belgiquelex.be - Carrefour Bank of Legislation

10 AOUT 2005. - Act establishing the information system Phenix (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I. - Definitions and principles
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. It is created a system of information called Phenix, which aims at the internal and external communication required by the functioning of justice, the management and preservation of judicial records, the establishment of a national role, the establishment of a bank of jurisprudence data, the development of statistics and assistance in the management and administration of judicial institutions.
Phenix is headed by a management committee and a monitoring committee, which are advised by a user committee. The composition, missions and competencies of these committees are set out in this Act.
The resources required for the creation and operation of Phenix are included in the SPF Justice budget.
Internal and external communications
Art. 3. The internal communication refers to the communications required for the operation and management of courts and tribunals and their prosecutors, as well as the establishment and management of procedural records.
The external communication refers to the notification, service and communication of acts required by judicial proceedings, as well as communication with public authorities for the collection of data necessary for the development and management of judicial records.
Art. 4. It is created within Phenix a central repository of electronic judicial addresses, accessible to members of the judiciary and judicial officers, as well as to other categories of persons determined by the King on the proposal of the management committee and after the advice of the monitoring committee.
The King further determines, on the proposal of the management committee and after the advice of the monitoring committee, the data collected in this directory, the data collection modalities, the retention period, the data sustainability rules, and the access and authentication procedures.
Management and preservation of judicial records
Art. 5. Within Phenix is created a treatment for the management and preservation of judicial records.
The data processed in judicial records, the circumstances of the processing and the duration of the retention are determined by the Judicial Code and the Code of Criminal Investigation and by the specific provisions governing the composition of such records.
In accordance with the Judicial Code, the Code of Criminal Investigation and the special provisions, the King shall determine, on the proposal of the Management Committee and after the advice of the Oversight Committee, the rules of data sustainability, the rules of access and authentication of access to judicial records.
National role
Art. 6. Within Phenix, it is created a national role.
Any case brought before the judiciary must be included in the national role and be assigned a single number.
In accordance with the Judicial Code, the Code of Criminal Investigation and the special provisions, the King shall determine, on the proposal of the Management Committee and after the advice of the Monitoring Committee, the rules of data sustainability, as well as the rules of access and authentication of access to the role.
Case Law Data Bank
Art. 7. Without prejudice to the provisions of the Act of 8 August 1997 relating to the central criminal record, it is created, within Phenix, a data bank of internal jurisprudence, in order to allow the processing of judicial records by the various members of the same jurisdiction, and an external data bank, intended to disseminate in the public decisions of importance to the knowledge and evolution of the law.
Art. 8. The internal case law database includes all decisions of the courts in their entirety.
The decisions of each jurisdiction are accessible only to members of that jurisdiction.
Members of the judicial system only access them in order to perform their professional duties.
The King shall determine, on the proposal of the management committee and after the advice of the monitoring committee, the rules for the sustainability of the data, the terms and conditions of access and the categories of persons who have access to that bank, as well as the special security measures of that data bank.
Art. 9. The external case law database includes decisions selected by each jurisdiction, in accordance with the selection rules determined by the management committee, after consultation with the user committee.
Selected decisions containing personal data are generally anonymized.
The King shall determine, on the proposal of the Management Committee and after the advice of the Supervisory Committee, the modalities for anonymization of decisions, the exceptions that may be required to this rule for understanding decisions, and the manner in which the persons cited in the decisions may object, if any, to the mention in the published decisions of personal data concerning them.
Internal and external statistics
Art. 10. It is established within Phenix a personal data processing for the development of internal statistics and the processing of anonymous or personal data coded for the development of external statistics for third parties to the jurisdiction.
Art. 11. The processing of internal statistical data is developed at the request of the head of the body, in order to ensure the proper management of a court or prosecutor's office.
Art. 12. At the request of the Minister of Justice, one or more heads of bodies, the Supreme Council of Justice or its own initiative, the Phenix Management Committee sets out comprehensive statistics on the workload of the judiciary, the functioning of judicial institutions and the cases brought before the judicial authorities.
The data are, prior to the external statistical processing, anonymized or coded in the manner determined by the King on the proposal of the management committee, after the advice of the monitoring committee.
Art. 13. The King shall determine, on the proposal of the management committee and after the advice of the monitoring committee, the modalities for the execution of statistical data processing, as well as the rules for the sustainability of data.
Assistance in the management and administration of judicial institutions
Art. 14. Assistance in the management and administration of judicial institutions is for human resources management, documentation management, supply management and accounting.
The King shall determine, on the proposal of the Management Committee and after the advice of the Supervisory Committee, the terms and conditions of operation, the rules of access, the special security measures of these treatments, and the rules for the sustainability of the data.
CHAPTER II. - Organs of Phenix
The Management Committee
Art. 15. § 1^er. A Phenix Management Committee is established, consisting of a Chair, a Vice-Chair, 8 effective members and 8 alternate members.
§ 2. The President and the Vice-President shall be appointed, for a term of six years renewable, by the King, by order deliberately in the Council of Ministers, one of two on a joint proposal by the first President of the Court of Cassation and the Attorney General near the Court of Cassation, the other on a proposal by the Minister of Justice.
They exchange their function after 3 years. A three-year term interrupted before term is completed by a newly designated person in the manner used to designate the predecessor.
They are chosen from persons offering all guarantees of independence and possessing well-known skills in the knowledge of law and information management.
The Chair and Vice-Chair are of different linguistic roles.
At least one of the two must be a judicial magistrate.
When the president is prevented from performing his duties, he is replaced by the vice-president and default by the oldest member, and among the members who have the same seniority, the oldest.
§ 3. Members shall be appointed by the King, by order deliberately in the Council of Ministers, including 4 effective members and 4 alternate members on the proposal of the Minister of Justice and 4 effective members and 4 alternate members on a joint proposal by the first President of the Court of Cassation and the Attorney General near the Court of Cassation.
The order of presentation of members takes into account the most balanced participation possible on the functional and gender level.
Among the actual and alternate members presented by the first president and the Attorney General near the Court of Cassation, at least two members must be members of a public prosecutor's office or a first-instance auditor's office, at least one must be a member of a court of appeal or the Court of Cassation, at least one must be a member of the office of a first-degree court, at least one must have the capacity of a member of at least one
§ 4. The Minister of Justice ensures that vacancies are published in the Belgian Monitor. Nominations are addressed to the Chair of the SPF Justice Management Committee.
§ 5. The management committee is composed of an equal number of members of French expression and Dutch expression.
§ 6. Members are appointed for a renewable term of 6 years.
§ 7. The Chair and Vice-Chair of the User Committee also sit in the Management Committee, with an advisory voice.
§ 8. The President, the Vice-President and members are held by professional secrecy with respect to the nominal information they are aware of in their functions.
§ 9. The Competent Disciplinary Authority shall inform the Management Committee of any disciplinary proceedings initiated against one of its members and of the reasons for the prosecution. If these facts relate to the member's activity within the management committee, the member shall issue a notice that is attached to the disciplinary proceedings file.
§ 10. The King determines the amount of attendance tokens and travel expenses that may be granted to members.
Art. 16. § 1^er. The Chair and Vice-Chair of the Management Committee shall serve on a full-time basis.
During their term of office, they may not engage in any other professional activity unless authorized by the Council of Ministers.
They enjoy equal treatment with that of the first general lawyer near the Court of Cassation, as well as increases and benefits associated with it.
§ 2. The president or vice-president who is a magistrate of the judicial order shall be detached by his jurisdiction.
He is appointed to replace him as a magistrate by an overcrowding appointment. If it is a head of body, it is provided for its replacement by the over-numbered appointment of a magistrate at the immediately lower rank. He returned to the rank list as soon as his term expired.
Art. 17. The Management Committee manages Phenix and takes any initiative that can contribute to improving its effectiveness, in accordance with the provisions of this Act, the Judicial Code, the Criminal Code and other relevant legal provisions.
It shall make all decisions required by the provisions of this Act.
He gives his opinion to the Minister of Justice, the Court of Cassation and the Supreme Council of Justice on all means necessary for the proper functioning of Phenix and the exercise of his powers.
It establishes a code service, which is responsible for proposing the codes required by the creation and management of the data bank.
It adopts the codes.
It examines and responds to the suggestions of the user committee on a reasoned basis.
It takes any initiative that allows the Phenix system to be adapted to legislative, regulatory or technological changes, especially in the simplification of judicial language.
It concludes with SPF Justice the services agreements required by system management.
He proposes to the King, after the advice of the monitoring committee, the rules for access and authentication of access to electronic procedural records and data contained in the system.
It certifies the conformity of documents that have been converted or placed on a new electronic medium.
Art. 18. The management committee shall only deliberate validly if the majority of its members are present.
It shall decide by a majority of the members present or represented by their alternates. In the event of parity of votes, the President's voice, or, if prevented, of the Vice-President, is preponderant.
In the event of an emergency, the Chair decides on his own and notifies his decision to the members of the management committee.
Its decision becomes final if it is not reversed within one month by the management committee.
Art. 19. The Management Committee shall develop a monitoring mechanism:
- at the entrance of the premises where the data processing facilities are located;
- memory of computers dealing with data;
- supports on which the data is stored;
- the introduction of data;
- availability of data processing;
- use of data processing;
- data communication;
- access to data processing;
- data archiving mechanism;
- the choice of technical standards used for data backup and communication.
The Committee shall, at the request of the Oversight Committee, be informed of its findings.
Art. 20. The Management Committee shall inform the Minister of Justice and the relevant Head of Body of all anomalies and deficiencies in the rules governing Phenix.
Art. 21. The Management Committee shall, on April 1, each year, communicate to the Minister of Justice and the Court of Cassation its activity report, including the budget estimates for the operation of Phenix and the modalities for the retention of existing data.
Oversight Committee
Art. 22. Within the Privacy Commission, a "Phenix" Sectoral Monitoring Committee is established, consisting of:
- 3 effective members and 3 alternate members appointed by the Commission on the Protection of Privacy within it, including at least one magistrate;
- 3 effective members, including the President, and 3 alternate members, all of whom are judges of the judicial order, effective, retired or emeritus appointed by the House of Representatives, on the proposal of the Council of Ministers, after a consistent and joint opinion of the First President and the Attorney General near the Court of Cassation.
The president is chosen from among judicial officers with well-known competences in the field of privacy protection and the protection of personal data.
The monitoring committee is composed of an equal number of French-speaking members and Dutch-speaking members.
Members are appointed for a term of 6 years, renewable.
They are held by professional secrecy.
Within the limits of their powers, they do not receive instructions from anyone. They cannot be relieved of their burden on the occasion of the opinions they issue or the acts they perform to fulfill their function.
The Competent Disciplinary Authority shall inform the Supervisory Committee of any proceedings against one of its members and of the reasons for such proceedings. If the alleged facts relate to the member's activity within the supervisory committee, the member shall issue a notice that is attached to the disciplinary record.
Art. 23. When the president is prevented from performing his duties, he is replaced by the oldest member and, among the members who have the same seniority, by the oldest.
The King determines the amount of attendance tokens and travel expenses that may be granted to members.
Art. 24. § 1^er. The Oversight Committee shall issue notices of its own initiative or at the request of the Government, the Legislative Chambers, the Management Committee, the Minister of Justice or the Court of Cassation, other judicial bodies or the Supreme Council of Justice.
The monitoring committee monitors compliance with the privacy protection law of 8 December 1992 with respect to personal data processing at the Phenix data bank.
Without prejudice to any action before the courts, the Supervisory Committee examines signed and dated complaints and requests relating to the Phenix information system.
When they are admissible, the committee shall carry out any mediation mission that it considers useful. He's issuing an opinion on their merits.
The committee shall report annually to the Privacy Commission on the handling of complaints.
§ 2. By derogation from section 31bis, § 3, paragraph 3, last sentence of the Act of 8 December 1992 on the protection of privacy with respect to personal data processing, the examination of a file by the supervisory committee in the context of the powers conferred on it by or under this Act is suspended at the request of two members of the committee in order to submit it before the Privacy Commission.
The Commission has a period of one month from the date of receipt of the file to make a decision.
The Supervisory Committee then has a 15-day period from the date of receipt of the Board's notice to make a decision. The Commission's view is explicitly mentioned in the opinion of the Oversight Committee.
Where appropriate, the committee explicitly explains why the Board's view was not at all or only partially followed.
If the Commission does not decide within one month referred to in paragraph 2, the Oversight Committee shall proceed without delay.
If, within fifteen days of receiving the Board's notice, the Supervisory Committee did not make a decision, the Board's opinion is presumed to be consistent with that of the Commission.
In any event, and if this is a request for notice, the Commission shall promptly transmit to the author of the notice that the author renders.
§ 3. The Supervisory Committee shall denounce to the Public Prosecutor the offences of this Act which it is aware of.
Art. 25. The supervisory committee shall only deliberate validly if the majority of its members are present.
Art. 26. The monitoring committee has access to all information contained in Phenix in the performance of its functions.
User Committee
Art. 27. A Phenix User Committee is established to propose to the Management Committee any initiative to promote the use of Phenix.
It can create working groups within it to which it assigns specific tasks.
This committee is composed of:
- 2 representatives designated by the Court of Cassation, one from the seat, the other from the Prosecutor ' s Office;
- 2 representatives appointed by the first presidents of the appeal and work courses;
- 2 representatives designated by the College of Attorney Generals;
- 2 representatives appointed by the King ' s Attorneys ' Council;
- 2 representatives appointed by the Labour Audit Board;
- 2 representatives of the judiciary appointed by the Superior Council of Justice;
- 2 representatives designated by the Orde van Vlaamse balies;
- 2 representatives appointed by the Order of Francophone and German-speaking Bars;
- 2 representatives appointed by the National Chamber of Judicial Officers;
- 2 representatives designated by the Royal Federation of Belgian Notariat;
- 2 representatives of the staff of the prosecutor ' s and auditor ' s secretariats appointed by the Minister of Justice;
- 2 representatives of the Registry staff, appointed by the Minister of Justice.
Each representation of the Committee of Users, with the exception of those of the Order of French-speaking and German-speaking Bars and the Orde van Vlaamse Balies, is composed of a French-speaking member and a Dutch-speaking member.
The user committee takes into account the most balanced possible participation in functional, geographic and gender.
The user committee chooses a president and vice-president of a different language regime for a three-year term, renewable. One of them has the status of a lawyer, notary or judicial officer.
The King shall specify the procedure for the execution of this article.
CHAPTER III. - Miscellaneous provisions
Art. 28. The operating costs of management committees and users and their secretariats are borne by the SPF Justice budget.
They receive the support of the SPF Justice for the execution of their mission.
The operating costs of the monitoring committee and its secretariat are borne by the staffing of the Privacy Commission.
Art. 29. § 1^er. The Management Committee, before the Minister of Justice of a request for a proposal or notice relating to an enforcement order to be made under this Act, shall formulate the proposal or notice within thirty days of the application. If the management committee has not issued a proposal or notice at the end of this period, the King or Minister may act without delay the notice or proposal.
However, this period may be extended after 30 days. In this case, the management committee shall inform the Minister of Justice, before the expiry of the first period, of the reason for the new period. If the management committee has not issued a proposal or notice at the end of this second period, the King or Minister may act without delay the notice or proposal.
§ 2. Without prejudice to section 24, § 2, the Supervisory Committee, seized by the Minister of Justice of an application for notice of an enforcement order to be made under this Act, shall render its opinion within thirty days of the application. If the supervisory committee did not render its opinion at the end of this period, its opinion is considered positive.
However, this period may be extended after 30 days. In this case, the supervisory committee shall inform the Minister of Justice, before the expiry of the first period, of the reason for the new period. If the supervisory committee did not render its opinion at the end of this second period, its opinion is considered positive.
CHAPTER IV. - Final provision
Art. 30. The protocols and formats for communication and backup of the Phenix information system are based exclusively on open standards.
By standard means a technical specification, sufficient to develop a complete implementation, approved by an independent standardization body.
Open standard means a standard that is free of charge available on the internet and without legal restrictions as to its dissemination and use.
CHAPTER V. - Entry into force
Art. 31. The King sets out the effective date of sections 6 and 30 of this Act.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Nice on 10 August 2005.
ALBERT
By the King:
For the Minister of Justice, absent:
Minister of Defence,
A. FLAHAUT
Seal of the state seal:
For the Minister of Justice, absent:
Minister of Defence,
A. FLAHAUT
____
Notes
(1) Session 2004-2005.
House of Representatives documents: 51-1645.
No. 1: Bill.
Nos. 2 to 3: Amendments.
No. 4: Report.
No. 5: Text adopted by the Commission.
No. 6: Amendment.
No. 7: Supplementary report.
No. 8: Text adopted by the Commission.
No. 9: Text adopted in plenary and transmitted to the Senate.
Full report: 28 April 2005.
No. 10: Draft amended by the Senate.
No. 11: Report.
Full report: 13 July 2005.
Senate documents: 3-1163.
No. 1: Project referred to by the Senat.
No. 2: Amendments.
No. 3: Report.
No. 4: Text amended by the Commission.
No. 5: Text amended by the Senate and referred to the House of Commons
Annales of the Senate: June 2, 2005.