Rule of law

According to the participants, the overall situation for the rule of law was positive. The creation of a National Council of Justice had just been voted for at the time of the visit, which would be a supervisory body for judges, to which citizens would be able to complain about the justice system or judges (it entered into force on 1 July 2023). There was also a law pending about increasing legal aid to be financed by the government. Participants from the legal profession mentioned that they had good relations with the Ministry of Justice. They felt that the communication was good and they were heard. Whistle-blower legislation was also satisfactory. The bar association autoregulated and was in charge of disciplining lawyers for lack of respect for professional rules in order to protect the profession. There have been calls to reform the Law of 22 August 2003 establishing an Ombudsman to give more competences to the Ombudsman, such as filing amicus curiae in court. The Ombudsman’s mandate included receiving complaints about administrative decisions and monitoring prisons. Complaints could also concern return of refugees, placement of children and actions of private operators carrying out public work, for example with vulnerable persons. The major issue they faced was the lack of social housing, another challenge was mental health, which made annual administration and documentation requirements difficult to fulfil for social housing or unemployment benefits. One area of concern was highlighted by participants. Professional secrecy was never an issue before, but recently investigative magistrates more often accepted to seize documents from lawyers' offices. This was justified by a distinction between the lawyers’ role as an advisor or a defender, but there was no legal basis for this distinction, as secrecy applies to all activities. The Council Chamber validated this interpretation in the interest of finding the truth, but participants disagreed. Clients must be able to share everything with their lawyer, and their communication should not be used to help convict clients. To combat money laundering there was more and more pressure to target lawyers, but although the participants agreed with this aim, lawmakers, including at EU level, should respect the need for professional secrecy and let the bar association autoregulate on this point. There has always been a good relationship between judges and lawyers, but the atmosphere had tensed up slightly in some instances, notably due to a case at the time of writing where a lawyer had been accused of undue pressure of a judge and contempt of court. This was a cause for concern, as the lawyer had worked 50 years in the bar and was previously a judge himself. One participant believed that there could be instances where, to uncover sensitive information, a lawyer could be made a suspect instead of a witness to oblige the lawyer to abandon the client and remove the obligation to be bound by professional secrecy. The criminal code was not clear enough in this area. There were already sufficient safeguards in place to prevent lawyers from contributing to crimes, as lawyers were bound by a strict moral code, although, as with other kinds of professional secrecy, there existed the potential for abuse. However, tools to fight complex crime still had to be proportionate. The Ombudsman had also been affected by the duty to report. According to a participant, the Ombudsman had once been accused of helping somebody who was trying to avoid taxes. Participants felt that it was very important that the authorities should refrain from interfering in the independence of 7 lawyers and the Ombudsman and that ethical codes should apply instead. There were ongoing discussions with the authorities on how to resolve this legal ambiguity. Access to justice was facilitated by legal aid, which is not restricted to nationals and residents, commuters can also benefit from assistance. With regards to effectiveness of justice, there had been much improvement with regards to financial crime over the last 10 years. The financial criminal intelligence unit had grown and preventative efforts had been deployed, but sufficient means were still lacking to suppress such crime. At the prosecutor’s office, there was a team on economic crime, but the police did not have sufficient resources for investigation, including IT-based investigation, and judges were not specialised in financial crime. The bar association had been calling for a specialised court or chamber for financial crime.