Distr.
GENERAL

E/CN.4/1998/39/Add.3
16 February 1998


Original: ENGLISH

COMMISSION ON HUMAN RIGHTS
Fifty-fourth session
Item 8 of the provisional agenda

QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED TO
ANY FORM OF DETENTION OR IMPRISONMENT



Report of the Special Rapporteur on the independence of judges and lawyers,
Mr. Param Cumaraswamy, submitted pursuant to Commission
on Human Rights resolution 1997/23


ADDENDUM

Interim report on the mission of the Special Rapporteur to Belgium
CONTENTS

INTRODUCTION

I. GENERAL BACKGROUND

II. REFORM PROPOSALS

III. INTERNATIONAL STANDARDS

IV. PARLIAMENTARY COMMISSION OF INQUIRY

V. JUDICIAL ACCOUNTABILITY

VI. THE REMOVAL OF JUDGE JEAN-MARC CONNEROTTE

INTERIM CONCLUSIONS AND RECOMMENDATIONS

Introduction
I. GENERAL BACKGROUND
II. REFORM PROPOSALS
Article 151

§1 "Justices of the Peace, Court Judges and Judges of the Courts of Appeal and the Court of Cassation shall be appointed by the King as provided and in the form established by the law. Without prejudice to action by other advisory bodies, the appointment shall be made, inter alia, following a classification by an advisory body composed of judicial magistrates, appointed on their presentation by the Senate on the basis of a two thirds majority of the votes cast, and other members appointed by the Senate on the basis of a two thirds majority of the votes cast, and other members appointed by the Senate with the same majority. In the case of an appointment as judge of the Court of Appeal [or judge of the Court of Cassation], the law also provides for the issuance of an opinion by these courts, preceding the classification referred to in the second paragraph, in the form prescribed by the law ...

§4A "A Supreme Council of Justice exists for the whole of Belgium comprising an equal representation of judicial magistrates directly elected from the judiciary, and other members appointed by the Senate on the basis of a two thirds majority of the votes cast. The law shall establish the subsequent composition and modus operandi of this Council. The Supreme Council shall issue opinions and prepare proposals, according to the conditions and in the form prescribed by the law, inter alia to the Federal Government and the Divisions, either at their request or on its own initiative, as regards the general operation of the judicial organization [and the enforcement of penalties] and shall dispose for this purpose of the means of investigation established by the law. The law shall establish a procedure to enable the Council to handle complaints concerning the general operation of the judicial organization."
III. INTERNATIONAL STANDARDS
"Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that such a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory."
"A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge."
"The proceedings for judicial removal or discipline when such are initiated shall be held before a Court or a Board predominantly composed of members of the judiciary. The power of removal may, however, be vested in the Legislature by impeachment or joint address, preferably upon a recommendation of such a Court or Board." (emphasis added)
IV. PARLIAMENTARY COMMISSION OF INQUIRY
V. JUDICIAL ACCOUNTABILITY
VI. THE REMOVAL OF JUDGE JEAN-MARC CONNEROTTE
1. "that the impartiality of judges is a fundamental rule of the judiciary ... and that it guarantees persons on trial that judges will apply the law impartially";

2. "that the essential condition for the impartiality of the examining magistrate is his total independence vis-a-vis the parties, such that he cannot lay himself open to any suspicion of partiality in the investigation of facts, whether for the prosecution or the defence";

3. "that it is clear from a comparison of article 828 of the Judicial Code, which lists the causes of objection, and article 542 of the Criminal Investigation Code, which provides for transfer from one court to another on grounds of bias, that an examining magistrate who has been entertained by one of the parties at the latter's expense, who has accepted gifts from him or has thus shown sympathy towards that party, may consequently not continue to investigate his case without giving rise to doubts in the minds of other parties, particularly the defendants, about his ability to perform his functions objectively and impartially."
INTERIM CONCLUSIONS AND RECOMMENDATIONS


HOME | SITE MAP | SEARCH | INDEX | DOCUMENTS | TREATIES | MEETINGS | PRESS | STATEMENTS



© Copyright 1996-2000
Office of the United Nations High Commissioner for Human Rights
Geneva, Switzerland