Legal protection
These lines of research encompass two sub-lines of research: a) legal protection of the weaker legal parties; b) proper administration of justice (right to a fair trial; limitation periods; legal remedies; evidence; cross-border proceedings and extra-judicial means of dispute settlement). The following overview presents the research questions addressed with regard to each of these stages.
a) Legal protection of the weaker legal parties
First, it is important to delineate the concept of “weak legal party” and to develop a number of criteria in this regard. Examples could include imbalance in the contractual or extra-contractual relationship between two or more persons due to disparities in the financial-economic field, the field of knowledge and/or experience or other fields, as well as at the human and emotional level (e.g. the crime victim in relation to the offender). Furthermore, it will be necessary to define the boundaries with the substantive legal protection.
The central research question concerns the domains in which protection for the weaker legal party exist (or should exist) throughout the entire process (from the moment the case is brought before the court up to the mandatory enforcement). Examples could include primary and secondary legal aid and the regulations concerning legal costs, rules concerning material and territorial jurisdiction, the right of action granted to consumer organisations and similar associations (e.g. trade unions), class actions, injunctions as laid down in the Belgian Code of Economic Law, the anti-discrimination legislation and other consumer-protection legislation, procedurally unlawful clauses in the Code of Economic Law and other consumer-protection legislation, restrictions concerning seizure, collective debt settlements and the European order for payment.
In addition, forms of legal protection and enforcement apart from legal proceedings can be studied, for instance by experimenting with forms of enforcement by employees’ and employers’ organisations (whether or not directly). In this respect the question arises as to the relationship with enforcement by the authorities. Do social inspection agencies play an important part etc.? In addition, the absence of legal protection will be assessed in terms of higher standards.
Within the framework of criminal (procedural) law, it is important to examine the roles assigned to victims in criminal conflict procedures. This raises the question of whether the practice of granting rights to victims throughout the criminal proceedings could be detrimental to the values that have been traditionally associated with a criminal justice system based on public law (e.g. independence and impartiality). Furthermore, it will be necessary to investigate where the legal and economic balance between public intervention and private involvement should lie in criminal conflict procedures.
b) Proper administration of justice
b.1 Right to a fair trial
The right of defence as an essential guarantee for a fair trial does not always have the same scope. This is, for instance the case for the contours of the right to remain silent. First of all, the boundaries of the right to remain silent in criminal, disciplinary and civil procedures will have to be examined. Furthermore, it will be necessary to find out to what extent a uniform right to remain silent in these procedures could be achieved.
Another research topic concerns the research into the ways in which the right to a fair trial is guaranteed as well as the research of the balance between the necessary formalism on the one hand and an efficient and fair procedure on the other. A separate research question in this respect concerns the best way to arrange criminal procedures in order to meet a number of quality requirements (such as fairness and a reasonable duration of the trial), as well as to optimise the search for the truth and the trial of suspects. Given that the Criminal Code dates from 1808 and that a more contemporary code is an urgent necessity, particular attention will be given to projects or research questions that could lead to the modernisation of criminal procedural law.
Finally, it should be mentioned that Article 6 ECHR is increasingly important in the broad field of social law.
b.2 Limitation periods
i. The liberating statute of limitations in private law and social security law
The Statute of Limitations of 10 June 1998 reduced the ordinary limitation period for personal claims from thirty years to ten years (Art. 2262bis, § 1 of the Civil Code). However, a large number of other special limitation periods continue to exist, ranging from six months ( Art. 2271 of the Civil Code) to 30 years ( Art. 2262 and Art. 2277ter of the Civil Code). In social security law too – where quite often the limitations of ordinary law are renounced – the rules on limitation periods still use the various laws governing the diverse social security sectors as a source. This leads to a needlessly complicated legal system and to legal uncertainty. The initial research question in this respect is whether it is appropriate for the legislature to impose drastic restrictions on the number of limitation periods and, if so, how: a general limitation period combined with only a few special, shorter periods, or a single, relatively short limitation period (as found in some European doctrinal studies)?
The second research question is whether the limitation period should be in effect or suspended as long as the creditor is not informed and in all fairness could not have been informed of the identity of the debtor or of the basis of the claim. The principle of Contra non valentem agere non currit praescriptio does not constitute a general principle of law and is accepted by the Court of Cassation only as a legal impediment. Such a ruling, however, cannot withstand the test of Art. 6 ECHR. To what extent should the scope of this principle be revised? In broader terms, this raises the question of whether the entire regime of the grounds for suspension should not be revised.
A final concern is that, in private law, the interruption of the limitation period, if it took place within the original limitation period, can be repeated later based on new grounds for interruption, as a result of which the limitation period is extended by an identical term. This certainly applies to social security law where most of the sectors complement the ordinary manners of interruption with simplified manners of interruption (inter alia by a registered letter). This raises the question whether this is justified and whether restrictions should be applied to the duration of the interruption, analogous to Art. 22, first paragraph Prior Title of the Code of Criminal Procedure or to foreign proposals seeking to restrict the limitation period to a specific term (e.g. ten years). In this respect it would be advisable to take into account the fact that in certain branches of law, such as employment (contract) law the limitation period is often disregarded by legal concepts, such as waiving of rights and forfeiture of rights.
ii. Limitation of persecution
Due to an accumulation of legislative changes the calculation of the limitation period for criminal procedures has become increasingly complex in recent years,. One research topic that will receive considerable attention concerns the statutes of limitation in Belgium and abroad. A separate research topic that is related to the limitation of criminal procedures involves the right to trial within a reasonable period in criminal cases. In addition to examining the implementation thereof, such research will also consider the question of which sanctions should ideally be imposed for exceeding the reasonable period, and which preventive model should be applied in order to keep the duration of the criminal proceedings within reasonable limits.
b.3. Legal remedies
The broad possibility to put legal remedies into operation against judicial decisions entails high costs for society. Therefore, the question arises whether legal remedies should not be dealt with more economically.
The advisability and the usefulness of the legal remedies (among which extraordinary objection, higher appeal and cassation), the advisability of a restriction of the access to these legal remedies and the manner in which this should take place will be examined. Furthermore, research will be done with regard to the ways in which the legal remedies should be organised in order to contribute to a smooth completion of the proceedings.
This subject matter will be approached in an interdisciplinary way, i.e. from the perspective of judicial law, social law and criminal law.
b.4. Cross-border procedures
The primary focus of the research will be on cross-border procedures, both in civil law and criminal law. Particularly within the European Union, these types of cases are becoming increasingly specified, flexible and more and more applied in practice. The objective will be to critically examine existing, new and future legal frameworks for various cross-border procedures, ranging from procedures in the context of the right to legal aid in criminal cases to civil procedures with a cross-border character, and to place them within the changing European and international legal order. Central questions in this regard include the following: how necessary are such (new) procedures ? How effective are they? Is a uniform framework being developed, or rather ad hoc solutions? Which safeguards are offered, and does the theory withstand the test of practice? What are the limits of cooperation and what are the limits of sovereignty?
Secondly, the research will also consider the primary and secondary influence of international and European rules of law on purely national procedures. The following questions come to mind : will Belgian legislators also be required to amend their internal procedures according to an international or European instrument? Are there lessons to be learned from existing or new transnational procedures? Is there a need for uniform procedures at the European level, and is there room for such procedures?
In the third place, a close look will be taken at the supranational framework, i.e. cases in which a supranational entity, either at the international or the European level, takes care of the proceedings.
Come to mind the International Criminal Court and the other courts aimed at combating the so-called core crimes as well as the establishment of a European Public Prosecutor whose first objective is to detect and prosecute (financial) offences against the European Union. In this respect the following questions could be asked: are there specific international and European procedures and how much do they differ from national proceedings? Can lessons be drawn from this for the national level? What is the added value – and what are the problems – of supranational procedures, inter alia, given the issues of sovereignty, jurisdiction and judicial authority? Are these “new” procedures uniform as regards legal protection or do they vary, and can this be justified?
b.5. Evidence
Rules of evidence are an instrument for finding the truth in dispute. That search for the truth is not unprejudiced. The legal basis of the dispute determines the framework within which the process of establishing the truth takes place, and procedural law may restrict the court in its search for the truth. The court must examine whether the documents presented constitute lawful evidence and assess and respect their evidential value. These restrictions create tension between the legally established truth and the process of establishing the truth. The central question in this regard is whether the rules regarding evidence impose too many restrictions or whether they are necessary for a proper and efficient administration of justice. This tension is clearly reflected in the doctrine of lawful evidence and the so-called Antigoon judgment of the Court of Cassation, which since a ruling of 10 March 2008 has also been applied in civil cases. In recent years, evidence in criminal cases has been facing increasing pressure. The erosion of general evidence theories and the increase of practical complications clearly demonstrate the inadequacy of the current legislation.
The second research question concerns the judge and the parties with regard to the evidence. Traditionally a distinction is made between the collection of evidence and the assessment of evidence. However, it is not possible to establish a correct division of tasks on the basis of this distinction. Indeed, both the judge and the parties play an important role in the collection of evidence as well as in the assessment of evidence. The tasks of the judge and the parties require further research, including from the perspective of forensic psychology.
Although the rules regarding the burden of proof appear to be simple, the actual practice makes it clear that their application is not. Therefore, further investigation is needed with regard to the coherent and clear interpretation of the rules concerning the burden of proof.
The third research question concerns the importance of presumptive evidence. In certain branches of law such as labour law and social security law the legal technique of - refutable and irrefutable – presumption is often used to relieve the burden of proof on the part of the employee, the socially insured person or the semi-governmental institution. The question is whether this leads to a satisfactory result since the presumptions in social law are often subject to complex and numerous conditions of application, conditions which have to be proved by the party invoking the presumption. The difference between presumptions and other legislative techniques, such as equalisation, which also aim at the extension of social protection is also an object of research.
The fourth research question concerns the effect of the public policy character in terms of evidence. Most of the provisions of social security law are public policy provisions with the result that evidence through judicial or extra-judicial confessions is excluded. It will have to be examined if or to what extent the labour tribunals and courts acknowledge this consequence or instead rather seek solutions to make the necessary differentiations.
b.6. Extra-judicial forms of dispute settlement
Nowadays proper administration of justice does not only imply access to the courts but also extra-judicial settlement of disputes (negotiating, mediation, conciliation, arbitration, binding settlement by third parties, ODR,…). The letter A in Alternative Dispute Resolution is no longer appropriate unless it refers to Appropriate Dispute Resolution. There is an increasing realisation that proper interaction between the classic judicial dispute settlement and other forms of dispute resolution is necessary. Both the European and the Belgian legislature are developing a number of initiatives to promote extra-judicial dispute settlement. This evolution raises a number of questions. How can ADR contribute to a high-quality administration of justice? To what extent can an extra-judicial dispute settlement process be made obligatory? How and to what extent should the government regulate/facilitate extra-judicial dispute settlements? What is the role of the courts in this evolution, does the judge’s task evolve in the direction of someone who resolves disputes (e.g. mediation by magistrates) or should he continue to be someone who tries to settle disputes. To what extent, in more general terms, is the use of a magistrate advisable or necessary, in particular as a safeguard against arbitrariness? And what about the enforceability of extra-judicial decisions and agreements (including at PIL level)?