Belgium

Case concerning excessive length of criminal proceedings classified under the Bell group.

The Dumont group concerning the excessive length of judicial proceedings (civil and criminal) was closed (17 cases) in December 2015. The examination of general measures still required continued with the Bell group (seven cases) concerning the excessive length of proceedings, mainly of civil cases at first instance between 1981 and 2011 (violations of Article 6 § 1).

In September 2018, the Committee closed the examination of six cases of the Bell group, having regard to the individual measures adopted, while recalling that the general measures continued to be examined within the framework of the Bell judgment. In December 2018, it closed its supervision of the situation of labour tribunals and courts and of criminal cases of the Court of Cassation’s Dutch-language chamber, limiting its supervision to the excessive length of civil proceedings before first instance tribunals.

The Abboud group concerns the excessive length of criminal proceedings, in particular their judicial investigation phase between 2003 and 2015 (violations of Article 6 § 1). This issue has already been examined in two groups of cases concerning older facts, the follow-up of which has been closed.

In its latest assessment (20-22 September 2022, 1443rd meeting), the Committee of Ministers recalled that length of proceedings and judicial backlogs are long-standing problems in Belgium and constitute a serious danger for the respect of the rule of law and access to justice. Then the Committee noted with interest that the authorities show a clear willingness to tackle the excessive length of judicial proceedings and that new measures have been taken, including a priority assistance of some courts and tribunals; it underlined the importance of acting without further delay and encouraged the authorities to assess the impact of the measures already adopted, to monitor the judicial backlog and to rapidly draw up appropriate action plans for the courts and tribunals most affected, in particular, the Brussels court of appeal; it also deplored the persistent lack of data on the average processing time (“disposition time”) of civil proceedings at first instance and recalled that there is a more general weakness in judicial statistics, preventing the measurement of the efficiency of the Belgian Justice system, the full assessment of the execution of judgments and, above all, the adoption of appropriate policies and measures.

The Committee asked for the submission of updated information by June 2023 on all outstanding issues and decided to review these cases, at the latest, at the meeting in December 2023.

The Court found the violation of Article 6 on account of the applicant’s not being able to appeal against the suspension of her duties as a member of the High Council of Justice by that body between May 2013 and March 2015, on the grounds that she was the subject of criminal proceedings. The Court concluded that the government had not demonstrated the existence of any remedy that would have enabled the applicant to have the suspension decision judicially reviewed and to obtain its annulment or suspension. After being acquitted in 2015, the Council found that the conditions for the applicant to resume her duties had been met. She decided, however, to resign.

The law of January 20, 2014 (which came into force on February 3, 2014) extended the jurisdiction of the administrative litigation section of the Council of State, by amending Article 14 § 1 of the coordinated laws on the Council of State, which now provides that: “If the litigation is not assigned by law to another jurisdiction, (…) Council of State rules by way of judgments on appeals for annulment on grounds of violation of either substantial forms or prescribed on pain of nullity, excess or misuse of power, lodged against the acts and regulations: 1° of the various administrative authorities; 2° of the legislative assemblies or their bodies, including the ombudsmen attached to these assemblies, the Court of Auditors and the Constitutional Court, the Council of State and the administrative jurisdictions, as well as the bodies of the judiciary and the High Council of Justice, relating to public contracts, to members of their staff, as well as to recruitment, designation, appointment to a public office or measures of a disciplinary nature”. According to the authorities, this law refers to members of the Supreme Council of Justice and not to its representatives, discussions are underway with the FPS Interior with a view to possibly supplementing this provision.

The Mugemangango case concerns the absence of a procedure offering adequate and sufficient safeguards to prevent arbitrariness and to ensure (…) effective examination of the complaint of the applicant, a candidate for election to the Parliament of the Walloon Region (“the Walloon Parliament”) in 2014, who sought a recount of the ballot papers for his electoral constituency, after having lacked 14 votes to obtain a seat. His complaint “was examined by a body [the Walloon Parliament] which did not provide the requisite guarantees of its impartiality (…) and whose discretion was not circumscribed with sufficient precision by provisions of domestic law” and “the safeguards afforded to the applicant during the procedure were likewise insufficient, having been introduced on a discretionary basis” (§ 122).

While recalling the diversity of electoral systems in Europe, the subsidiarity principle and the wide margin of appreciation of States in organising their electoral system (§ 138), the Court indicated that “a judicial or judicial-type remedy, whether at first instance or following a decision by a non-judicial body, is in principle such as to satisfy the requirements of Article 3 of Protocol No. 1” (§ 139).

The Committee of Ministers examined the case last in June 2022. On 10 October 2023, the authorities updated their action plan from 15 December 2022.

This case concerns an infringement of the applicant’s right to a fair trial, due to his criminal conviction in 2018 for rebellion and beating the officer who came to assist, which occurred in the context of his 2009 police stop, based solely on the statements of the police officers present at the scene, including the police officers who inflicted degrading treatment on him recognised by the Government in its unilateral declaration to the Court.

The Court notes that, by contrast, the Brussels Court of Appeal reduced the probative value of the statements of the four defence witnesses, on the grounds that, knowing the applicant, they did not offer sufficient guarantees of independence. It also noted that no other testimony or evidence supported the police officers’ version of rebellion. This is particularly problematic in the specific circumstances of this case, where the applicant’s arrest was found to be contrary to Article 3. Lastly, the Court cannot agree with the Government’s contention that the evidence before the domestic courts failed to establish “beyond reasonable doubt” the absence of rebellion, which would amount to reversing the burden of proof in criminal matters which lies with the prosecution.

On July 4, 2023, the authorities transmitted an action plan in this case (DH-DD(2023)818).

This case concerns the excessive formalism, in June 2016, of the Cour de Cassation, which ruled that the appeals of the two applicants against the judgments convicting them in criminal proceedings for tax offences were inadmissible, due to the absence of mention by their lawyer of the certificate required to act before it.

To remedy the situation that the Court of Cassation was unable to verify authentically whether or not a lawyer held the certificate required to lodge an appeal in cassation, a commitment was made on June 20, 2018 by the country’s Bar Associations regarding the transmission and publication of an updated list of prize-winners each year.

The case concerns the applicant’s lack of access to a court, resulting from excessive formalism by the Court of Cassation – its declaration of the applicant’s appeal inadmissible due to the late filing of his amplifying brief. The gap in the procedural rules of cassation was not filled by the Cour de cassation which, referring to their public policy nature, ruled that neither the rights of the defense nor the claimant’s right to a fair trial justified departing from them. A contrario, the Court held that this regulation, combined with the legal uncertainty at the material time concerning the suspension and interruption of the limitation period by the filing of an action for annulment, affected the very substance of his right of access to a court.

On March 8, 2022, the authorities submitted an action plan for this dossier (DH-DD(2022)298).

Discussions are underway between the administration and the Court of Cassation to remedy the fact that there is no provision in the Judicial Code which allows a plaintiff in cassation to put forward a new plea based on the violation of a legal provision applicable to the current dispute, when it has come into force while the appeal in cassation is pending but the time limit for submitting an ampliatory brief has expired, even if this would mean giving effect to a retroactive law.

The solutions under consideration consist in introducing the possibility, in such cases, of submitting either a brief or a supplementary petition, with a view to invoking the plea within the one or three-month time limit, with a right for the opposing party to respond to this new plea for cassation.