MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1501/H46-6

13 June 2024

1501st meeting, 11-13 June 2024 (DH) Human rights   H46-6 Bell group v. Belgium (Application No. 44826/05) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)376, DH-DD(2023)1211, CM/Del/Dec(2022)1443/H46-7

Application	Case	Judgment of	Final on	Indicator for the classification
44826/05	BELL	04/11/2008	06/04/2009	Complex problem
29119/13	ABBOUD	02/07/2019	04/11/2019
69310/13	VANDROEMME	09/04/2020	09/04/2020
49812/09	VEGOTEX INTERNATIONAL S.A.	03/11/2022	Grand Chamber
13630/19	VAN DEN KERKHOF	05/09/2023	05/12/2023

Case description

These cases concern the excessive length of civil (in Brussels, from 2002 to the present) and criminal proceedings (of the investigation phase in particular,^[1] in Brussels and Flanders, between 2003 and 2016) (violations of Article 6 § 1).[2]

In the Van den Kerkhof case (civil proceedings commenced at the end of 2015), the applicant was informed in 2018 by the Brussels Court of Appeal^[3] that his case was on a waiting list and that he could not be promised a hearing before March 2026. He complained to the High Council of Justice (HCJ), which concluded that there had been a dysfunction of the judicial system. Under Article 46, the Court noted that the problems of excessive length of proceedings in the Brussels judicial district are of a structural nature (§ 105) and that the State must, therefore, take the necessary measures (§ 106: legislative, organisational, budgetary or other, including necessarily the involvement of all justice actors) in order to guarantee therein the right to be judged within a reasonable time (§ 107).

Status of execution

On 2 April 2024, a new action plan was transmitted (DH-DD(2024)376), following a communication from the authorities of 9 October 2023, at the Committee’s request (DH-DD(2023)1211).

Individual measures: It is recalled that no measure is required in the Bell and Abboud cases. In the case of Vandroemme, the domestic proceedings are closed, but just satisfaction (8,000 euros for non-pecuniary damage and costs and expenses combined) is still due because of a preventive attachment, linked to a pending tax dispute with the applicant. In contrast, just satisfaction payments have been made in the cases of Vegotex International S.A. and Van Den Kherkof, and the domestic proceedings have been completed in the first case but not yet in the second (judgment of 7 December 2023 by the Brussels first instance tribunal but with one issue still to be investigated).

General measures

1)     Civil and criminal statistics and efforts to develop and improve statistics

Civil cases: The number of new cases at first instance decreased between 2015 (39,334) and 2023 (27,541). Despite a lower number of closures (38,710 in 2015; 24,257 in 2023), the “clearance rate” (rate of change in the stock of pending cases) has remained positive (114.91% in 2015; 101.24% in 2021; 113.45% in 2023), due to the addition of “ex officio omitted” cases (i.e., at a standstill for more than 18 months, since 31 March 2023)[4] to those closed. The backlog is also being reduced in the family tribunals (clearance rate of 105.85% in 2021; 110.5% in 2023) and the courts of appeal (105.74% in 2021; 100.96% in 2023).

Criminal cases: The average duration of economic and financial judicial investigations decreased between 2017 (1,403 days) and 2021 (1,150 days). The duration of other cases also decreased from 2017 (528 days) to 2021 (440 days). These statistics are not anymore established since 2022. In contrast to 2020, the “clearance rate” of criminal cases was positive in 2021 (613,026 entries; 621,717 exits). In 2022, the number of entries (fewer Covid-19-related offences but an increase in other cases) fell, as did the number of closures. In ten years, there has been an 18% decrease in exits (despite a high increase in transactions and probations) and a 32% increase in criminal cases followed up by prosecution services.

Statistical efforts: Since 2022, the College of Courts and Tribunals (CCT) has improved statistics relating to processing times of cases and the stock of pending cases (major clean-up by verification by field actors and closure of dormant cases, with the exception of the courts of appeal). Dashboards have been created to help entities check the data (pending cases, new cases, closed cases, and durations). The CCT team will be reinforced to help them with their uniform encoding and the development of new indicators is planned. As a result, the statistics should be more objective and reliable by 2024 and, therefore, communicable. From the first half of 2024, the CCT will publish the average length of proceedings for all courts and tribunals (except the Court of Cassation), with the exception of youth and enforcement of sentences tribunals (new application in progress) and courts of appeal ruling in criminal matters (calculation method under review).

2)     Project to map the judicial backlog and processing times

The CCT is in the process of mapping the judicial backlog and processing times in the country's 49 entities (with verification by field actors) in order to objectively identify those in difficulty or at risk. Reports have already been produced for the courts of appeal and the labour courts and tribunals, and the next reports will concern the first instance, company and police tribunals and the local tribunals. An analysis of the causes should follow, and the CCT would like to detail each phase’s deadlines to identify the role of each player.

3)     Compensatory remedy concerning excessive length of proceedings

The authorities recall the impossibility of providing complete statistics, as civil actions for compensation due to the excessive length of civil or criminal proceedings are not recorded specifically but under a general code. They do, however, provide 14 decisions (between 2010 and 2023, 13 of which relate to Brussels) to illustrate that this remedy allows for the attainment of appropriate and sufficient redress within a reasonable time. The authorities also stress that a Law of 1 February 2024 could strengthen this remedy because it clarifies the concepts of fault, damage and causal link and lists the criteria for determining fault, including the principles of good administration and good organisation.[5] Finally, as regards criminal proceedings, the statute of limitations can no longer be applied at the judgment stage (Law of 27 March 2024), except in the event of a serious breach of the reasonable time requirement and where  judicial reasoning is given.

1)     Other measures aimed at reducing the judicial backlog and the length of proceedings

Alternatives to dispute resolution: Their importance is reiterated (Federal Mediation Commission with an accreditation system and conciliation chambers in family tribunals and pilot projects in Brussels since 2020 in company and labour tribunals and Court of Appeal).

The Law of 19 December 2023 provides for such chambers (optional until 1 September 2025) in civil, social and company tribunals and courts. This type of measure should help to alleviate the backlog in courts of appeal, especially in Brussels.

Digitisation of the justice system: It was pursued by several initiatives. A Law of 16 October 2022 created a national register of decisions. A Law of 27 March 2024 created a framework for the digital criminal file and a central register of criminal files, clarifies the rules on electronic submissions and provides a framework for replacing traditional notifications. A framework for using video-conferencing in civil and criminal matters will soon be adopted to manage hearings better (for details of all projects to digitise the justice system, see DH-DD(2024)376). Lastly, according to a general policy note of 31 October 2023, the budget for this digitisation has been increased from 40 million to 80 million per year, in addition to 115 million from European funds.

Public Prosecutor's Office: It also aims to reduce the length of proceedings[6] through its digitisation, a more efficient policy and more alternatives to conventional prosecution.[7]

Measuring the workload: This long-standing project aims to better distribute human and financial resources between courts and tribunals. In 2023, the working time of judges and clerks was measured. On 20 February 2024, a report was presented to the CCT general assembly, according to which, ideally, without additional working hours, 43% more judges would be needed to process all incoming cases as soon as possible. This report should notably allow to objectively assess the needs of the Brussels Court of Appeal.

2)     Particular situation of the Brussels Court of Appeal

The authorities state that it is a specific court, with jurisdiction for federal and several federated entities, in addition to being a Court of Appeal in a European and international capital. Its chairperson has drawn up a management plan and identified staffing needs. Numerous measures have been taken to improve quality and productivity: internal restructuring, better organisation of work, improved well-being, and specific measures for the civil (encoding, more single-adviser hearings, etc.), criminal (new chambers, increase in hearings, etc.) and family/youth (reorganisation) sections. The CCT has introduced a dashboard (currently being tested) to help the Court of Appeal better understand and monitor its activities. In June 2022, the High Council of Justice (HCJ) submitted an audit report calling for a remedial plan.[8] All of the recommendations which were addressed to the Brussels Court of Appeal (especially in relation to management) would have already been implemented, within the limits of its human and material resources.

3)     Developments in the budget and members of judicial staff (courts and public prosecutor's office)

There has been a growing increase in the budget (634 million in 2014, 694 million in 2019, 759 million in 2022, 827 million in 2023 and 897 million in 2024) and the number of staff (10,560 in 2019, 10,781 in 2020, 11,085 in 2021 and 11,267 in 2023)[9]. Several measures are contributing to this (temporary staff at Brussels Court of Appeal which is henceforth integrated into its permanent staff by a Law of 15 Mei 2025 and more flexible bilingualism, new posts at the Federal Public Prosecutor's Office and the Court of Cassation, easier recruitment of experienced magistrates and more deputies), although not all the legal staffing frameworks have been fulfilled.[10] Since 2020, there has been an increase in the number of candidate judges and successful candidates, as well as efforts to speed up the entry and recruitment of judicial staff. Finally, a Law of 12 Mei 2024 (entry into force in January 2025) upgrades the status of magistrates and there are plans to do the same with the position of judicial experts.

New communications 9.2.

The Federal Institute for the Protection and Promotion of Human Rights (FIHR), in its communication
(DH-DD(2024)566), stresses the need for complete statistics (by entity) on the average length of family and civil proceedings at first instance and on the “clearance rate” of tribunals in civil matters.

Concerning courts of appeal, the latter would be 100.96% in 2023, 91% in Antwerp, 98.85% in Brussels and 92.96% in Liège.[11] Its flows also from the CCT figures on the stock of cases at the end of 2023, by court of appeal, that their number is much higher in Brussels (11,485) and that the aforementioned rate of 98.85% will be insufficient to absorb it. Moreover, the FIHR has recalculated the “clearance rate” of family tribunals (85.30% in 2022 and 89.77% in 2023: almost 20% lower than the authorities' figures), with the same method as for the other courts and tribunals. It also provides CCT figures on the average duration of civil cases per court of appeal (in 2023, 1,061 days in Brussels, 536 in Ghent, 477 in Mons, 417 in Liège and 340 in Antwerp). There is no change for Brussels (1,046 days in 2021 and 1,036 in 2022).[12] Finally, the FIHR also stresses the need for updated statistics on the length of criminal judicial investigations.

According to the FIHR, the impact of the reform of the Civil Code (cited above Law of 1 February 2024) on appeals for damages will be difficult to assess, in the absence of complete statistics on appeals, their processing times and results. Independently of the effects of the future transfer of management autonomy to the judiciary (which should be accompanied by the necessary resources) and of alternative dispute resolution methods, the FIHR notes a structural need to allocate more resources to the judiciary (cf. 43% more judges and 19% more clerks, according to the measuring of the workload) and to make the profession more attractive. In addition, as regards the Brussels Court of Appeal, a structural and adapted solution (significant increase in staff) is required to deal with its historical backlog and incoming cases. FIHR also notes a structural lack of clerks at the Brussels family tribunal. Lastly, it recalls that the granting of resources to the courts and tribunals should not be conditional on results.

According to the French and German-speaking Bar Association (DH-DD(2024)508), the first measure to be adopted is to quickly fill all the posts of judges and members of the public prosecutor's office in all districts and to anticipate vacancies as far as possible. Then, the number of staff in certain districts and courts and tribunals must be increased (mobility[13] in particular), in line with the recommendations of the HCJ. Finally, the situation of the family tribunal is deemed to be particularly critical in Brussels, as well as on the appeal level. More staff and a larger budget are urgently needed to develop the above-cited conciliation chambers.

Analysis by the Secretariat

Individual measures: In 2022, the Committee noted that the only measure still required was the payment of just satisfaction to the applicant Vandroemme, currently frozen due to a preventive attachment (the deadline of payment expired on 9 July 2020), and invited the authorities to reconsider their position in light of the principle of exemption from the attachment of the just satisfaction, set out in the case-law of the Court and followed in the general practice of the Committee.[14] However, there have been no developments, as the tax dispute between the regional authorities and the applicant is still pending. In addition, the domestic judicial proceedings in the Van Den Kerkhof case, which began in 2015, have not yet been completed.

In view of these elements, the Committee may wish to invite the authorities to pay the just satisfaction and default interest due to the applicant Vandroemme without further delay and to ensure that the domestic proceedings in the Van Den Kerkhof case are finalised as soon as possible. In addition, the Committee may wish to close its monitoring of the Abboud and Vegotex International S.A. cases on the basis of the adoption of the required individual measures, without prejudice to its examination of the general measures.

General measures: At the outset, the Committee could recall that the excessive length of proceedings and the judicial backlog in Belgium, in particular in Brussels, are long-standing problems,[15] which can pose a serious threat to the respect of the rule of law and the access to justice. It might, therefore, wish to welcome the consultations that took place in Brussels in March 2023 on this group of cases between the Director of Human Rights and the Department for the Execution of Judgments and the authorities, including the Chairperson of the CCT and representatives of the Minister of Justice, the College of Prosecutors-General and the administration. The Committee may also wish to invite the authorities, until its next examination in 2025, to pursue their dialogue with the Secretariat, in particular concerning the Brussels Court of Appeal.

As indicated by the FIHR, in conclusion to its communication, progress has undeniably been made, but much remains to be done to bring the length of proceedings under control. Thus, in 2023, the European Commission mentioned that: “despite important investments and initiatives,[16] structural resource deficiencies persist”;[17] “whilst recognising the considerable efforts (...), the justice system remains insufficiently digitalised”; “a persistent lack of data on court proceedings[18] still hampers progress (...) with efforts ongoing to map judicial backlogs”.[19]

The Committee may thus wish to note with interest that progress has been made (including the finalisation of the measuring of the courts and tribunals' workload) and that several measures are still underway (including the digitisation of the justice system, the improvement of statistics and the recruitment for the vacant posts) to continue to tackle the excessive length of proceedings.

However, given the long-standing nature of the problem, the Committee may wish to stress the importance of progressing without delay and, in particular, finalising the mapping of the backlog and processing times of all courts and tribunals while immediately increasing the resources of the most overloaded ones, such as the Brussels Court of Appeal. A significant increase in its resources seems urgently required, notably in light of the new Van Den Kerkhof judgment, the June 2022 HCJ audit report on it, the finalised measuring of the workload of magistrates and clerks, the mapping of the backlog of appeal courts already completed and mainly the above-mentioned CCT statistics for 2023 (11,485 pending cases, a “clearance rate” of 98.85% and a slight increase in the average duration of civil cases of 1,061 days).[20]

1)     Judicial statistics needed to fully assess the impact of the measures adopted

The Committee may wish to note with interest the major recent efforts made by the authorities to improve their judicial statistics (uniformization of calculation and encoding methods and field data verification work), in response to its previous decisions, and to encourage their rapid finalisation, in particular through the announced reinforcement of CCT statisticians, with a view to resolving once for all the problem of their weakness, which has been noted for several years and which prevents the efficiency of the Belgian justice system from being measured and also makes it difficult to adopt appropriate policies and measures.[21]

However, several observations can be made based on the current and limited statistics provided by the FIHR and the authorities. In civil matters, the “clearance rate” is rising at first instance (from 101.24% in 2021 to 113.45% in 2023) but falling at the appeal level (from 105.74% in 2021 to 100.96% in 2023). According to the FIHR, it would even be negative for family tribunals, contrary to the figures given by the authorities. Finally, the average length of cases at the Brussels Court of Appeal appears to rise slightly. In criminal matters, the authorities have not provided any new statistics.[22] However, the action plan shows that the number of new cases has increased over the last ten years, unlike the number of cases closed.

Recalling the essential complementarity between the “clearance rate” and the “disposal time” (cf. the estimated time taken to dispose of the stock of pending cases) in order to be able to carry out a complete assessment, the Committee may invite the authorities to provide it with up-to-date and complete statistics as soon as they are ready. These should concern the "clearance rate" and "disposal time" (national average and per court of appeal) for civil and criminal cases, at first instance and appeal level, including the length of criminal investigations and family cases (using the same statistical calculation methodology as for the other courts and tribunals).

2)     Indicators of excessive length of civil or criminal proceedings: complaints and compensation claims

The HCJ, which is competent to examine complaints about, notably, procedural delays, declared 11 of these to be well-founded in 2018,[23] seven in 2019,[24] 14 in 2020,[25] 22 in 2021[26] and 19 in 2022.[27] These complaints concerned different proceedings, criminal but mostly civil (in particular, family and sometimes cases in which labour courts and tribunals are competent), inter alia at the appeal level. The HCJ found several times that the delays were due to a dysfunction of the judicial system, in particular, a lack of staff.

Moreover, since the Committee's last review, the authorities have transmitted four new decisions granting compensation for the excessive length of civil (two in family matters) or criminal proceedings. Whereas the previous examples communicated by the authorities appeared to apply the Court's criteria and method, but the length of processing the appeals was very long (four out of seven appeals took more than four years, three of which took more than six years),[28] it is important to note positively that the new examples of appeals appear to have been processed within a reasonable time (between 12 and 15 months).

The Committee might thus wish to note with interest the new examples provided by the authorities, as well as the reform of extra-contractual liability law, which could strengthen the use of the compensation remedy for exceeding the reasonable time limit while once again inviting the authorities to put in place the required means (for example, by specific encoding) to have complete information and thus monitor its functioning in practice.

3)     Developments in the budget and members of judicial staff

The budget for judicial staff has continued to grow significantly (634 million in 2014 for 897 million in 2024) while the increase in staff numbers is continuing but at what appears to be a slower pace. The Committee may wish to note with satisfaction the major budgetary efforts allocated to judicial staff (courts and tribunals and the public prosecutor's office) while inviting the authorities to continue them, inter alia for the benefit of conciliation chambers within the courts and tribunals, in a long-term structural perspective, to definitively resolve the judicial backlog in Belgium and ensure that it does not build up again. The Committee may also wish to invite the authorities to quickly follow up on the finalised measuring of the workload of magistrates and clerks by giving priority support to those courts and tribunals most faced with a large judicial backlog and a large number of new entering cases.

Financing assured: YES