The Belgian judicial officer in front of Covid-19: between fear and hope.

Author : Patrick Gielen Judicial Officer Brussel (Belgium)

“We should not put justice into lockdown at the time when the population gets out of lockdown”

“Today’s creditor must not become tomorrow’s debtor”

“A right without a penalty is no longer a right”

The Belgian Judicial Officer : statistics

Women – Man: 

Judicial Officer

Candidate judicial officer

Trainee

Dutch Speaking (NL) and french (FR) speaking: 

Average age: 

Number by district: 

Number of cases in 2018 (Flemish, French and brussels part): 1.804.148 

Number of Judicial Officers in Belgium: 

Introduction

On 12 March 2020, Belgium entered the “federal phase of crisis management”.

Since 18 March, Belgium has been in a phase of general lockdown until 3 May.

Since 27 March, two laws confer special powers on the government. These special powers allow the government to issue decrees in targeted matters for a period of three months to respond rapidly to the epidemic and manage its consequences. 

In three months, the government issued more than 30 royal decrees with special powers, including a whole series in justice, which was heavily impacted.

Although we are, in Belgium, currently far in the end of lockdown, we note that normality is not yet back to normal for a great number of judicial officers.

The profession took his responsibilities

In the first place we note that the occupation of judicial officer, in a general way, took its responsibilities and it is quickly and effectively adapted to the crisis. We can quote as an example that no more enforcement measures were practiced against the restaurant sector as well as against other sectors hard hit by the crisis and that the cases are treated on a case-by-case basis by putting forward the mediation and the contact with the debtor.

This is particularly evident from the figures taken from the Centralized File of Notices of Attachment, which is a computerized and centralized file containing all enforcement measures carried out at the expense of a debtor party: 

Filing of all kinds of attachments against legal persons (conservatory, enforceable, garnishment, movable and immovable property):

– Beginning of 2020: on average 4,000 per week

– Week of April 13 : 1,143 (-71%)

Filing of attachments on movable goods against legal persons: 

– Early 2020: on average 1,000 per week

– Week of April 13: 6 (- 99.4%)

Filing of any kind of attachments against natural persons (conservatory, enforceable, garnishment, movable and immovable property):

– Early 2020: on average 20,000 per week

– Week of April 13: 2,919 (-85%)

Filing of attachments on movable goods against natural persons: 

– Early 2020: on average 3,000 per week

– Week of April 13: 13 (- 99.5%)

In addition, we noted in our studies an increase in requests for deferral of payments. Indeed, since 13^th of March, 50% of incoming calls are for a deferral request, or lower repayment plans. 

In consultation with the debtor and the creditor and after analysis of the debtor’s financial situation, this deferral is granted in 80% of cases. 

This is a clear indicator that people with lower creditworthiness are more seriously affected than the average family. 

Furthermore, we note that since 13^th of March, the average number of daily repayments has decreased by about 25%. 

This mainly concerns payments from persons and companies that were already facing lower solvency before the outbreak of the health crisis. 

Late intervention of the government 

However, in spite of the efforts made by the profession of judicial officer the Belgian government took two royal decrees of special powers, one on 24^th of  April 2020 relating to the temporary suspension in favor of companies during the crisis of COVID-19 and the other of 20^th of May 2020 relating to various provisions as regards justice within the framework of the fight against the propagation of the coronavirus COVID-19 granting a generalized moratorium as well to companies as to natural persons and this until 17^th of June. 

These measures, which, with a few exceptions, grant debtors, whether consumers or entrepreneurs, an almost general moratorium against any attachments, despite the words of the Minister of Justice in the Justice Committee:

“I see that the directives are being followed by the Judicial Officers. This is shown, among other things, by the statistics on attachment of movable property, attachment of real estate and attachment on bank accounts, which have fallen dramatically in the last weeks. The information I have obtained from the ombudsman for the Judicial Officer sector also indicates that the problems on the ground are under control. Since 13 March, the number of complaints has fallen by a third. That is 13 out of 21 days in absolute terms. It is likely that these are mainly complaints relating to acts prior to the introduction of the circulars. In addition, there are almost no evictions. The only ones that are known for the time being concern situations of domestic violence. However, I have instructed my administration to prepare the texts that will be necessary if it turns out that the guidelines are no longer being followed“.

The question that rise is to know why our Minister of Justice didn’t trust in our way to handle this crisis. 

These measures can be criticized for various reasons. 

First, these measures are taken too late. It was necessary to introduce a moratorium immediately for the most difficult part of the moratorium, introducing such a moratorium at the end of April for companies and at the end of May for individuals does not make much sense. 

Secondly, even if we can imagine the usefulness of these moratoria for debtors and for the recovery of the economy, such a generalization may be dangerous if the moratorium is extended for too long, especially for the creditor who risks becoming a debtor through a cascade effect. 

Thirdly, in spite of the moratoria on executions the creditors still had the possibility to implement the assignments of claims (started by the credit and banking institutions) and thus impoverish the debtors without the intervention of a profession such as the judicial officer who can always proceed to mediation and handle as an intermediary between both parties. 

Statistically, concerning the assignments of claims we note an increase of 25% between 2019 and 2020 by taking as period the one between weeks 12 and 16.

Fourthly and finally, such a general moratorium gives society an image of impunity. Indeed, a right without sanction is no longer a right. This is not good for the legal security in a democratic State. 

It was therefore wrong for the government to put the emphasis only on attachments and forced executions, whereas the judicial officers had already settled this question themselves by finding a balance between the rights and obligations of creditors and debtors. 

This search for a balance between the creditor and the debtor is an essential part of the task of a judicial officer.

Future of the Belgian judicial officer after the Covid-19 crisis. 

As a result of this health crisis, our profession must not only question itself but must also look to the future. 

Indeed, this period put forward not only the need for modernization and digitalization of the legal system but also the need for amicable and post-judicial mediation, that in a thoughtful and intelligent way in collaboration with all the other actors of the legal world.

Various solutions can be proposed: 

– The creation of a judicial electronic address imposed on all the actors of justice would allow a reduction of the workload and collaboration in a digital way.

– The promotion of electronic service of documents, particularly for those that must be served on public institutions or companies. 

– The extension of the Centralized Register of Dematerialized Documents (RCAD) which is a centralized and digital register of all authentic documents served by judicial officers. This register can allow the digital introduction of cases before the courts for the whole of Belgium. 

– The introduction of a procedure for the collection of uncontested claims in B2C relationships. In view of the success of the B2B procedure for uncontested claims (more than 40% of cases are resolved within 5 weeks without the intervention of a lawyer or judge), the extension of this procedure to consumers will not only relieve the courts of their workload so that they can concentrate on their main task of dealing with real disputes, but will also drastically reduce the legal costs borne by consumers, as shown in the diagram below.

Also the statistics of the new procedure introduce by law in 2016 shows good results. 

Files open between 2nd of July 2016 and 30th of June 2020
106.424 files
Handling file between 2nd of July 2016 and 15th of May 2020
Paid on summons	13.422	13%
Contestation	1.315	1,3%
Payement plan	1.318	1,3%
Paid after summons	28.038	27%
Title	59.363	58%
Total	103.456	100%

After nine weeks, 80% of the cases have already been resolved

In conclusion I can say that more than before, the role of mediation of the judicial officer must be put forward and the same time than the digitalization of our profession this in respect of both parties, the creditor and the debtor. 

Patrick Gielen

Judicial Officer Brussel (Belgium)

International Advisor Belgian National Chamber of Judicial Officer

Advisor to the President of the UIHJ

Chairman of the commission for the appointment of Judicial Officers

July 2020