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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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belgiquelex.be - Carrefour Bank of Legislation

7 MAI 1999. - An Act to amend the Judicial Code with respect to the disciplinary regime applicable to members of the Judicial Order (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. Section 404 of the Judicial Code is supplemented by the following paragraph:
"Disciplinary sanctions under this chapter may also be imposed on those who neglect the tasks of their office and who thus affect the proper functioning of justice or trust in the institution. »
Art. 3. Section 405 of the same Code is replaced by the following provision:
"Art. 405. § 1er. Minor disciplinary penalties are:
warning;
simple reprimand;
Reprimand with gross treatment from 2 to 10 per cent;
Reprimand with gross treatment from 11 to 30%.
Any deduction is applied for up to two months.
§ 2. Major penalties are:
suspension of 15 days or more;
16 days to 6 months;
the withdrawal of the terms of reference of the head of the body or the deputy term;
resignation from office;
the dismissal from revocation.
The suspension from 16 days to 6 months may, on a reasoned basis, result in the withdrawal of the warrant.
Disciplinary suspension results in a loss of treatment of 50 per cent of gross treatment for its duration.
The resignation of office makes the judge lose. However, the right to pension is maintained.
The dismissal of judges from the Public Prosecutor ' s Office and the dismissal of judges result in the final termination of the duties and loss of the pension.
§ 3. Apart from the case of revocation, dismissal and resignment of office, the person concerned may not be deprived of the equivalent of the minimum of means of existence as laid down by the law of 7 August 1974 establishing the right to a minimum of means of existence.
§ 4. Withdrawal of the terms of reference of a body leader or an adjoining warrant, the person concerned may not be a candidate for a term of office of head of body or for a term of office for 3 years.
§ 5. Any final major disciplinary action against a magistrate is prohibited from being a candidate for the Supreme Council of Justice. »
Art. 4. In the same code, an article 405bis is inserted:
"Art. 405bis. When several disciplinary breaches are attributed to a magistrate, only one procedure is initiated and can only result in one disciplinary sanction.
If a new breach is imputed to the magistrate in the course of the disciplinary process, a new procedure is commenced without interrupting the procedure already initiated. »
Art. 5. In the same code, a new article 405ter is inserted:
"Art. 405ter. A magistrate who is subject to disciplinary or criminal proceedings or who is temporarily suspended may request the resignation of his or her office.
The acquiescence at the request of the interested party terminates the possible interim suspension and disciplinary proceedings.
Art. 6. Section 406 of the same code is replaced by the following provision:
"Art. 406. § 1er. If they are prosecuted for a crime or offence or in the case of a disciplinary action, the magistrates may, when the interest of the service so requires, be suspended from office by order during the period of prosecution and until the final decision.
The order is pronounced by the head of body for one month and may be extended from month to month until the final decision. It can result in a 20 per cent reduction in gross treatment.
§ 2. In the event that the provisional suspension is not followed by a disciplinary penalty, the amounts charged are refunded. »
Art. 7. In the same code, it is inserted in the second part, book II, title V, a chapter IIbis (new), as follows:
« CHAPTER IIbis. Disciplinary bodies
Art. 408bis. The head of the body is a disciplinary authority.
With regard to judges, the disciplinary authorities are:
- the first president of the Court of Cassation in respect of the members of the Court of Cassation, the first presidents of the courts of appeal and the first presidents of the courts of 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 the presidents of the courts of trade of the jurisdiction concerned;
- the first president of the labour court in respect of the members of the labour court, including social advisers and the presidents of the labour courts of the relevant jurisdiction;
- the president of the court of first instance in respect of the members of the court of first instance in which he exercises his functions and in respect of the judges of peace and police territorially competent in the district concerned;
- the President of the Commercial Court with respect to the members of the trade tribunal concerned, including consular judges;
- the president of the Labour Court in respect of the members of the relevant Labour Court, including social judges.
With regard to prosecutors, the disciplinary authorities are:
- the Attorney General at the Court of Cassation in respect of the General Counsel at the Court and the Attorney General at the Court of Appeal;
- the Attorney General in respect of the members of the Attorney General ' s Office and the Auditor General in which he performs his duties and the prosecutors of the King and the auditors of the work of the relevant court;
- the Attorney General responsible for the supervision and direction of the national magistrates in accordance with Article 144bis, § 3;
- the King's Prosecutor shall have regard to the members of the public prosecutor's office;
- the auditor of the work in respect of the dismemberment of the auditorship of the work in which he performs his duties.
Art 408ter. A National Disciplinary Council is established.
The National Discipline Council includes a French-speaking room and a Dutch-speaking room.
The Chambers of the Disciplinary Council are composed of 3 magistrates, 2 magistrates of the Public Prosecutor's Office and 2 external members of the judiciary.
Judges appointed to serve on the National Council of Disciplinary and their substitutes shall be elected by their General Assembly or their Body Assembly for a period of four years.
They are designated by lot to serve on the National Disciplinary Council for a period of four years. The mandates of the members of the National Council of Discipline are renewable by half every 2 years.
They must have, for at least 10 years, served as a judge of the Public Prosecutor ' s Office or a judge and have never been disciplined.
Members of the National Council of Disciplinary whose terms of reference expire continue to sit on the causes of debate.
If a member is unable to temporarily exercise his or her mandate or if there is a cause of incompatibility, he or she is replaced by his or her alternate. If he cannot complete his or her term, the designated alternate will replace him for the remaining period.
Each room has at least one representative of each of the following two categories:
- a magistrate of the Court of Cassation, or a court of appeal or a court of work or public prosecutor near these courts or a national magistrate;
- a magistrate selected in the courts of first instance, the courts of commerce, the labour courts or the public prosecutor in these courts, or a justice of the peace or a judge in the police court.
When the National Council of Disciplinary is seized of proceedings against a magistrate who has justified knowledge of the German language in accordance with the Act of 15 June 1935 on the use of languages in judicial matters and who requests a procedure in the German language, the magistrate having the least seniority is replaced by a magistrate appointed by drawing of lots among the magistrates before themselves justified of the knowledge of the German language in accordance with the law of 15 the law of the law
The external members and their substitutes are appointed by lot among lawyers with a professional experience of at least 15 years at the bar and never having incured a disciplinary penalty, elected by their order and among the professors 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 Discipline Council is renewable for half every 2 years.
The terms of the elections are fixed by the King.
The designation in the Discipline Council is incompatible with the exercise of a political mandate.
The Chambers of the National Council of Discipline are presided over by a magistrate elected to this effect.
Apart from the designated examining magistrate for each case, each member of the Council shall have a deliberative vote.
The decisions of the rooms are adopted by a two-thirds majority.
The Minister of Justice shall make available to the National Disciplinary Council the administrative personnel necessary for its operation.
The National Disciplinary Board shall hold its hearings at the Court of Cassation.
Art. 408quater. The Court of Cassation acts as a disciplinary body.
Art 408quinquies. Courts of appeal and courses of work act as disciplinary bodies. "
Art. 8. In the second part, Book II, Title V, of the same code, Chapter III comprising sections 409 to 416, is replaced by the following:
"Section 1st. - Provisions concerning judges of the seat with the exception of those of the Court of Cassation
Art. 409. The head of body is competent to hear complaints from any interested person regarding a breach of the obligations prescribed in section 404 by a member of his or her body.
The Public Prosecutor's Office may appeal to the head of a disciplinary procedure. The head of the body informs the public prosecutor of the suite reserved for him.
Art. 410. The head of body is facing disciplinary action on minor penalties.
In this case, the instruction is entrusted to the magistrate whom he designates or to the head of the higher body or to the magistrate whom the latter designates.
The examining magistrate has the same powers as the King's prosecutor in connection with criminal information outside the flagrante delicto.
After completion of the investigation, the examining magistrate transmits his report and the file to the head of the body.
Once the investigation is completed, the head of body fears to abandon the prosecution, impose a minor sentence or transmit the file to the National Disciplinary Council and the competent disciplinary authority.
Art. 411. § 1er. The National Disciplinary Council, which is seized by the competent head of body or the superior head of body, is subject to disciplinary proceedings concerning the penalty of the withdrawal of the terms of reference or the deputy head of body and provides advice for other major penalties.
The President of the National Disciplinary Council shall designate an instructor to carry out all relevant investigative acts.
After completion of the investigation, the examining magistrate transmits his report and the file to the President of the National Disciplinary Council.
The National Disciplinary Council has the option of abandoning disciplinary proceedings, imposing a minor sentence, withdrawing the terms of reference of the head of the body or the deputy warrant or transmitting the file with a reasoned opinion as to another major penalty to be applied, the Court of Cassation or a Chamber of an appeal or work other than that in which the person concerned exercises his or her functions.
§ 2. The National Disciplinary Council has heard appeals against minor penalties.
In this case, the National Disciplinary Council may waive the application of a penalty or apply a minor sentence.
Art. 412. § 1er. The first chambers of the appeals courts seized by the competent body chief or the superior body chief are subject to disciplinary proceedings against the members of the courts of first instance, the courts of commerce including the consular judges and the justices of peace and police of the kingdom with regard to major penalties.
The first chambers of the labour courts seized by the competent head of body or by the superior head of body are subject to 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 magistrate he designates and the four oldest magistrates in rank.
The president of the first chamber of the court of appeal or the court of work shall designate among his members a magistrate in charge of carrying out all relevant investigative acts.
After completion of the instruction, the examining magistrate shall forward his report and the file to the president of the first chamber of the court of appeal or the court of work.
Courts of appeal and work seized by the National Council of Discipline pursuant to Article 411 § 1er, may abandon prosecution, impose a minor sentence or a major sentence.
Courts of appeal and work may only sanction the person concerned with the resignation of office or dismissal by a two-thirds majority.
§ 2. Courts of appeal and work hear appeals against the sentencing of the withdrawal of the body's mandate or the deputy warrant.
In this case, appeals and work may waive the application of a penalty, impose a minor sentence or withdraw the terms of reference of the head of the body or the deputy warrant.
Art. 412bis. § 1er. The first chamber of the Court of Cassation seized by the competent head of body or by the superior head of body is subject to disciplinary proceedings against members of appeals and work on major penalties.
The president of the first Chamber of the Court of Cassation designates among his members a magistrate in charge of carrying out all relevant investigative acts.
After completion of the investigation, the examining magistrate transmits his report and the file 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 Article 411, § 1er, may abandon prosecution, impose a minor sentence or a major sentence.
The first Chamber of the Court of Cassation shall not sanction the person concerned with the resignation of office or dismissal of a two-thirds majority.
§ 2. The first Chamber of the Court of Cassation hears appeals against the withdrawal of the terms of reference of the head of the body or the deputy warrant.
In this case, the first Chamber of the Court of Cassation fears to waive the application of a sanction, impose a minor sentence or withdraw the mandate of the head of body or the deputy warrant.
Art 412ter. The chambers of the Court of Cassation hear appeals against the penalties imposed by courts of appeal and the work of the kingdom seized by the National Council of Discipline pursuant to Article 411, § 1er.
The Chambers of the Court of Cassation in other cases hear appeals against the penalties imposed by the first Chamber of that Court.
The chambers of the Court of Cassation may waive the application of a sanction, impose a minor sentence or a major sentence.
The Chambers of the Court of Cassation shall not sanction the person concerned with the resignation of office or dismissal until a two-thirds majority.
Art. 413. Alternate magistrates are, in this capacity, the same disciplinary authorities as the actual magistrates.
Section 2. - Provisions concerning magistrates of the Public Prosecutor's Office with the exception of public prosecutors
Court of Cassation
Art. 413 bis. The head of body is competent to hear complaints from any interested person regarding a breach of the obligations prescribed in section 404 by a member of his or her body.
Art. 413ter. The head of body is facing disciplinary action on minor penalties.
In this case, the instruction is entrusted to the magistrate whom he or she designates or to the head of the body of the higher degree or to that which the latter designates.
The examining magistrate has the same powers as the King's prosecutor in connection with criminal information outside the flagrante delicto.
After completion of the instruction the examining magistrate transmits his report and the file to the head of the body.
Once the investigation is completed, the head of the body may abandon the prosecution, impose a minor sentence or transmit the file to the National Discipline Council for advice and to the Minister of Justice for the application of a major sentence.
Art. 413quater. The National Council of Disciplinary hears appeals against minor penalties imposed by the heads of bodies.
The National Disciplinary Council may abandon disciplinary proceedings or impose a minor sentence.
Art. 413. The Minister of Justice seized by the head of body following the disciplinary information pursuant to section 413ter, paragraph 5, may, after the advice of the National Council of Discipline, abandon the prosecution, impose a minor penalty upon the King to take a major sentence.
The National Council of Discipline seized pursuant to Article 413ter, paragraph 5, shall give the Minister of Justice a reasoned opinion as to the possible penalty to be imposed.
Section 2bis. - Provisions concerning advisers and magistrates of the Public Prosecutor ' s Office to the Court of Cassation
Art. 414. The first president of the Court of Cassation has disciplinary proceedings with respect to members of the Court concerning minor penalties.
In this case the instruction is entrusted to the magistrate whom he designates.
The first Chamber of the Court of Cassation seized by the first President shall have disciplinary proceedings against the members of the Court concerning major penalties, except for the withdrawal of the term.
The President of the first Chamber of the Court of Cassation designates among his members a magistrate in charge of carrying out all relevant investigative acts.
After completion of the investigation, the examining magistrate transmits his report and the file to the president of the first chamber of the Court of Cassation.
The first Chamber of the Court of Cassation shall not sanction the person concerned with the resignation of office or revocation until a two-thirds majority.
The General Assembly of the Court of Cassation hears requests for the withdrawal of a warrant from the Court.
The first Chamber of the Court of Cassation hears appeals against the minor penalties imposed by the first president.
The first Chamber of the Court of Cassation may abandon disciplinary proceedings or impose a minor sentence.
The Chambers of the Court of Cassation hear appeals against the major penalties imposed by the first Chamber of the Court of Cassation.
They may abandon disciplinary proceedings or impose a minor sentence.
They may only sanction the person concerned with the resignation of office or revocation by a two-thirds majority.
The Attorney General near the Court of Cassation may apply to members of the Public Prosecutor's Office near the Court of Cassation Cour les peines de l'avertissement, la réprimande simple et la réprimande avec retenue de traitement, la suspension, le withdrawal du mandat adjoint du premier avocat général
The Attorney General at the Court of Cassation designates an instructing magistrate to carry out all relevant investigative acts.
After completion of the investigation, the examining magistrate transmits his report and the file to the head of the body.
The first Chamber of the Court of Cassation hears appeals against these penalties.
The Attorney General near the Court of Cassation may propose to the Minister of Justice the resignation of office or the revocation of members of the Public Prosecutor's Office to this Court. »
Art. 9. Section 418 of the same code is replaced by the following provision:
"Art. 418. Apart from criminal proceedings, disciplinary proceedings are instituted within 6 months of the knowledge of the facts by the disciplinary authority.
In the event of a criminal prosecution, the disciplinary action is brought within 6 months of the final decision. »
Art. 10. Section 419 of the same code is replaced by the following provision:
"Art. 419. No penalty may be imposed without the person concerned being heard or duly called.
The person concerned shall be summoned by registered letter containing the purpose of the summons, a statement of the facts charged, the place and time during which the record may be consulted, the place and the date of appearance. »
Art. 11. Section 420 of the same code is replaced by the following provision:
"Art 420. Disciplinary records are made available to the individual and the person who performs it at least 8 days before the appearance. A copy of the file can be obtained free of charge. »
Art. 12. Section 421 of the same code is replaced by the following provision:
"Art. 421. The individual is required to appear in person. He may be assisted by a lawyer, and in the event of a justified illness or incapacity, be represented by a lawyer.
The hearing shall be held in public hearing unless the interested party requests otherwise. »
Art. 13. Section 422 of the same code is replaced by the following provision:
"Art. 422. The reasoned decision is notified by registered letter in the month following the decision made by the competent disciplinary body, the individual and his or her head of body.
The notification is made either by the head of body who imposed the sanction, or by the court of appeal or the work that imposed a sanction, or by the court of cassation's office when the disciplinary council imposed a sanction. »
Art. 14. Section 423 of the same code is replaced by the following provision:
"Art 423. The remedies provided for in articles 411, § 2, 412, § 2, 412bis, § 2, 412ter, 413quater and 414 are exercised in the month of notification of the decision.
The right of appeal shall be open to the person concerned and, for the remedies provided for in articles 412, § 2, 412bis, § 2, 412ter and 414, paragraph 10, to his head of body. »
Art. 15. Section 424 of the same code is repealed.
Art. 16. Section 426 of the same code is repealed.
Art. 17. Section 427 of the same code is replaced by the following provision:
"Art. 427. Any disciplinary decision must be forwarded by the disciplinary authority that has rendered it to the Attorney General near the Court of Cassation, which reports to the Minister of Justice.
The Presidents of the Chambers of the National Council of Disciplinary shall establish with the Secretary General of the Department of Justice a database of jurisprudence in disciplinary matters where all decisions taken on the basis of sections 404 and 405 are centralized.
The data bank may be consulted upon written request by all judges and members of the National Disciplinary Council.
The Attorney General at the Court of Cassation reports in his annual report on disciplinary activity, taking into account the facts and penalties imposed during the past year. »
Art. 18. It is inserted in the second part, book II, title V of the same code a chapter V (new), written as follows:
« CHAPTER V. - Clearance, rehabilitation and revision
Art 427bis. Minor penalties are automatically erased after three years.
Art 427ter. Any interested person who is sanctioned by a major penalty other than the resignation of office, revocation or dismissal may apply for rehabilitation to the disciplinary body that has sanctioned him after a trial period of 6 years as of the decision or order.
The applicant will join his evaluation reports regarding his attitude during the trial period.
The disciplinary body validly seized shall rule after hearing or duly summoned the person concerned.
The reasoned decision of the disciplinary body must be taken within 6 months of the application.
This decision is not subject to appeal, the individual who may reintroduce a new application every six years.
Art 427quater. Any person who has been convicted of a disciplinary penalty may apply for a review to the disciplinary body, which has sanctioned it as long as it justifies a new element.
The applicant will include in his application a full report on the reasons and evidence that he holds to hope for a review of the decision or the decision.
The disciplinary body may declare the request of the person inadmissible for lack of reasons or evidence without prior hearing of the person concerned.
The disciplinary body that is validly seized, having founded the request of the interested party, shall decide after hearing or duly summoned the interested party.
The reasoned decision of the disciplinary body must be taken within 6 months of the application.
This decision is not subject to appeal, the interested party may reintroduce a new application every six years. »
Art. 19. The first renewal of the National Council of Discipline will take place after two years by drawing of lots.
Art. 20. This Act comes into force on the date fixed by the King, no later than the first day of the eighteenth month following the day on which it was published in the Belgian Monitor.
Promulgate this Act, order that it be put on the seal of the State and published in the Belgian Monitor.
Given in Brussels on 7 May 1999.
ALBERT
By the King:
Minister of Justice,
T. VAN PARYS
Seal of the state seal:
Minister of Justice,
T. VAN PARYS
____
Note
(1) Regular session 1998-1999.
House of Representatives.
Parliamentary documents. - Proposal by Mr. Landuyt 1666 No. 1. - Amendments, 1666, No. 2 and 4. - Report of Mr. Willems, 1666, No. 5. - Text adopted by the Commission, 1666, No. 6. - Text adopted in plenary and transmitted to the Senate, 1666, No. 7.
Annales parliamentarians. - Discussion and adoption. Sessions of March 31 and 1er April 1999.
1998-1999 session.
Senate.
Parliamentary documents. - Project transmitted by the House of Representatives, 1347, No. 1. - Report made by Mr. Desmet, 1347, No. 2. - Text corrected by the commission, 1347, No. 3. - Text adopted in plenary session, 1347, No. 4.
Annales parliamentarians. - Discussion and adoption. Sessions of 27 and 30 April 1999.
See also House of Representatives.
Bill by Mr. Giet, 1942, No. 1. - Report of Mr. Willems, 1942, No. 2.