Open data jurisprudence - Finally, the Law in Belgium!
The Belgian Act of 5 May 2019 amending the Code of Criminal Procedure [Code d'instruction criminelle] and the Judicial Code [Code judiciaire] with regard to the publication of judgments and decisions was published on 16 May 2019 in the Moniteur Belge.
It's a 15-year-old idea. The observation that legal knowledge is only shared under conditions that do not guarantee its access to everyone, legal professionals or not, is not new. Neither are repeated attempts to remedy.
As a result of the reform of the digitalisation at the Belgian judiciary initiated in 2001, the "Phoenix Act [Loi Phénix]" of 10 August 2005 already established a database of domestic and international jurisprudence. The objective, for one, was to allow the different members of the same jurisdiction to work on court records and for the other, to disseminate to the public decisions of importance for knowledge and evolution of the law.
Five years ago, on 30 June 2014, "The feather, the pelican and the cloud" [La plume, le Pélikan et le nuage] was published, a report devoted to the issue of the publication of court decisions prepared by the Commission for the Modernisation of the Judiciary (CMOJ).
This report first highlighted the strong disparities that exist between Belgium’s highest courts - the Court of Cassation, the Council of State and the Constitutional Court - each already subject to different publication regimes between each other and the decisions accessible through the public portal Juridat and private databases such as Jura, StradaLex or Jurisquare. Masters Jean-Pierre Buyle and Adrien Van den Branden, who are often consulted when it comes to the impact of technology on the law, had pointed out in a signed open letter at the end of the year 2017 that only "0.47 % of judgments handed down since World War II" were available on Juridat.
Furthermore, this report highlighted the deficit, in every sense of the term, represented by a random, partially privatised and selected dissemination of jurisprudence of courts and tribunals, despite the ongoing development of the JustX-VAJA tool by the judiciary itself. The lack of a scientific definition of the knowledge and dissemination of jurisprudence ended in blackening the picture of the poor relative of the three pillars, that complement law and doctrine.
Finally, the CMOJ made a series of recommendations, among which the amendment of Article 792 of the Judicial Code and the renegotiation of publishing contracts came first.
The difficulty of articulating standards between themselves. The Constitutional Court, in the first place, pointed out ten years ago that the publication of a judgment could be done otherwise than by a full reading in open court - see on this subject the Constitutional Court judgments n° 1/2009, n° 36/2009 and n° 67/2009.
Two years later, the Court of Cassation (Cass. 29 November 2011 (P.10 1766.N)) did not say anything else and confirmed that a "partial" reading of the judgment was of such nature as to fulfil the objective pursued.
In October 2015, the Council of State had, in turn, noted, with regard to a bill aimed at modulating this public nature of the delivery, that such an initiative should be preceded by a constitutional amendment.
Here are the three highest courts transitioning on their way to adopt! This amendment, initiated in January 2017, was finally adopted by the Senate and submitted for royal assent on 29 March 2019, and Article 149 of the Constitution will now read as follows:
"Each decision shall be motivated. It shall be delivered in open court.
It shall be made public according to the procedures set by law. In criminal matters, its decision is delivered in open court."
Exactly one year ago, on 30 May 2018, one of the Equal Day workshops we dedicated to the collaborative society, was dedicated to "open law".
Behind this mysterious term, we had intended to make the main focus of our discussion the access to jurisprudence and sharing it with everyone. We had gathered around the table all the diversity that the legal world has to offer.
That way, the players met there who are close to the judiciary - at the Constitutional Court and the Judicial Training Institute - ; members of the European incubator of the Brussels Bar and the incubator of avocats.be, from the political world with the Chancellery of the Prime Minister and parliamentary collaborators, and even from the business world - and in particular from the Lex.be tool – or associations - with the French association Open Law.
The difficulty of articulating technology and standards. While all the players present said they were ready to work together to implement existing tools, the press reported at the end of June that the office of the Minister of Justice had decided to cut funding for the database VAJA, for Vonnissen-Arresten-Jugements-Arrêts, which has already nearly 242,000 entries of decisions by the Courts of Appeal and the Labour Courts.
What's at issue? An "obsolete" technology, and a database that will not be ready until in "two" to "four" years.
Perhaps. But nevertheless, a multi-partisan - from the PS up to the N-VA - bill has been submitted, and it was adopted by the Judicial Affairs Committee.
The result is the Belgian Act of 5 May 2019 amending the Code of Criminal Procedure [Code d'instruction criminelle] and the Judicial Code [Code judiciaire] with regards to the publication of judgments and decisions.
The text establishes in principle, both with regard to criminal as well as civil matters, the delivery of only the operative part of a rendered judgment; parties may though, upon a reasoned request, request that the judgment be read in its entirety, as may the President of the Chamber do, ex officio. This will also be the case when the entry the judgment which we will discuss below will be "impossible".
This very partial reading is accompanied by several consequences.
On the one hand, it will be a matter of the complete entry of the entire decision in a publicly accessible database. However, this access itself has its own consequence; the mandatory anonymisation of data that allows the direct identification of parties and other persons involved. And, on the other hand, it will be a matter of making available, as soon as it is delivered, a complete copy of the judgment to the Registry so that parties can take note of it, which will not affect the necessity for the Registry to communicate the decision to the parties by simple letter, as is currently the case.
A leap into the future. This law is obviously not sufficient in itself, requiring the King's subsequent intervention to regulate the practical arrangements for the establishment of this database and the necessary anonymisation.
Let us therefore allow ourselves to express several wishes to those who will be responsible for implementing this reform.
First of all, we can only hope that the budget to be allocated to it will be as much a consensus as the very idea of this bill, having succeeded in uniting around it the entire parliamentary spectrum.
Secondly, it would be absolutely necessary for the technology to be able to follow the principles, and for the future database to be imagined and designed for both legal practitioners and citizens, for now and for the future.
Finally, we can only hope that the number of comparative studies, of specialists who have taken an interest in the subject - n Belgium as well as in other European countries - and of past experiences in other European member states are guiding the future members of the executive in their choices.
These wishes pursue the same desire, namely that of not leaping before looking - and not at any cost - into any technological innovation that would be proposed, for example by players in the expanding field of Legal Tech and by supporters of artificial intelligence, but that the creation of this database will be guided by requirements of modernity, ergonomics and functionality.
We would like to hope that this plea has an impact before 1 September 2020, and that this database can serve Belgian law as well as the citizen.
Associated areas of specialisation: Privacy and personnal data