As part of the Phenix project, the Belgian Parliament adopted two important Acts on 10 July and 5 August 2006 governing the electronic aspects of judicial proceedings.
The Phenix project, launched in 2001, is the basis for the implementation of an e-justice system using electronic files and open-source standards. This project is expected to create both internal efficiencies and more importantly improve the cost and speed of the judicial process.
Improvements to Civil Procedure
The Act of 10 July 2006 sets outs the rules for the electronic creation, filing, notification, storage and consultation of all documents relating to a case while the Act of 5 August 2006 sets out the changes that will follow from project Phenix’s implementation in the Belgian Judicial Code. A large number of provisions of both Acts will be subject to future implementing legislation by means of Royal or Ministerial Decrees.
No one can be forced to process or to receive case documents electronically though this can lead to substantial efficiencies and all electronic case documents will be deemed to have the same importance as their paper counterparts. When it is impossible to create, file, store or consult case documents electronically due to force majeure, the Act provides that traditional post and paper-based methods of sending and processing such case documents must be used.
Electronic case documents may be signed using a qualified electronic signature as provided for in the Act of 9 July 2001 regarding electronic signatures and certification services. Qualified electronic signatures are based on a qualified certificate which is created by a secure signature creation device and will have the same legal value as a handwritten signature.
The Judicial Code’s new provisions also deal with the filing of petitions, appeals, trial briefs etc. which can be done electronically at any hour of the day, even after the clerk’s office closes at 4pm. In addition, if the validity of procedural acts cannot be warranted at the clerk’s office by the relevant deadline because the Phenix system fails, an extension will be granted to allow such acts to be validated electronically or in writing on the next day.
Improvements to Criminal Procedure
The above-mentioned principles also apply to the criminal procedure unless the Criminal Procedural Code states otherwise. The new Acts set out in more detail the ways in which electronic criminal files are to be composed and how written files are to be transferred to electronic files and vice versa.
Conclusion
Implementing legislation is needed to flesh out the details of these two Acts so, for the time being, their importance and enforceability is limited to the main practicalities with respect to the judicial procedure. As the implementation of such secondary legislation will no doubt take quite some time, the aim of these Acts, namely to speed up the judicial process, may only be achieved in the mid to long term.
By Didier Wallaert
