Brussels (Brussels Morning) – The Federal Institute for Human Rights warns that the slowness of the Belgian justice system is a violation of human rights. Some proposed ‘solutions’, such as more GAS fines, also violate human rights.
The Van den Kerkhof case is the latest in a series of five convictions since 2002 of the Belgian state for excessively long legal proceedings. Van den Kerkhof won his case in September 2023 at the European Court of Human Rights, almost three years before he will finally be able to plead his case. The case began in 2015 and concerns the purchase of an apartment.
Why is Belgium Under Increased Council of Europe Supervision?
According to statistics from the College of Courts and Tribunals, the average case before the Court of Appeal in Brussels today takes 1,061 days. In Ghent, this is 536 days, in Antwerp 340.
“That is far too long,” says Martien Schotsmans, director of the Federal Institute for Human Rights, “because access to a fair trial within a reasonable time is a human right.” Due to the length of the procedures, Belgium has been placed under increased supervision by the Committee of Ministers of the Council of Europe since 2011. In the context of this supervision, the Firm published a new report in which it warns of the various ways in which the slow Belgian justice system violates human rights.
Are GAS Fines a Human Rights Violation in Belgium?
“You can’t solve one human rights violation with another human rights violation,” Schotsmans warns, “such as when you avoid overly lengthy procedures by excessively using municipal administrative sanctions (GAS fines, ed.) .” The Firm refers to the Brussels public prosecutor’s office, among others. In 2023, it announced that it would no longer prosecute certain cases due to a lack of staff. It would leave those crimes, such as petty shoplifting or assault and battery without aggravating circumstances, to local authorities, which could then punish them with GAS fines. “The separation of the executive and judicial powers is thus jeopardized. The officer who issues the fine becomes both an enforcer and a judge.”
Why Did Belgium Introduce Immediate Amicable Settlements?
The immediate amicable settlement – where one can pay an amount directly to the police officer who fines one – also worries the Firm. It was created during the coronavirus crisis, to collect coronavirus fines without the intervention of a judge. Since then, the system has been expanded to include drug possession for personal use, shoplifting and the possession and transport of certain prohibited weapons (such as brass knuckles or airsoft guns). The system was put forward as a “realistic solution” for lengthy procedures. “But the immediate collection has no legal basis and the rights of defence are not guaranteed,” says Schotsmans. Here too, the police officer takes on the role of judge.
Is Belgium’s Legal Backlog Impacting Human Rights?
The Firm requests that better statistics be kept about the backlogs in the justice system and that they be published. The existing figures are inaccurate. The compensation scheme for excessively long procedures will also be adjusted. “Today it can take so long to receive compensation that you would again be entitled to compensation for the excessively long procedure to obtain compensation.”
What Reforms Does the Federal Institute Propose for Belgium?
The only solution is to quickly hire more judges and clerks. “To save money in the judiciary, vacancies have not been published for all vacancies for magistrates for years. This has led to understaffing at various courts,” says Schotsmans. “You can’t solve that in one-two-three.”
In the past, the slowness of justice was often blamed on the magistrates themselves. Not all judges were said to work equally efficiently. And while some judges were swamped with work, others were said to underperform.
However, a workload measurement by consultancy firm Capgemini in 2023 put an end to that argument. The average judge worked 52.8 hours per week. At the courts of first instance and the courts of appeal, that average is 54 hours. Judges are therefore working overtime to prevent the backlog from increasing. To meet the shortage calculated at the time, 700 judges would have to be recruited.
