I. The Appointment and Promotion of Judges in Belgium

As far as the traditional courts and tribunals are concerned, the system of appointment of judges has undergone a fundamental evolution in the Belgian legal system. When the Belgian state was being conceived, the drafters of the Constitution opted for a system in which the executive appointed judges. At the time, that was considered the “modern” way, which better protected judges against external pressures than did the alternatives, such as election by the people. ^{Footnote 20} While it was the King that made the formal appointment, the real decision was taken by the Minister of Justice. Regarding lower-ranking judges the Minister enjoyed absolute autonomy. For hierarchically higher positions, such as in the courts of appeal and the Court of Cassation, and appointment to the position of court president, he had to choose from candidates that were nominated via two lists, one compiled by the court in question and the other by the legislative branch. This way, the legislative and judicial powers retained some influence over the appointment of the highest judicial officers.

This system de facto led to a judiciary filled with people from the upper classes, making it into a socially closed-off corps. After World War II, that system gradually changed, in part due to greater access to higher education. The focal point of the appointment process moved from the King/Minister of Justice to the political parties. Appointment on the basis of social standing was replaced by appointment on the basis of political affiliation. ^{Footnote 21} This political specter loomed quite openly over the appointment process. The Minister of Justice felt strong pressure from his or her party to let partisan motives influence the appointment decision. ^{Footnote 22} In that new system, the various party leaderships and some informal commissions distributed judicial appointments via a difficult calculation, even making these decisions part of the discussion during coalition negotiations. ^{Footnote 23} The original justification for that state of affairs was that the judiciary should be a reflection of the pluralist society in its entirety.

It is, however, not difficult to see that such an appointment system would give way to the politicization of the judiciary, difficult to square with the image of independent judges. Both the political system and the older system on the basis of social standing also negatively affected women’s opportunities in the judiciary. It was not until 1948 that the first woman was appointed as a judge. ^{Footnote 24} It was not until the mid-1990s that something else changed. After a big scandal involving mistakes made during the capture and investigation of Marc Dutroux, who had kidnapped, raped, and killed several young girls, the so-called White Demonstration—to date one of the biggest demonstrations that Belgium has ever seen—pressured the government into wide-scale reform. The crown jewel of this reform was the creation of the Hoge Raad voor de Justitie (High Council of Justice, hereafter also HCJ), a judicial council with a sui generis statute and consisting of equal numbers of judicial members, appointed by their peers, and non-judicial members, appointed by the Senate. ^{Footnote 25}

The creation of the HCJ has been a true game changer for the appointment of judges in Belgium. The main reason for its creation was to objectify the appointment procedure and to transform the “institutionalized politicization” ^{Footnote 26} that was inherent in the previous system into a system based on merit and qualifications. Since then, the focal point of the appointment process has lain with the Appointment and Selection Committee of the HCJ, which, after a long and extensively prescribed selection process, nominates with a two-thirds majority one candidate for each vacancy. While it is still the King who formally appoints the judge, it is in reality the HCJ that decides who the judge should be. The King only has two options. He either appoints the nominated candidate or gives a reasoned decision as to why he is refusing that candidate. He cannot appoint a candidate that was not nominated by the HCJ. Over time, this recommendation has become increasingly binding in practice. Whereas the King/Minister still refused 25 out of 333 nominations by the HCJ in 2001, in 2021 four out of 216 were refused, and in the preceding three years no nominated candidate had been refused. ^{Footnote 27} The King’s eventual appointment decision is seen as an administrative measure which is amenable to judicial review before the Council of State. ^{Footnote 28}

Overall, the current system of appointing judges to ordinary courts is thus marked by a formal, merit-based system that allows for judicial review. ^{Footnote 29} The discretion and informality that marked the older systems have disappeared. This more objective system also seems to have had a positive effect on the equality of chances to enter the judiciary. As soon as the appointment process became more objective, the number of women started to rise tremendously, and since 2013 there have been more female than male judges. ^{Footnote 30}

The situation is, however, completely different for the Constitutional Court. That court’s appointment system has not changed since it was established in 1980 and is still marked more by convention. The Constitution and the special law on the Constitutional Court prescribe that the Court shall consist of 12 judges, with a double, overlapping parity regarding language and background. There are six Dutch-speaking and six French-speaking judges. ^{Footnote 31} On top of that language parity, there is a parity in professional background. In both language groups, there must be an even number of judges with a parliamentary background and judges with a certain number of years of legal experience in the highest echelons of the judiciary or who are full professors. ^{Footnote 32} That formally prescribed double parity in the composition of the Court is further compounded by an informal rule. ^{Footnote 33} Since the Court’s conception, it has been understood that its composition must offer a certain ideological representation of society. That means that the ideological background of the judges must—approximately—represent that of the political landscape. ^{Footnote 34} The idea behind this rule is that, because the Court has an important impact on the legislative branch and at times makes decisions that may have a political impact, it should reflect the various political views circulating in society. ^{Footnote 35} This informal rule can thus be understood as an external judicial complementary institution. ^{Footnote 36}

The judges of the Constitutional Court are appointed by the legislative branch, alternately by the Chamber of Representatives and the Senate, with a two-thirds majority, from a list of two possible candidates. Here, too, it is the King who makes the formal appointment decision. While he is in principle free to choose either of the two candidates, it is always the first candidate that is appointed. ^{Footnote 37} Because of the rule just mentioned, for each vacancy it is known in advance which political party will nominate the new candidates. In principle the party in question tries to nominate candidates who are acceptable to all the others (and of course satisfy the other requirements imposed by the law), ^{Footnote 38} but in general the nominating party has quite some leeway. The rule seems to be that each party “minds its own business”, ^{Footnote 39} meaning that in essence the real decision-making power is vested in the political party whose turn it is. It was only in 2020 that the nominated candidate did not for the first time ever obtain the required majority. ^{Footnote 40}

Interestingly, this specific system of appointment has recently been questioned as a consequence of a judgment by the European Court of Human Rights. In the Grand Chamber judgment in Guðmundur Andri Ástráðsson, the Court emphasized the paramount importance of a rigorous process for the appointment of ordinary judges to ensure that the best qualified candidates are appointed. The Court then continued by saying that it goes without saying that the higher a tribunal is placed in the judicial hierarchy, the more demanding the applicable selection criteria should be. ^{Footnote 41} Two Belgian commentators pointed to this part of the judgment to cast doubts on the viability of the current appointment system for the Constitutional Court, one that is founded on a representative distribution of seats according to the weight of the various political parties and where half its members are nominated as a result of their parliamentary experience and do not necessarily need law degrees. ^{Footnote 42} Notably, a legislative amendment has recently been introduced that would, among other things, require all members of the Constitutional Court to have law degrees. ^{Footnote 43}

The Constitutional Court is the only court in the Belgian judicial system that has to comply with a gender quota. In 2014, of the 35 judges appointed to the Court, only four were women. Part of the reason for that could be found in the fact that more men than women fulfilled the requirements concerning legal expertise, such as having been full professors or judges in the Court of Cassation for five years. ^{Footnote 44} In this way, the understandable aspiration within the appointment requirements to make only established jurists eligible for the Constitutional Court indirectly increased the sticky ladder that women face in academia and the judiciary. In that same year, an amendment to the Special Law introduced a requirement that at any given time neither gender may make up more than two thirds of the judges in the court. This quota has already had some effect: of the eight new judges appointed to the Court, four have been women.

When we move from the initial appointment of judges to their further careers within the judiciary, we see a very similar evolution throughout the years. Here as well, there was originally little in terms of legislative framework, which left a vacuum to be filled by convention and informality. Originally, the decisions to promote judges, either to higher courts or to hierarchically higher positions such as that of court president, were mostly left to the courts themselves. This led to what has been described as the continuation of a system of co-option and selection mechanisms, via mostly male networks with unclear and opaque criteria, which often overlooked women. ^{Footnote 45} In some courts, including the Court of Cassation and the Council of State, it was the established practice simply to appoint the judge with the greatest seniority as court president. ^{Footnote 46} Furthermore, once obtained, such positions lasted until the judges in question retired.

The legislature wanted to change this system, in which “the dangers of corporatism were never far away.” ^{Footnote 47} Time and again it had been shown that good judges were not necessarily good court presidents, because the position also requires a degree of management and organizational skills. Because those positions were granted for the rest of a judge’s career, an unsuitable court president could endanger the smooth functioning of a court for years.

In 1998—in the same judicial reform that amended the appointment system—the legislature also overhauled the promotion system. The system is now as follows. A promotion to a higher court is treated as a new appointment, which means that the judge in question will have to apply for the position and be selected by the Appointment and Selection Committee by the HCJ on the basis of his or her merits. Similarly, in dealing with promotion to a position as court president the Appointment and Selection Committee now also has a key role. The judicial code now provides for an extensive procedure that virtually runs parallel to the appointment procedure, in which the Committee hears the potential candidates and suggests to the King the most suitable one for appointment as court president. During this procedure, the candidate in question must submit a policy plan for how they want to manage the court. The Committee must furthermore obtain opinions from specific actors, such as the president of the court, in which the candidate is currently working. ^{Footnote 48} For each specific type of court, standardized profiles have been prepared by the Advice and Examination Committee of the HCJ on what skills its court president should possess. ^{Footnote 49} These profiles should then guide the Appointment and Selection Committee in choosing the most suitable candidate. ^{Footnote 50} The ultimate appointment by the King as court president is equally seen as an administrative measure amenable to judicial review.

Overall, there has been a clear move towards a more codified and formalized system for the appointment and promotion of judges in Belgium. It has become increasingly clear that the older systems, which left room for—or even simply completely revolved around—partisan considerations or personal relationships, did not lead to the best results. Eventually, it was the so-called Dutroux affaire which sparked a complete overhaul of the judiciary, leading to the creation of the HCJ. Even though some criticism remains, ^{Footnote 51} this undoubtedly led to a more objective and formalized appointment and promotion system.

II. The Use of Substitute Judges

In common with those of other countries, the Belgian judicial system is struggling with financial difficulties. Throughout the years, these have increasingly worsened, to the point where there was not enough judicial staff and the judiciary was suffering from an ever-increasing backlog of cases. One of the solutions found for getting out of that situation was the increased use of substitute judges. Those were legal professionals, most often lawyers, notaries, or university professors, ^{Footnote 52} that were not officially appointed as magistrates, but were allowed to fulfil a judicial role in order to help reduce the backlog in cases. The reasons for which those legal professionals take up mandates as substitute judges vary, but most do it because they want to obtain extra, complementary experience or are thinking of becoming full-time judges and see this as a good way to find out whether the job suits them.

Originally, the system of substitute judges was designed to replace full-time magistrates that were temporarily indisposed, for example due to illness. Yet, due to the judicial backlog their use became increasingly widespread. Whereas substitutes were originally only used in the lower courts, a 1997 law allowed them also in courts of appeal. ^{Footnote 53} Furthermore, substitute judges could be called upon when a court did not have enough staff to validly compose a bench. The practice became so widespread that some substitute judges served in certain positions for years on end and sometimes made up half of a court’s judicial staff. In other words, what was originally envisaged as a system to temporarily replace indisposed judges over the years became a structural part of the Belgian judicial system. ^{Footnote 54} In fact, in 2004 there were almost as many substitute judges as permanent magistrates. ^{Footnote 55}

In the 1990s, this state of affairs increasingly came under pressure. While overall the work of substitute judges and their dedication and selfless commitment were praised, ^{Footnote 56} there was also mounting criticism, especially regarding their independence and impartiality. ^{Footnote 57} Some of these doubts stemmed from such judges’ institutional position. In this sense, substitute judges, as opposed to permanent ones, did not have to pass an exam proving their competency in order to be appointed, and were paid little or nothing for their mandate. Yet, the criticism was also fueled in part by stories of more unsavory practices regarding substitute judges—also seen in the Netherlands—most notably regarding the blurring of the lines between a position as a lawyer and that as a substitute judge. In this respect there were reports of substitute judges who started establishing their own lines of case law, sometimes favoring an interpretation that benefitted the clients they habitually defended; ^{Footnote 58} lawyers pleading cases in front of courts where they also acted as substitute judges which creates the risk of the sitting judge being more cooperative towards the lawyer/substitute judge; ^{Footnote 59} substitute judges receiving special mandates allegedly as a form of compensation for their services; ^{Footnote 60} the use of substitute judges as assistants in prosecutors’ offices, which could create confusion in the minds of the public as to the difference between prosecutors and lawyers; and a more general lack of integrity among substitute judges. ^{Footnote 61}

Even though the institution of substitute judges increasingly became a point of discussion, it took a while before anything changed. In 2006 the High Council of Justice issued a critical opinion, highlighting some of the issues surrounding such judges’ institutional position and suggesting reforms. ^{Footnote 62} In 2011, it published a follow-up opinion because nothing had changed in the five years since. ^{Footnote 63} Overall, the matter seems to have been regarded with a large degree of pragmatism. Substitute judges were simply necessary to keep the judicial system afloat; ^{Footnote 64} they provided cheap labor to chisel away at the mountainous judicial backlog. ^{Footnote 65} However, in 2013 things started moving, after an opinion issued by the GRECO. ^{Footnote 66} In its fourth evaluation round concerning the prevention of corruption in respect of members of parliament, judges, and prosecutors, the GRECO was very critical of the use of substitute judges in the Belgian judicial system for the reasons described above, and recommended avoiding their use as much as possible or otherwise reforming their appointment and employment conditions, and subjecting them to effective supervision and sanctions. ^{Footnote 67}

While the opinions of the High Council of Justice yielded no results, the GRECO report did manage to get things into motion. It was ultimately in a 2019 law (colloquially known as the GRECO Act) that the legislature attempted to respond to the GRECO’s remarks. The legislature noted that substitute judges were still indispensable for the smooth functioning of the judicial system, but said that measures should be taken to strengthen public trust in the institution of substitute judges. The law changed many aspects of the position of substitute judge, the most important of which are; the requirement to pass an exam in order to be appointed; the express requirement that substitute judges do not have a permanent function; the codification that substitute judges cannot sit in cases in which they have been directly or indirectly involved as lawyers; the prohibition on substitute judges acting as members of the public prosecutor’s office; and requiring the High Council of Justice to write a code of ethics for (substitute) judges. ^{Footnote 68} With these requirements, the legislature tackled most of the problematic aspects of the use of substitute judges that were flagged by the High Council of Justice and the GRECO.

In a 2021 follow-up report, the GRECO indeed found that the new law satisfactorily implemented its recommendations. ^{Footnote 69} Nevertheless, the new law was challenged before the Constitutional Court, one of the arguments being that the possibility of lawyers sitting as substitute judges violated the right to an independent and impartial judge. In its judgment the Court stated that cumulation of the roles of judge and lawyer should be avoided as far as possible, because there is a real risk of a confusion of functions, which raises doubts about the independence and impartiality of the tribunal. Yet, it followed the case law of the European Court of Human Rights ^{Footnote 70} and stated that the mere fact that a lawyer is a member of a court does not suffice to raise objective doubts about the court’s independence and impartiality. A potential impartiality issue should always be examined in concreto. The Constitutional Court then went on to recall that the 2019 law was essentially introduced to strengthen the procedural guarantees surrounding the use of substitute judges and the public’s trust in the judicial system. Given the fact that substitute judges were necessary to safeguard the right to a trial within a reasonable time and the extra guarantees that were established, the new law did not violate the right to an independent and impartial tribunal. ^{Footnote 71}

In general, the GRECO report and the opinions of the High Council of Justice thus gave rise to a legislative reform that substantially changed the framework regarding substitute judges in Belgium. The reform (re)acted against many of the rather unseemly practices that had come to surround the broad and systematic use of such judges. In general, the legislative reform strengthened the institutional position of substitute judges and created extra safeguards for their objectivity and impartiality. In doing so it helped to further formalize this part of the Belgian judicial system.

III. The Secondment of Judges

It was pointed out above that the Belgian judicial system pays close attention to judicial independence. The independence of the Belgian judiciary is indeed seen as a general principle of constitutional importance for all courts and tribunals, ^{Footnote 72} and is on the whole well respected in the legal culture. Generally speaking, attention is paid to the fact that sufficient distance remains between the judiciary and the political branch. In this respect, Article 155 of the Constitution, for example, dictates that judges may not accept any remunerated mandate from the government.

There is, however, a noticeable exception to this required distance between the branches of power. Article 327 of the judicial code prescribes that the Minister of Justice may, with the permission of the prosecutor general, second magistrates of the public prosecutor’s office—meaning that traditional judges are excluded—to work in the service of the King or at one of the federal ministries. This became somewhat of an established and widely used practice in Belgium. One of the arguments in its favor was the undoubtedly useful experience and expertise that magistrates from the prosecutor’s office brought to the administrative offices of the ministries. ^{Footnote 73}

Yet, the secondment of magistrates to the ministries also raises questions, mostly about their independence and impartiality. ^{Footnote 74} The law states that secondment to a ministry may not be for longer than six years, after which the magistrate automatically returns to his or her former function. ^{Footnote 75} During the secondment, the magistrate statutorily and deontologically continues to function as a magistrate. While seconded, magistrates thus perform a dual function: on the one hand they are part of a ministry, which is a political function under the hierarchical control of the competent minister, and on the other they remain magistrates, who should be independent.

The institution of seconded magistrates in Belgium was placed more in the spotlight in 2008 with the so-called Fortisgate scandal. Simply put, that involved the Belgian bank, Fortis, which, in the slipstream of the 2008 banking crisis, was nearing bankruptcy. In a bid to save the bank, the Belgian, Dutch, and Luxembourg governments decided to sell Fortis to the French bank, BNP Paribas. This was to the great dismay of the shareholders, who saw the value of their stocks evaporating because of the sale. Some shareholders started interim relief proceedings before the Belgian courts in an attempt to stop the sale from happening. ^{Footnote 76}

The case would ultimately go from the first instance court via the court of appeal all the way to the Court of Cassation. While it has raised a multitude of thorny legal questions for the Belgian judicial system, ^{Footnote 77} the case is infamous for the relationship between members of the executive and magistrates. At all stages of the proceedings there have been informal contacts between actors from the judiciary and from the executive. For the purposes of this article it is most important to note that in the first instance court there had been contacts between seconded magistrates, working at various ministries, and members of the public prosecutor’s office, including the substitute prosecutor who was assigned to issue an opinion in the case.

The Fortis affair caused a storm within all branches of power, and ultimately even led to the fall of the government. While there are many different aspects to this story, it also cast a spotlight on the problematic position of seconded magistrates. Both the parliamentary commission of inquiry that was established to investigate the Fortis affair and the High Council of Justice addressed the matter in their reports. Both bodies were critical of the informal contacts that could exist between the prosecutor’s office and the executive, and mentioned that personal relationships, friendships, and political affinity could lead to interventions that could damage the appearance of the independence and impartiality of the judiciary. ^{Footnote 78} The parliamentary commission even concluded that the contacts between the members of the ministries and the prosecutor’s office had endangered the principle of the separation of powers. ^{Footnote 79} While it was acknowledged that seconded magistrates might bring valuable expertise, both bodies suggested that the system of secondment should be curtailed. Whereas the parliamentary commission argued that magistrates should only be seconded to ministries where their work would be indispensable for the policy of the minister, the High Council of Justice suggested that they should be seconded to the Ministry of Justice alone. In its 2013 report the GRECO also touched upon the issue and took note of various controversies surrounding seconded magistrates. ^{Footnote 80} It urged the Belgian state to put into practice proposals that would limit the use of secondment. ^{Footnote 81} The Minister of Justice at the time of the Fortis affaire also stated later that seconded magistrates could lead to abuse or at the very least tricky situations. ^{Footnote 82}

Despite the attention which the institution of seconded magistrates received in the wake of the Fortis affair, it did not immediately disappear. In the next government, several ministries besides the Ministry of Justice, including that of the Prime Minister, still counted seconded magistrates from the prosecutor’s office among their ranks. ^{Footnote 83} Nevertheless, the opinions of the High Council of Justice and the parliamentary commission did seem to initiate change. In 2014, a legislative amendment was suggested which would enact the proposals of both those institutions. In this respect, the secondment of magistrates will be allowed only to the Ministry of Justice or to the Ministries of the Prime Minister, Vice-Prime Minister or the Minister of the Interior, as long as this secondment will “undeniably achieve an input of expertise”. Furthermore, a secondment will need the permission of all five prosecutors, instead of only one prosecutor general. Lastly, a deontological code specifically for seconded magistrates had to be established. ^{Footnote 84} While the suggested law was not voted on in parliament before the elections, it was reintroduced in unamended form in 2019 by the current legislature. ^{Footnote 85}

Thus, for the secondment of magistrates as well, it is clear that parliament has taken the first steps towards legislative reform. The Fortis affair and the opinions that were drafted in its wake have prompted a legislative amendment that—if passed—will greatly limit the ability to second magistrates and surround it with more safeguards.