Judicial Independence in Belgium
The independence of the judiciary lies at the core of Belgian thinking about the rule of law.1 Despite its fundamental character, it has re-mained an unwritten principle of constitutional law for more than 160 years. The written Constitution, as adopted when Belgium gained independence in 1830, did not make any literal reference to the independence of the judiciary. The only relevant provision seemed to be Article 40, the basic provision underlying the organization of justice, which stated (and to date, still states) nothing more than “[t]he judicial power is exercised by the courts”. Some other provisions of the Constitution, however, have always contained implicit applications of the principle of independence to more concrete situations. For instance, Article 152 contains the principle of lifelong tenure; Article 154 states that the salaries of members of the judiciary and the Prosecutor’s Office are determined by Act of Parliament; and Article 155 deals with the positions incompatible with the office of judge. Notwithstanding the absence of an explicit legal provision, the principle of judicial independence has always been considered to have supreme normative value in Belgium. Any doubt that could have risen about that, was dispelled when the concept of judicial independence was qualified by the Court of Cassation as a “general principle of law”,2 which under Belgian law is considered a category of binding sources of law. The binding character of that principle also stemmed from Article 6 of the ECHR and Article 14 of the ICCPR, two provisions in human rights instruments to which Belgium is a party and which are self-executing in the Belgian legal order.
KeywordsAdvisory Council Public Prosecutor Judicial Decision Executive Branch Royal Decree
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