Belgian Constitutional Court strengthens access to justice
The Belgian Constitutional Court ruled that the right of access to justice requires the writ of service of a judgment to state the right to appeal, the time limit for bringing such an appeal, and the name and address of the appeal court.
We assess the judgment and its impact below.
1. Service of a judgment
Service refers to the delivery of an original or a copy of an act of justice, including judicial decisions, by bailiff’s writ.
A judgment can only be enforced after it has been served. The purpose of such service is, on the one hand, to ensure that the losing party is made aware of the judgment. On the other hand, the service initiates the time limits for bringing an appeal.
2. Principle since 1967
Since its adoption in 1967, the Judicial Code specifies the content of the writ of service. The mandatory entries are listed in Article 43 of the Judicial Code.
However, Article 43 contains no obligation to include in the writ of service the right of appeal, the time limit for bringing an appeal, and the name and address of the appeal court.
3. Access to justice
Every legal subject is generally entitled to a right of access to justice, which is an aspect of the right to a fair trial, and means any person can use the judicial system to resolve legal problems and to defend themselves and their interests.
This right may be subject to conditions of admissibility. However, it is infringed if the arrangement constitutes any kind of barrier preventing the individual from having his or her dispute decided by the competent court.
Service by bailiff’s writ is the general rule for the communication of acts of justice. Nevertheless, the legislature has provided an exception to this rule, which is notification by court letter.
Notification is the delivery of an act of justice in original or in copy, through the postal services, or by electronic mail.
As opposed to service by bailiff’s writ, the Judicial Code requires that a notice by court letter indicates the right of appeal, the time limit for bringing an appeal, and the name and address of the appeal court.
5. Discrimination (the judgment of 10 February 2022)
Although the Court has clarified that the legislature was allowed to set, without discrimination, additional requirements for notification, the question considered here was whether the absence of these requirements in the general rule of service (through a bailiff’s writ) might discriminately impede access to justice.
To ensure the right of access to justice, it is important to inform the litigant as explicitly as possible of his/her rights regarding appeal and the relevant time limits.
According to the Court, the indication of remedies is an essential element of the general principle of due process and the right of access to justice.
The Court has therefore considered that the lack of communication about the right to appeal, the time limit for bringing an appeal, and the name and address of the appeal court in the service of a bailiff’s writ is discriminatory.
The Court has found that Article 43 of the Judicial Code violates Articles 10 and 11 of the Constitution, read in conjunction with Article 6 of the European Convention on Human Rights and the general principles governing access to justice.
As a result, writs of service will have to state the right to appeal, the time limit for bringing an appeal, and the name and address of the appeal court.
The Court has not set out a transition period: writs of service that do not contain the required information are valid until the legislature intervenes, and in any case until 31 December 2022.
If you would like further information about this legal development, then contact us at Alexander.Hansebout@altius.com.
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