An Act To Amend The Judicial Code As Regards The Disciplinary Regime Applicable To Members Of The Judiciary (1)

Original Language Title: Loi modifiant le Code judiciaire en ce qui concerne le régime disciplinaire applicable aux membres de l'Ordre judiciaire (1)

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Posted the: 1999-07-30 Numac: 1999009724 Department of JUSTICE may 7, 1999. -Act to amend the Judicial Code as regards the disciplinary regime applicable to members of the judiciary (1) ALBERT II, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: Article 1. This Act regulates a matter referred to in article 77 of the Constitution.
S.
2. article 404 of the Judicial Code is supplemented by the following subparagraph: "the disciplinary measures provided for in this chapter may also be inflicted on those who neglect the tasks of their workload and that affect so the proper functioning of justice or confidence in the institution.
» Art. 3. article 405 of the Code is replaced by the following provision: «art.» 405 § 1. Minor disciplinary punishments are: warning;
a simple reprimand;
the reprimand with restraint in gross salary of 2-10%;
the reprimand with restraint in gross salary of 11 to 30%.
Any withholding of treatment is applied two months maximum.
§ 2. The major penalties are: the suspension of 15 days or more;
the suspension of 16 days to 6 months;
the withdrawal of the mandate of head body or the Deputy mandate;
the resignation of office;
the dismissal to the revocation.
The suspension of 16 days to 6 months may, on reasoned decision, lead to withdrawal of the mandate.
For its duration, suspension by disciplinary action causes a loss of 50% of the gross salary treatment.
The resignation of office is losing the quality of magistrate. However, the right to retirement pension is maintained.
The revocation of the magistrates of the public prosecutor and removal of the judges cause termination of the functions and the loss of superannuation.
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3. Apart from the case of revocation, the dismissal and the resignation of office, the person concerned cannot be deprived of the equivalent of the minimum livelihood as laid down by the law of 7 August 1974 establishing the right to a minimum of livelihoods.
§ 4. The withdrawal of the mandate of head body or joint ad mandate has as its consequence that the person may be a candidate for a head term or for a term Assistant for 3 years.
§ 5. Any final major disciplinary sanction imposed against a magistrate takes the ban to stand the High Council of Justice. » Art. 4. in the same code, it is inserted an article 405bis, worded as follows: «art.» 405bis. when several disciplinary breaches are attributed to a magistrate, a single procedure is started his dependants and can lead to a single disciplinary sanction.
If a new breach is applied to the magistrate during the disciplinary procedure, a new procedure is started without that the proceedings already initiated is interrupted so far. » Art. 5. in the same code, it is inserted an article 405ter new, read as follows: «art.» 405ter. the magistrate is the subject of a disciplinary or criminal proceedings or who is suspended on an interim basis, may request the resignation of its function.
Acquiescence to the request of the person concerned puts end to the possible provisional suspension and disciplinary proceedings.
S.
6. article 406 of the code is replaced by the following provision: «art.» 406. § 1. When they are prosecuted for a felony or a misdemeanour or disciplinary prosecution, judges may, where the interests of the service so require, be suspended of their function by measurement of order during the duration of the proceedings and until the final decision.
The measure is pronounced by the head of body for one month and may be renewed from month to month until the final decision. It may result in a deduction of 20% of the gross salary.
§
2. Where the provisional suspension is not followed by a disciplinary punishment, the amounts deducted are refunded. » Art. 7. in the same code, it is inserted in the second part, book II, title V, chapter IIbis (new), as follows: "chapter IIbis. -Bodies disciplinary arts 408bis. the commanding officer is a disciplinary authority.
With respect to judges, disciplinary authorities are:-the first president of the Court of cassation against the members of the Court of cassation, the first presidents of the courts of appeal and the first presidents of the course of the work;
-the first President of the Court of appeal in respect of the members of the Court of appeal, the presidents of the courts of first instance and of the presidents of the courts of the jurisdiction;
-the first President of the Labour Court against the members of the Court of labour including social advisors and presidents of the courts of the work of the jurisdiction;
-the president of the Court of first instance against the members of the Court of first instance in which it carried out its functions as well as the judges of peace and territorially competent police with the district concerned;
-the president of the tribunal de commerce with respect to the members of the tribunal of commerce concerned including lay judges;
-the president of the Labour Court against the members of the tribunal's work concerned including social judges.
In relation to the magistrates of the public Ministry, the disciplinary authorities are:-the Attorney general at the Court of cassation with respect to attorneys about this Court and attorneys general near the courts of appeal;
-the Attorney general with respect to the members the public prosecutor and the general auditor's office in which it performs its duties and the attorneys of the King and listeners in the work of the jurisdiction;
-the Attorney general responsible for surveillance and the direction of the national judge in accordance with article 144bis, § 3;
-the King's Attorney has the respect of the members of the Prosecutor's office in which it exercises its functions;
-the auditor of the work in respect of members of the auditor's office's work in which it performs its duties.
Art 408ter. There is hereby established a national disciplinary board.
The national disciplinary board includes a French and a Dutch room.
The rooms of the disciplinary board are composed of 3 judges, 2 judges of the Crown and 2 external members to the judiciary.
Judges called to sit on the national Board of discipline and their alternates are elected by their General Assembly or the Assembly of body for a period of 4 years.
They are designated by drawing of lots to serve on the national Board of discipline for a period of four years. The mandates of the members of the national Council to discipline magistrates are renewable by half every 2 years.
They must have at least 10 years, exercise of the functions of the public prosecutor or judge magistrate and have never incurred a disciplinary sanction.
Members of the national disciplinary board whose mandate ends continue to sit in the causes that were the subject of debates.
If a member is unable to temporarily carry out its mandate, or if there is a cause of incompatibility, he is replaced by his Deputy. If it cannot complete its mandate, the designated substitute will replace it during the remaining period.
Each room has at least one representative of each of the following categories:-a magistrate of the Court of cassation, or of a Court of appeal or a Court of labour or the public prosecutor about these courses or a national magistrate;
-a magistrate chosen within the courts of first instance, courts of commerce, courts at work or the Crown near these courts, or a Justice of the peace or a judge at the tribunal de police.
When the national Council of discipline is entered against a magistrate who has justified the knowledge of the German language in accordance with the Act of 15 June 1935 on the use of languages in judicial matters and requesting to benefit from a procedure in the German language, the magistrate having the less than seniority is replaced by a magistrate designated by draw among the judges before themselves justified knowledge of German in accordance with the Act of 15 June 1935 on the use of languages in judicial matters.
The external members and their alternates are appointed by draw among the lawyers with professional experience of at least 15 years at the bar and not having never incur a disciplinary penalty, elected by their order and among teachers elected by the universities of the French community and the Flemish community, for a period of 4 years the mandate of the external members of the national Council of discipline is renewable for half every 2 years.
The modalities of the elections are laid down by the King.
The designation in the disciplinary board is incompatible with the exercise of a political mandate.
The rooms of the national disciplinary board shall be chaired by a magistrate elected for this purpose.
Apart from the examining magistrate designated for each case, each Member of the Board was voting.
The decisions of the boards shall be adopted by a majority of two-thirds.
The Minister of Justice makes available to the national disciplinary board the administrative staff required for its operation.
The national Disciplinary Board conduct hearings at the Court of cassation.
S. 408quater. the Cour de cassation intervenes as a disciplinary body.
Art 408quinquies. The courts of appeal and the course of the work involved as disciplinary bodies. ».
S. 8. in the second part, book II, title V, of the same

code, chapter III including articles 409-416, is replaced by the following: "Section 1st. -Provisions concerning the judges except those of the Court of cassation article
409. the commanding officer is competent to hear complaints from any interested party regarding a breach of the obligations prescribed in section 404 of the share of a member of his body.
The Crown may seize the head of body of a disciplinary procedure. The commanding officer informs the public prosecutor of the suite which it is reserved.
S. 410. the corps leader knows disciplinary proceedings concerning minor punishments.
In this case, the statement is entrusted to the magistrate designated by him or the head of the higher degree or magistrate designated by the latter.
The investigating judge has the same powers as the Prosecutor in a criminal information outside the flagrante delicto.
After closing of the statement, the examining magistrate transmits his report and the folder to the commanding officer.
When the statement is completed, the Chief of corps fear drop proceedings, a minor sentence or transmit the file to the national disciplinary board and disciplinary authority.
S. 411 § 1.
The national disciplinary board seized by the head of competent body or the head of the higher degree known disciplinary proceedings concerning the penalty of withdrawal of the mandate of head body or the Deputy mandate and gives a notice to the other major penalties.
The president of the national Council of discipline means a magistrate responsible for carrying out all useful investigative acts.
After closing of the statement the examining magistrate transmits his report and folder to the president of the national Council of discipline.
National discipline Council has the option to abandon disciplinary proceedings, to impose a minor punishment, withdrawing the mandate of Chief of corps or the Deputy mandate or transmit file accompanied by a reasoned opinion about another sentence major to apply to the Court of cassation or an appeal court rooms or work other than that in which the person concerned exercises its functions.
§ 2. The national disciplinary board hears appeals brought against minor penalties.
In this case, the national disciplinary board may waive apply a penalty or apply a minor punishment.
S. 412. § 1.
The first Chambers of courts of appeal entered by the competent commanding officer or the head of the higher degree know disciplinary proceedings against members of the courts of first instance, courts of commerce including lay judges and the judges of peace and police of the Kingdom in relation to major penalties.
The first rooms of the labour courts seized by the head of the competent body or by the head of the higher degree have disciplinary proceedings against members of the labour courts including social judges with regard to major penalties.
The first Chamber is composed of the first president or the magistrate designated by him and four older magistrates in a row.
President of the first Chamber of the Court of appeal or the Court of labour shall elect from among its members a magistrate responsible for carrying out all useful investigative acts.
After closing of the investigation, the examining magistrate shall transmit its report and the folder to the president of the first Chamber of the Court of appeal or the Court work.
The courts of appeal and the work seized by the national Council of discipline pursuant to section 411 § 1st, may abandon the proceedings, impose a minor or a major penalty.
The courts of appeal and labour can punish the person concerned's resignation from office or dismissal on the majority of two-thirds.
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2. The courts of appeal and labour know appeals against the sentence of the withdrawal of the mandate of head body or the Deputy mandate.
In this case, the courts of appeal and labour may waive apply a penalty, impose a minor punishment or withdraw the mandate of Chief of corps or mandate Assistant.
S. 412bis. § 1. The first Chamber of the Court of cassation by the head of the competent body or by the head of the higher degree known disciplinary proceedings against members of the courts of appeal and the work concerning major penalties.
The president of the first Chamber of the Court of Cassation shall elect from among its members a magistrate responsible for carrying out all useful investigative acts.
After closing of the investigation, the examining magistrate shall transmit its report and the folder to the president of the first Chamber of the Court of cassation.
The first Chamber of the Court of cassation seized by the national Council of discipline pursuant to section 411, § 1, may abandon the proceedings, impose a minor or a major penalty.
The first Chamber of the Court of cassation may punish the person concerned to the resignation of office or the removal by a majority of two-thirds.
§ 2. The first Chamber of the Court of cassation hears appeals brought against the withdrawal of the mandate of head body or the Deputy mandate.
In this case, the first Chamber of the Court of cassation fear giving up apply a penalty, impose a minor punishment or withdraw the mandate of the commanding officer or the Deputy mandate.
Art 412ter. Rooms met the Court of cassation are appeals against the sentences imposed by courts of appeal and the work of the Kingdom seized by the national Council of discipline in application of section 411, § 1.
Rooms met otherwise composed cassation court know appeals against sentences by the first Chamber of the Court.
Rooms met the Court of cassation may waive apply a penalty, impose a minor or a major penalty.
Rooms met the Court of cassation can only punish the person concerned's resignation from office or dismissal on the majority of two-thirds.
S. 413. alternate judges are, as such, the same disciplinary authorities that actual judges.
Section 2.
-Provisions concerning the magistrates of the public prosecutor's Office with the exception of the magistrates of the public prosecutor at the Court of cassation article 413bis. the commanding officer is competent to hear complaints from any interested party regarding a breach of the obligations prescribed in section 404 of the share of a member of his body.
S. 413ter. the Chief of corps knows disciplinary proceedings concerning minor punishments.
In this case, the statement is entrusted to the magistrate designated by him or the head of higher or that the latter means.
The investigating judge has the same powers as the Prosecutor in a criminal information outside the flagrante delicto.
After closing of the magistrate statement transmits his report and folder to the commanding officer.
When the statement is completed, the commanding officer may abandon prosecution, a minor sentence or transmit the file to the national Council of discipline for an opinion and the Minister of Justice for a major penalty.
S.
413quater. the national disciplinary board hears appeals brought against minor punishments inflicted by the chefs de corps.
The national disciplinary board may abandon disciplinary proceedings or a minor sentence.
S. 413quiquies. the Minister of Justice seized by the commanding officer following disciplinary information in application of article 413ter, paragraph 5 may after notice of the national disciplinary board, abandon the proceedings, a minor sentence to propose it to the King to take a major penalty.
The national disciplinary board seized pursuant to article 413ter, paragraph 5, makes a reasoned opinion to the Minister of Justice as to the possible major sentence.
Section 2A. -Provisions concerning advisors and the magistrates of the public prosecutor at the Court of cassation article 414. the first president of the Court of cassation has disciplinary proceedings against the members of this Court on minor punishments.
In this case the statement is entrusted to the magistrate designated by him.
The first Chamber of the Court of cassation by the first president knows disciplinary proceedings against the members of this Court concerning major penalties, except for the withdrawal of the mandate.
The president of the first Chamber of the Court of cassation shall among its members a magistrate responsible for carrying out all useful investigative acts.
After closing of the investigation, the examining magistrate shall transmit its report and the folder to the president of the first Chamber of the Court of cassation.
The first Chamber of the Court of cassation may punish the person concerned of the resignation of office or revocation on the majority of two-thirds.
The General Assembly of the Court of cassation has applications for withdrawal of a warrant exercised within this Court.
The first Chamber of the Court of cassation hears appeals brought against minor punishments imposed by the first president.
The first Chamber of the Court of cassation may abandon disciplinary proceedings or a minor sentence.
Rooms met the Court of cassation are appeals against the major punishments imposed by the first Chamber of the Court of cassation.
They can abandon disciplinary proceedings or a minor sentence.
They cannot

punish the person concerned of the resignation of office or revocation on the majority of two-thirds.
The Attorney general at the Court of cassation may apply to members of the public prosecutor at the court sentences of the warning, the simple reprimand and reprimand with withholding of treatment, the suspension, the withdrawal of the mandate of the Assistant of the first advocate general the Attorney general at the Court of cassation means a magistrate to carry out all acts of investigation useful.
After closing of the investigation, the examining magistrate passes its report and folder to the commanding officer.
The first Chamber of the Court of cassation hears appeals against these penalties.
The Attorney general at the Court of cassation may propose to the Minister of Justice office resignation or revocation of members of the public prosecutor about this Court.
» Art. 9. article 418 of the code is replaced by the following provision: «art.» 418. Apart from the cases where criminal proceedings have been initiated, the disciplinary procedure is commenced within 6 months of the knowledge of the facts by the disciplinary authority.
In the event of criminal prosecution, the disciplinary action is commenced within 6 months following the final decision.
» Art. 10. article 419 of the code is replaced by the following provision: «art.» 419. no penalty may be imposed unless the person concerned has been heard or duly summoned.
The person concerned shall be convened by registered letter containing the object of the convocation, a statement of the facts alleged, the place and the period during which the record may be consulted, instead and the date of appearance.
» Art. 11. article 420 of the code is replaced by the following provision: «Art 420. The disciplinary file is made available to the person concerned and the person who assists at least 8 days before the appearance. A copy of the record can be obtained for free. » Art.
12. article 421 of the code is replaced by the following provision: «art.» 421 L concerned is required to appear in person. It may be assisted by a lawyer, and in case of illness or recognized prevention justified, be represented by a lawyer.
The hearing took place in public hearing except contrary express request of the person concerned. » Art. 13. article 422 of the code is replaced by the following provision: «art.» 422. the reasoned decision shall be notified by registered letter within the month following the pronouncement of the decision by the competent disciplinary body, the person concerned and his commanding officer.
The notification is made either by the Chief body which imposed the punishment, either by the registry of the Court of appeal or work which imposed a punishment, by the registry of the Court of cassation when the Disciplinary Board imposed a penalty. » Art.
14. article 423 of the same code is replaced by the following provision: «Art 423. The remedies provided in articles 411, § 2, 412, § 2, § 2, 412ter, 413quater, 412bis and 414 shall be exercised within one month of the notification of the decision.
The right of appeal is open to the person concerned, and for the remedies provided for in articles 412, § 2, 412bis, § 2, 412ter and 414, paragraph 10, to his commanding officer. » Art. 15. article 424 of the code is repealed.
S.
16. article 426 of the code is repealed.
S. 17. article 427 of the code is replaced by the following provision: «art.» 427. any disciplinary decision must be forwarded by the disciplinary authority who made the Attorney general at the Court of cassation, which reports to the Minister of Justice.
The presidents of the Chambers of the national Council of discipline create the Secretary general of the Ministry of Justice a database of jurisprudence in disciplinary matters where are centralized in respect of anonymity, all decisions on basis of articles 404 and 405.
The data bank can be accessed upon written request by all magistrates and members of the national Council of discipline.
The Attorney general at the Court of cassation reported in its annual report of disciplinary activity, taking the facts and sanctions during the past year. » Art. 18. it is inserted in the second part, book II, title V of the same code a (new) chapter V, reads as follows: «Chapter v - erasing, rehabilitation and review Art 427bis.» Minor punishments are an automatic deletion after three years.
Art 427ter. Any person sanctioned by one major penalty other than the resignation of office, revocation or dismissal may address a reasoned request for rehabilitation the disciplinary body that sanctioned it after a period of 6 years from the date of the decision or agreement termination test.
The person concerned will join its assessment reports concerning his attitude during the test period.
The disciplinary body validly before it will decide after having heard or duly summoned the applicant.
The reasoned decision of the disciplinary body must take place within 6 months of the application.
This decision is not subject to appeal, the person concerned may reintroduce a new request every six years.
Art 427quater.
Any person punished by a disciplinary penalty may apply for review to the disciplinary body that sanctioned it provided that it justifies a new element.
The person joining its application a complete report about the motivations and evidence that it has to expect a revision of the decision or the judgment reached.
The disciplinary body may declare the application inadmissible for lack of reasons or evidence without a prior hearing of the party concerned.
The disciplinary body validly seized, believing founded the request of the person concerned will decide after having heard or duly summoned the applicant.
The reasoned decision of the disciplinary body must take place within 6 months of the application.
This decision is not subject to appeal, I' interested can reintroduce a new application every six years. » Art. 19. the first renewal of the national disciplinary board will be carried out after two years by drawing of lots.
S. 20. this Act comes into force on the date fixed by the King, no later than the first day of the eighteenth month following that during which it has been published in the Moniteur belge.
Promulgate this Act, order that it be under the seal of the State and published in the Moniteur belge.
Given in Brussels on 7 May 1999.
ALBERT by the King: the Minister of Justice, T. VAN PARYS sealed with the seal of the State: the Minister of Justice, T. VAN PARYS _ Note (1) 1998-1999 regular Session.
House of representatives.
Parliamentary papers. -Law of Mr. Landuyt 1666 No.1 proposal. -Amendments, 1666, Nos. 2 and 4. -Report by Mr Waller, 1666, no. 5. -Text adopted by the commission, 1666, no. 6. -Text adopted in plenary meeting and transmitted to the Senate, 1666, no. 7.
Parliamentary Annals. -Discussion and adoption. Meetings on 31 March and 1 April 1999.
Session of 1998-1999.
Senate.
Parliamentary papers. -Draft transmitted by the Chamber of representatives, 1347, no. 1. -Report by M.
DeSmet, 1347, no. 2. -Corrected text by the commission, 1347, no. 3. -Text adopted in plenary session, 1347, no. 4.
Parliamentary Annals. -Discussion and adoption. Meetings on 27 and 30 April 1999.
See also House of representatives.
Proposed law Mr. Giet, 1942, no. 1. -M report.
Willems, 1942, no. 2.

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