Ordinary courts - Belgium
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This section presents an overview of the ordinary courts in Belgium.
Ordinary courts - introduction
The Court of Cassation (Cour de cassation/Hof van Cassatie) is the supreme court, the ‘court of courts’. It sits in Brussels.
There is an assize court (cour d’assises/hof van assisen) for each of the ten provinces and for the Brussels Capital district. It is not a permanent court but is convened whenever accused persons are sent before it.
- Court of appeal (cour d’appel/hof van beroep). There are five such courts:
- Brussels (for the provinces of Walloon Brabant, Flemish Brabant and the Brussels Capital region,
- Liège (for the provinces of Liège, Namur and Luxembourg),
- Mons (for the province of Hainaut),
- Ghent (for the provinces of West Flanders and East Flanders),
- Antwerp (for the provinces of Antwerp and Limburg).
- Labour court (cour du travail/arbeidshof). There are five. These are the appeal courts specialising in employment law. They have the same territorial jurisdiction as the courts of appeal mentioned above.
Courts of first instance
- Court of first instance (tribunal de première instance/rechtbank van eerste aanleg). There are 13, one for each judicial district (arrondissement judiciaire/gerechtelijk arrondissement) and two in the Brussels district, one Dutch-speaking and one French-speaking.
- Labour tribunal (tribunal du travail/arbeidsrechtbank). There are nine (in principle one in the territorial jurisdiction of each court of appeal, except that in the territorial jurisdiction of the Brussels court of appeal there are labour tribunals in Leuven, Nivelles and Brussels itself, and there is also a labour tribunal in the German-speaking area of Eupen).
- Commercial court (tribunal de commerce/rechtbank van koophandel). There are nine(in principle one in the territorial jurisdiction of each court of appeal, except that in the territorial jurisdiction of the Brussels court of appeal there are commercial courts in Leuven, Nivelles and Brussels itself, and there is also a commercial court in the German-speaking area of Eupen).
Inferior or local courts
- Civil magistrate (juge de paix/vrederechter). There are 187 civil magistrates' courts, one for each judicial canton (canton judiciaire/gerechtelijk kanton).
- Police court (tribunal de police/politierechtbank). There are 15.
Jurisdiction of the courts
The civil magistrate deals with civil and commercial matters involving a sum of less than €1 860. The civil magistrate also has jurisdiction in disputes regarding rent, between neighbours, or regarding easements (servitudes/erfdienstbaarheden) or expropriation, whatever the sum involved, and jurisdiction to make interim orders in disputes between spouses. Except in cases where the claim does not exceed €1 240, judgments of the civil magistrate are open to appeal before the court of first instance or the commercial court, depending on whether the dispute is of a civil or commercial nature.
The police court is a criminal and civil court that considers minor offences (contraventions/overtredingen), intermediate offences (délits/wanbedrijven) that are being treated as minor offences, breaches of specific laws (such as the Rural Code (Code rural/veldwetboek) or the Forestry Code (Code forestier/boswetboek), claims for damages resulting from traffic accidents, and road traffic offences. Judgments of the police court are open to appeal before the court of first instance, except in matters listed in the Judicial Code (Code judiciaire/Gerechtelijk Wetboek) where the claim does not exceed €1 240.
Court of first instance
The court of first instance has jurisdiction in all disputes that are not assigned by law to other courts. Thus the court of first instance has residual jurisdiction.
A court of first instance is subdivided into three divisions: the civil court, the criminal court and the juvenile court.. Since 2007 there has also been a division called the court for the enforcement of sentences at the courts of first instance in Antwerp, Brussels, East Flanders, Liège and Hainaut.
The civil court (tribunal civil/burgerlijke rechtbank) deals with matters relating to the civil status of persons (such as divorce, filiation or adoption). It also has jurisdiction in disputes involving claims of more than €1 860, disputes concerning succession or copyright, and appeals against judgments delivered by a civil magistrate.
The criminal court (tribunal correctionnel/correctionele rechtbank) tries intermediate offences (délits/wanbedrijven) and serious crimes (crimes/misdaden) such as fraud, manslaughter, burglary or robbery that are being treated as intermediate offences . It also hears appeals against judgments delivered by a police court.
A matter may be brought before the criminal court in either of two ways: by means of a direct summons by the State Counsel’s Office (ministère public/openbaar ministerie, essentially the body that brings public prosecutions) or by a party claiming damages; or by means of an order made by the pre-trial division of the court of first instance, which determines whether the accused is to be committed for trial before the criminal court at the end of a formal pre-trial investigation (instruction/gerechtelijk onderzoek).
The pre-trial division (chambre du conseil/raadkamer) deals with the pre-trial investigation; it consists of a judge of the court of first instance sitting alone, who considers whether the case should be referred to the criminal court or whether the accused should be discharged (non lieu/buitenvervolginstelling). It is also the pre-trial division that decides whether the accused is to be detained on remand or released, if necessary subject to certain conditions, either on a month-to-month basis or, in the case of a serious crime that cannot be treated as an intermediate offence, every three months.
Detention on remand (détention préventive/voorlopige hechtenis) is a security measure whereby a person suspected of having committed an intermediate offence or serious crime is held on remand pending trial. It may be ordered in order to prevent the suspect from failing to appear, or committing other offences in the meantime, or interfering with evidence, or contacting other persons, for example in order to influence witnesses or co-defendants. Suspects who are ultimately acquitted or against whom proceedings are dropped may seek compensation from the Minister for Justice for the time unjustly spent in prison. In order to receive this compensation for unjustified detention (indemnité en cas de détention inopérante/vergoeding wegens onwerkzame hechtenis), two conditions must be met: the suspect must have been detained for more than eight days, and must not have caused the detention or continued detention by his or her personal conduct. The Minister assesses this latter condition very strictly.
Decisions of the pre-trial chamber may be challenged on appeal before the indictment division (chambre des mises en accusation/kamer van inbeschuldigingstelling) of the court of appeal. This is the division that deals with pre-trial investigations at appeal court level.
The juvenile court (tribunal de la jeunesse/jeugdrechtbank) deals in particular with cases falling within the scope of the 1965 Act on the protection of young people, such as loss of parental responsibility, placing of minors in foster families or in closed centres, or juvenile crime cases..
A judge of the juvenile court does not impose penalties on young criminals, but takes measures in their regard. In practice, the judge may reprimand minors (rappeler à l’ordre/tot de orde roepen, ‘call them to order’), place them in a foster family or in a specialist institution where they will be in the company of other young people supported by teaching staff, require them to undertake community service, or even, in some exceptional circumstances, put them temporarily in prison. The measures taken by the judge must be for the young person’s care, protection or education. If a young criminal has reached the age of 16, a judge of the juvenile court may, in specific circumstances, decline jurisdiction. The minor is then brought before a special division of the juvenile court which acts as a criminal court. In the case of a particularly serious offence, such as murder, the young person will, by way of exception, be sent to the assize court, despite being a minor. The juvenile court may also take measures in respect of parents when they do not fulfil their duty of upbringing (violence committed against the child, misuse of authority, deplorable living conditions, etc.). In some urgent situations measures can be to be taken to protect the child very swiftly.
A bill passed by the Lower House of Parliament in July 2011, and sent to the Senate, would establish separate family and juvenile divisions of the courts of first instance. It would transfer some powers to the family divisions from the civil magistrate’s court, and some from the juvenile divisions.
Courts for the application of sentences
A court for the application of sentences (tribunal de l’application des peines/strafuitvoeringsrechtbank) delivers judgments on the legal status outside prison of persons sentenced to deprivation of liberty. The court can allow the following arrangements: limited detention (détention limitée/beperkte detentie), electronic surveillance, conditional release (libération conditionnelle/voorwaardelijke invrijheidstelling), and provisional release (mise en liberté provisoire/voorlopige invrijheidstelling) with a view to expulsion or return to the country of origin. The decisions of the courts for the application of sentences may be appealed to the Court of Cassation by the State Counsel’s Office or by the convicted person.
Appeals against the decisions of the court of first instance
Except in the case of decisions given by a court for the application of sentences, when a party or the State Counsel’s Office is not satisfied with a judgment delivered by a court of first instance they can appeal the judgment, provided that it was delivered at first instance, i.e. was not itself delivered on an appeal against a decision given by a police court or civil magistrate. The appeal is then considered by the court of appeal, irrespective of whether the judgment appealed against was delivered by the civil court, the criminal court or the juvenile court.
A labour tribunal has jurisdiction in social matters: social security (pensions, unemployment, etc.), industrial disputes (employment contracts, labour regulations, etc.) and industrial accidents. It also rules on petitions for arrangements with creditors filed by individuals (règlement collectif de dettes/collectieve schuldenregeling).
A labour tribunal comprises various divisions. Except where otherwise provided by the Judicial Code, these consist of a professional judge, who presides, and two lay judges (juges sociaux/rechters in sociale zaken). Depending on the nature of the case being dealt with by the court, the lay judges represent workers, employers or self-employed persons. They are appointed after being nominated by organisations in the world of work (employers, white‑collar workers, manual workers or self-employed persons). The role of the State Counsel’s Office is played by an officer known as the auditeur du travail/arbeidsauditeur, whose office is the auditorat du travail/arbeidsauditoraat.
A party who disagrees with the judgment of the employment tribunal can appeal to the employment court.
A commercial court deals with disputes between traders concerning sums of more than €1 860 but also with very specific issues such as bankruptcies or proceedings between shareholders of a company. It also hears appeals against judgments delivered by the civil magistrates’ courts in the field of commerce.
The divisions of the commercial court consist of a professional judge and two lay judges (here called juges consulaires/rechters in handelszaken). These lay judges are nominated by the various associations representing commerce and industry. The associations select candidates from among traders, company directors, company auditors and accountants. The State Counsel’s Office is represented by a member of the State Counsel’s Office at the court of first instance.
If a party wishes to challenge a judgment of the commercial court, they lodge an appeal before the court of appeal. The contested judgment must have been delivered at first instance, and must not itself be a judgment on an appeal against an earlier decision of a civil magistrate.
Courts of appeal and labour courts
A court of appeal consists of several divisions:
- Civil divisions (chambres civiles/burgerlijke kamers) consider appeals against judgments delivered at first instance by the civil divisions of the courts of first instance and by the commercial courts.
- Criminal divisions (chambres correctionnelles/correctionele kamers) consider appeals against judgments delivered at first instance by the criminal courts.
- Juvenile divisions consider appeals against judgments delivered at first instance by the juvenile courts.
- The indictment division (chambre des mises en accusation/kamer van inbeschuldigingstelling) deals with pre-trial investigations, and hears appeals against decisions of the pre-trial division of the court of first instance. It is also the indictment division that refers suspects to the assize court on charges of serious crime, press offences or political offences.
As with the employment tribunal, the divisions of the employment court consist of a professional judge and two or four lay judges. The employment court considers appeals against decisions of the employment tribunals.
When a person is accused of a serious crime (crime/misdaad) that cannot be treated or is not being treated as an intermediate offence (délit/wanbedrijf), he or she is summoned to appear before the assize court (cour d’assises/hof van assisen) to be tried by jury.
The assize court is presided over by a professional judge, assisted by two assessors (assesseurs/bijzitters) who are also professional judges. The judges do not rule on the guilt or innocence of the accused. It is for the jury to decide whether the accused has committed the offence. The jurors are chosen by lot. Any Belgian citizen aged between 28 and 65 may be called upon to undertake jury service provided he or she is not under a sentence of deprivation of civil and political rights, can read and write, and has never been sentenced to more than four months’ imprisonment or more than 60 hours’ community service.
The assize court proceedings start with the reading of the indictment, summarising the fact-finding process and setting out the main evidence gathered during the pre-trial investigation. Then, the witnesses and persons involved in the pre-trial investigation are heard. These hearings are intended to enable the jurors, who have not been able to consult the court file, to form an opinion. Next, the prosecutor delivers the prosecutor’s address, requesting a specific sentence; parties claiming damages are heard; and the defence lawyers present their pleadings. The accused is also heard. He or she answers questions put by the presiding judge, provides explanations, and may also plead his or her innocence. At the end of the proceedings, the 12 jurors retire behind closed doors. They have to deliver a verdict on the guilt or innocence of the accused. They decide by vote, and their decision may be qualified. They may, for example, find the accused guilty while recognising the existence of extenuating circumstances. If the accused is found guilty, the professional judges and the jurors then sit together to determine the sentence to be imposed. This decision is taken by absolute majority. The decision on the guilt of the accused must state its reasons.
In general, a judgment of the assize court is not open to a full appeal on matters of fact and law (appel/hoger beroep). But the convicted person, a party claiming damages or the State Counsel’s Office may, nevertheless, bring an appeal on points of law only (pourvoi/cassatieberoep) to the Court of Cassation. If the Court of Cassation quashes a conviction it sends the case back to another assize court, which must try it afresh.
Press offences and political offences
There is a press offence (délit de presse/drukpersmisdrijf) where there is culpable expression of thought through words of which multiple copies are distributed by means of a technical process. A political offence (délit politique/politiek misdrijf) is an offence committed for a political reason and for political purposes. Political offences and press offences are tried by the assize court, except in the case of press offences motivated by racism or xenophobia.
Court of Cassation
The Court of Cassation is the guarantor that ensures that the courts are acting in accordance with law. It has jurisdiction over the whole of Belgium. The Court of Cassation does not rule on the facts but only on questions of law. An appeal to the Court of Cassation (pourvoi/cassatieberoep) may be lodged only on points of law, on the grounds that there has been a breach of the law or of a general principle of law. Appeals can be brought before the Court of Cassation only against judgments delivered at last instance, that is to say judgments against which it is no longer possible to lodge an ordinary appeal on points of fact and law (appel/hoger beroep).
The Court of Cassation consists of a first president, a president, section presidents and ordinary judges (conseillers/raadsheren). The State Counsel’s Office is represented by the Principal State Counsel (procureur général/procureur generaal) at the Court of Cassation or by an advocate-general (avocat général/advocaat generaal). The Court consists of three divisions: the first division considers civil, commercial, tax and disciplinary cases, the second criminal cases, and the third cases concerning employment and social security law. Each of these divisions has a French-language section and a Dutch-language section. In each section the number of judges sitting in a case is usually five.
Before giving judgment the court hears the opinion of the State Counsel’s Office at the Court of Cassation. The court may or may not dismiss the appeal. If it does not accept the arguments put forward, it dismisses the appeal, and the contested judgment becomes final. If it takes the view that the contested judgment is indeed faulty on a point of law, it quashes the judgment, in whole or in part; if it concludes that the substance of the case has to be reconsidered, it quashes the judgment and refers the case to another court at the same level as the one that delivered the judgment. The case is never referred back to the same court.
It may be worth pointing out that alongside the civil courts, the criminal courts — the criminal divisions of the court of appeal and the assize court, the criminal division of the court of first instance (the criminal court) and the police court (when it hears criminal cases) — also hear civil applications lodged by civil parties who have asked for their claims to be joined to the criminal proceedings; these are essentially applications for damages brought by victims of crime in the widest sense.
Further information about the law courts is available on the portal of the Judiciary in Belgium.
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Last update: 17/09/2015