially delicate and dangerous for the trust relationship between someone who seeks help and the professional who must provide this help. In the long run, this can have serious consequences.

Therefore, we have a big problem with the text as it presents today. We voted against this title. For this reason, we cannot approve this text, but you might have already understood it.

Mr. Speaker, Mr. Minister, rest assured, I do not come to the tribune because I want to talk long, unlike my colleagues who remain in their place believing that they are shorter. But I don’t like to speak to the minister in his back. In our home, it is not polite to talk in someone’s back.

On the method, Mr. President, I recognized your great wisdom and skill. It is one or the other, but often the two go hand in hand. It's a shame, but I say it at every pot-pourri: we are led to discuss things with which we are totally in agreement, which we like, which we appreciate, and then we find on other pages of the document texts with which we cannot be in agreement. And in the end, we are obliged – it is a pity for you, Mr. Minister, for your statistics, for the support that we could provide to a part of your policy – not to be among those who would like to support it.

I have a little idea of why we work this way. I suppose — but ⁇ you will tell me that I am doing a very bad reading — that this is a way of finding, for each of the groups of the majority, one or the other thing in their program. This will ensure the cohesion of the majority.

That said, Mr. Minister, if there are interesting points, I will only stop at those who... I see that the minister acquiesces sometimes. I often see Mrs. Onkelinx doing this in front of me, but here, from time to time, the minister also dodeline the head and thus acquiesce.

The [...]

No, no, we will come back. I wasn’t talking about the exercises you could have done as part of the policies carried out, I was just talking about head movements.

That said, Mr. Minister – and to avoid too long debates, since everything has already been said or almost in commission – there are essentially four reasons why we will not be able to follow you in this Pot-pourri V.

The first is the removal of the opposition. What devil, why did you, at one point, estimate, consider, dream that it was an extraordinary advance in the field of efficient justice to suppress opposition, while it is known that statistically, the judgments made by default and subsequently being the subject of opposition are not very numerous? We had the numbers: maybe 10%, sometimes even 5%. This has little impact on the workload of the judges. In this case, why should we touch this essential principle, which means that, in our justice, contradictory debates are carried out, in order to reach a decision that can be better accepted by those to whom it is imposed because it has been the subject of a genuine debate?

I will not retake all the arguments that I have evoked in the committee but rather insist on what the Court of Cassation said, which reminded us very opportunely, I find, that the judge is the protector of the person who is defective.

Well, I think that the legislator must also be the protector of this justiciable that is defective because the defect is not only ... The reading that we have of it in particular in view of the motivation that presides in this project that is submitted to us, is that the fact of making defect and, then, opposition, these are means of abuse, dilatory means. But we know that this is not the reality, even though we cannot deny that, in some situations, these reasons are indeed existing. But that is not the main thing.

The main defect is often an absence, a misunderstanding of the quotation, a hospitalization, a situation of illiteracy. There are many elements that can explain why people are missing. Therefore, to propose today to remove purely and simply the opposition, except where appeal is not possible, and to reserve to those who are in this situation only the way of appeal, is just going against your will to discharge the courts of appeal and to ensure that the decisions are taken in first instance.

The second reason why we will not be able to follow you, Mr. Minister, lies in this new postponement, the sixth postponement of the entry into force of a whole series of articles concerning the legal status of the detainee, a law whose advances have been so praised and which, today, in many respects, remains inapplicable for mainly budgetary reasons: lack of resources, lack of personnel, lack of capacity to engage the persons necessary for a serious framework of those whose reintegration is aimed at the best possible conditions. It is essentially this insertion path that, once again, is postponed to 1 October 2019. This, while you do not cease, with your majority, to extend the rate of penalties and consequently to extend the time of presence in prison because the penalties are increasing and because we have also made sure to make more complicated conditional release.

At the same time, we are faced with a prison overpopulation for which we no longer know what to invent to reduce it. Once, it is imagined to impose quotas on pre-trial detention on the instruction judges. Fortunately, you came back with that idea. Today, I read that we might consider extending prison leave to one week instead of 36 hours. One in two weeks, it would be possible to leave as part of the execution of his sentence. This seems extremely complicated and we would do better to devote our energy and financial and human resources to creating a true path of insertion rather than let people go out without accompaniment and without a concrete project.

We could not sign our agreement on the prescription time in terms of energy supply. Generally speaking, in terms of energy, moving from two to five years, for the pretext already mentioned by other speakers, does not seem sufficiently relevant to us. We believe that other solutions can be found.

Finally, Mr. Minister, you know that the real stumbling stone of your Pot-pourri V is the fate made again to professional secrecy. This subject is delicate. It exists in the concern to protect the person at one time or another for various reasons and to lead him to entrust himself to a professional whom he knows will keep for him the information that he will collect as part of a single conference, if one can qualify it in this way. There is no disclosure. For some time, it has been heard that professional secrecy is an obstacle to criminal prosecution and public safety. It is therefore necessary to make sure that it serves, even if it is not completely lifted, as a valve allowing public action or prevention to exercise.

We must remember that professional secrecy is not, in our law, absolute. There are already breaches of professional secrecy. This has been recalled: it can be lifted when a judge decides it and when a testimony in court is considered necessary to make a case evolve.

We are in a state of necessity. We have Article 458bis which was introduced as a result of our work of the Commission of Inquiry on Sexual Abuse and which has enabled further progress in situations of precariousness and in particular with regard to minors victims of this type of abuse.

Today, another gap has been opened, with which my group has also agreed, on terrorism. This has been the subject of relatively intense discussions. If, at some point, we were able to agree to accept that, in this additional hypothesis of proven or envisaged terrorism, professional secrecy might also be found to be challenged, it now seems to us that we should not go further. We must not go beyond. What you are considering today in a more general way is the limit that should not be crossed, especially since what you are proposing us is not a sharing of professional secrecy. The sharing of professional secrecy, today, among professionals, exists.

Today, what you are proposing to us is a kind of consultation with a third party who, in any case not in the same way, is not bound to professional secrecy, who is the prosecutor of the King who is coming, who will be able to impose this consultation, who will lead the debates, who will say under what conditions the secret could be lifted or not, who will have the hand but with what purpose? Not that which is related to the necessity and utility of professional secrecy but that of being able to prosecute offenses. The King’s Prosecutor, the police forces that participate in this kind of concertation have only one goal – one can understand it – it is their role, it is the mission that they must fulfill, it is to try to “subtract” – one can almost say it like that – information that will be useful to them in files at the examination or instruction.

I think we are going beyond the limit here. Mr. Minister, in commission, you who are a flegmatic man, I managed to get you out of your gonds. Finally, I’ve succeeded, I don’t know if it’s a victory, but you’re a bit angry. You are a rational, flegmatic man but you were angry because at some point I told you my feelings. This is the analysis I am doing, Mr. Minister, it may not be the one you are doing. I told you that I had the feeling that we want here to respond to a request for land. This was also at the outset the objective of a proposal of law filed by Brother Terwingen, which I unfortunately do not see here, whose objective was to make it possible to make ⁇ safer in law the practices that were in practice, if I am not mistaken, within the courts of the jurisdiction of Antwerp.

These practices were interesting as part of the fight against the vicissitudes of which children and minors may be victims.

I told you on this occasion that the Sixth Reform of the State may have provided the means for the Communities, or even the Regions, to resolve these situations by decree themselves, if they wish. The approaches, depending on the hearings we had within the committee, were relatively different between the north and south of the country.

I didn’t want to make it a community problem, what you believed and that had brought you out of your gonds. I said that we may, with the current developments in our federal state, have the capacity to act according to the needs or policies we wish to carry out in our respective communities. It appears that the policies carried out in the Wallonia-Brussels Federation are significantly different from those carried out in the north of the country.

All the speakers of the youth aid on the French-speaking side told us that accepting the text proposed today will compel them to review the decrees that in the Federation Wallonia-Bruxelles organize what falls within the scope of professional secrecy, case consultations and sharing. That is why I found that, regardless of the more philosophical and fundamental aspects, there was in this text an approach that could have satisfied those who wished to see this lifting of professional secrecy expanded according to the policies carried out at home. I remain convinced that this is the true ratio legis of what is proposed to us here.

Mr. Minister, what you propose to us may also be counterproductive, because the professional will always be able to shut himself behind his right to silence. This will create frustration among the King’s prosecutors or police services who attend these meetings and who will find themselves confronted with professionals who have a deontology that is not theirs. They might get out of those frustrated meetings because they didn’t get the information they thought they could get.

The other stakeholders will be in a disadvantaged position, in a strength ratio that is not favorable to them. Anyone who is not used to standing in front of a representative of the prosecutor's office or law enforcement may be shaken or "under influence" and, in the end, we may find it difficult to assess proportionality to arbitrate a conflict of values between the need to protect the professional secret and the need to disclose it for specific reasons.

I think that this will hurt the work of all those who, today, because they can not lock themselves behind the professional secret but benefit from it, have a relationship of trust with the people who contact them or consult them.

Mr. Minister, here are the four reasons why the CDH group will not be able to follow you in the approval of this Pot-pourri V.

There are no more registered speakers. I will give the word to the government.

Mr. Speaker, let me first say that I no longer feel the need to propose another Potpourri VI. Just the fact that there could be a comparison between the actor of the Rockyfilms and your servant is scary enough not to go on with that numbering.

Allow me also to say, Mr. Brotcorne, that it was by no means the idea, in the context of the pot-pourris, of exchanging gifts between the different members of the majority. In any case, for my CV, I still have the votes of the committee. In committee, from time to time, you have had the kindness – which I would not dare to call wisdom – to follow certain government texts and I humbly thank you for that.

Although the discussions within the framework of the Justice Committee always take place in an atmosphere of total collegiality, I am a little disgusted by these words "backback of democracy". I have heard them too often. It is said that I have postponed some provisions regarding the position of the prisoner, that is true. You had a law on internment that dates back to 2007. It is this government that has brought into force a law on internment worthy of this name and worthy of our civilization. It entered into force on 1 October 2016.

Everything you could do to accommodate interned people outside prison establishments, the law on internment, preceded this government.

Obviously, Mrs. Onkelinx, I did not doubt what you did. The only thing that annoys me a little, I apologize, is that you talked about backward democracy. I was going to say that a government that does all this for internment within the framework of the pot-pourri laws, which puts under the tutelage of Parliament the surveillance of prisoners in Pot-pourri IV, is not entirely a government that makes democracy backward. I do not accept the words “repulsion of democracy” and “repulsion of civilization”. I cannot say without reacting.

Mr. Minister, I want to clarify my word because you are very strong to drown the fish.

I did not speak of internment, but of the abolition of the opposition, which removed a way of appeal for the failing justiciables. Very often, it is justiciables who are precarious and who do not understand the legal vocabulary well.

At the end of your speech, you used the term “backward democracy”.

It’s not serious, but I don’t like this term. I can say it anyway, right? It is my right.

With regard to civil proceedings, I understand that it is difficult to talk about procedural economics. For all those who love law, the term “economy” sounds bad. However, I do not believe that there is a country where the modification of the legislation on cassation would not be acceptable because the highest court has the right to decide as it wants, as the Constitutional Court does in our country or the Court of Justice in Luxembourg. I do not see how this procedural economy would hurt anything.

When the Court finds that a certain argument, even if the Court of Appeal has not answered, cannot have an effect on the continuation of the proceedings, it also seems to me to be a normal measure of procedural economy not to request the referral of the case to the Court of Appeal in question. This is procedural economy, and again, I apologize for using the word “economy”.

I have a lack in civil matters. We amended Article 806 as part of this Pot-pourri V, in the sense that we were asked. Finally, not only public order, but also arguments that can be raised by office, can always be invoked by the judge who must judge in relation to a defect of the defendant or defendant. To this extent, Mr. Brotcorne, I believe that we have ⁇ ined the rule that the judge is indeed the one who takes the defence of the defendant. In addition, we provided the possibility for the one who is missing to prove that he was not in the possibility to accept the quote. He may prove this and prove force majeure or other circumstances justifying his absence at the hearing.

With regard to the judicial attached, we are doing well in the end, because for now, on both sides of the country, we are experiencing problems with some legal trainees who are contractual and who cannot be appointed for one reason or another. This reason may be the lack of vacancy, but it may also be the fact that a younger person, who entered the stage later, receives the function, while the one who has more old age does not receive it. The judicial internship is not a guarantee of appointment, and therefore, by the judicial attached, who, even outside of any economy, who are statutory, we make a good choice that does not make at all impossible the fact that this judicial attached is appointed later.

I am very pleased that on the part of the inheritance law and the notary there are some favorable elements in the present draft.

Mrs Lambrecht, as regards the limitation period, I do not know if you were already a member of the committee at that time, because we have been discussing this draft for quite a long time. I am, by the way, completely won for the second reading, Mr. Van Hecke, but if you see the time we have done on Potpourri V, then one can not speak of hurry, not even in terms of professional secrecy.

However, as far as the limitation period is concerned, I first agreed with your opinion that two years would be better. I then let the matter entirely disappear by my administration and concluded that it would probably be a worse thing on the part of the debtor’s interests to take two years instead of five years, not only for decretal reasons – which has been thoroughly explained with notes in Parliament – but also because friendly arrangements and payment plans would become much more difficult. That is to say, one would move much faster to a collection and thus to costs of forced collection. It is for this reason that in terms of federal law – call that again process economy, I’m not shy of that word – we have finally chosen the five-year term, more in the interest than against the interest of the prosecutor, because I had long admitted your opinion.

Regarding professional secrecy, I admit, dear colleagues, that this is a difficult issue. This is a fundamental issue to which we, I think, have ultimately paid more than the necessary care.

First of all, Mr. Brotcorne, when I show you that I am angry, it generally means that I have a lot of respect for you.

Secondly, as regards the community question you raised, I am in possession of a letter from Mr. Page, accompanied by a note from Professor Behrendt which, precisely, raises this problem of secrecy. And even if I use the words wrong, I will talk about the shared secret on terrorism. I think he’s talking about another community in our country and I think that’s relevant. I think that the French Community, one day, will not necessarily be unhappy because we have introduced this article 458ter.

Indeed, it is clear that it can only be used within the framework of a certain purpose, limited by the legislator: physical or psychological integrity or terrorism. I believe that these two purposes limit the prerogatives of the main judge who will ultimately judge the case and who may or may not use this secret communicated in the context of a negotiation, for example under the supervision of the prosecutor’s office. I also think that this purpose also limits the abuse that justice or some of its members could make of this provision that we have just created. Moreover, I think there is no duty to speak, as you rightly pointed out.

I think Mr. Van Hecke also underlined that: there is no obligation to speak, there is a right to speak.

And those who emphasize deontology can at the same time speak of orders that will be counseling in delicate affairs that put the professional before the choice between the right to keep silent and the right to speak.

The professional shall therefore be under no obligation to disclose secrets which he has become holder in virtue of his function.

But I believe that this is important, for security, in the context of domestic violence. We have shown that this is not just a matter of terror or a matter of security in the sense that this term is generally understood.

On the one hand, we know a problem of extreme violence, terrorism, where we, with the LIVCs to which Ms. De Wit referred, precisely need to be able to communicate with confidence between professionals. On the other hand, we know of a very personal problem, intrafamily violence, where criminal law has long been struck at its limits. For example, the uithuiszetting, a sanction that was approved during the previous legislature, appears to be ineffective at all in restoring a family that still shows some cohesion. It is precisely the possibility that exists in the context of such a case-consultation to come to the sharing of secrets that can prevent the actual entry into force of criminal law with respect to a partner, a father or a mother who has taken advantage of intra-family violence and who will do so again in the future.

I know that many people have doubts about this and I understand that too. However, I find it a provision that is consistent with the sense of law of most people who think about this kind of problem. There is the right to speak and there is the right to be silent. The secret may only be used in the context of the finality on which the consultation has taken place. In that sense, I think this is a progress.

Nevertheless, I dare to point out once again that all those who consider professional secrecy so fundamental are usually also not in favour of the aggravation of the penalties relating to professional secrecy. Violation of professional secrecy has so far been punished with a maximum sentence of six months. Within the framework of this law, we extend that to three years, which indicates that the legislature which, on the one hand, gives the professional the right to speak, on the other hand also says that when it is not within the framework of that finality he must remain silent, thereby increasing the punishment, without affecting the source secret, something I have watched about.

I think this is a balanced regulation and I hope it can extend to benefit our criminal justice system.

Thank you, Mr President.