Dear all,
Welcome to another DigiRights Project newsletter. It has been sometime between newsletters, as we on the project have been diligently concluding both our national empirical studies and the European study, as well as beginning to discuss and draft our project proposals. In achievement of these, the project partners met (with some joining us online) in-person on 7–8 March 2024, at the University of Göttingen, and again on 6–7 June 2024, at the University of Tartu. Our thanks to our wonderful project partners in both Göttingen and Tartu for these superbly organised meetings. As we noted last year, these periodic in-person meetings continue to prove that some in-person engagement is an important aspect of any consortium project. This has been especially so with regards to the drafting of the project proposals and guidelines, the discussions for which took place over an intense, but immensely productive 1.5 days in Tartu last month. Our final in-person project meeting is set to take place in late October, where we hope to finalise these proposals and guidelines.
The Project’s findings—including the aforementioned proposals and guidelines—will be presented at the DigiRights Final Conference, to be held on 30–31 January 2025, at the KU Leuven. The Call for Papers for the Conference is already out, and we would encourage you to circulate this amongst your network(s). More information about the Conference can be found on the Conference’s dedicated page on the DigiRights website.
For now, let us pivot to Belgium, where the remainder of this newsletter will provide an update on the developments therein—the legal system in Belgium is currently undergoing a digital transformation as initiated by the Justice FPS (Federal Public Service). Between December 2023 and April 2024, the Belgian parliament adopted four acts that contribute to the digitisation of the justice system, two of which are particularly relevant to the DigiRights Project.
This concerns, first, the Act of March 27, 2024 which contains provisions on the digitisation of justice (Ibis, Digitisation Act). The headpiece of this comprehensive law is undoubtedly the introduction of a digital file in criminal cases. Until recently, procedural documents could only be produced and signed on paper. Although in practice paper procedural documents have been increasingly scanned and consulted online (as part of the JustScan project), these “dematerialised” versions did not constitute official records. The Digitisation Act, however, inserts Article 568 of the Code of Criminal Procedure, which henceforth allows procedural documents to be produced not only in material, but also in dematerialised—i.e. digital—form. As procedural documents can be produced ab initio in dematerialised form and signed with an electronic signature, there is no longer a need to scan paper documents. Furthermore, all dematerialised documents—regardless of whether they were dematerialised ab initio or later on—constitute official documents that form part of the digital file.
Parallel to the introduction of the digital criminal file is the creation of the Central Register of Criminal Files—as foreseen by the inserted Article 569 of the Code of Criminal Procedure. The Central Register is a computerised database that centrally records and stores the above dematerialised criminal files. In addition to the processing of the data contained therein, the Central Register enables the access to said data by electronic means. Magistrates, clerks' offices, prosecutors' offices and police departments, among others, can access the Central Register to deposit and consult relevant data. If their criminal file is dematerialised, also the parties involved and, where appropriate, their lawyer or representative can consult the criminal file via the Central Register instead of having to go to the court registry. Thus, since the entry into force of the Digitisation Act on April 1, 2024, there is finally a statutory possibility for defendants to exercise their right to access their case file remotely.
Shortly after, the ‘digital transformation plan’ of the Justice FPS reached a second milestone. With the adoption of the Act of April 25, 2024 on the organisation of hearings via videoconferencing in the context of judicial proceedings, the Belgian legislature created a statutory possibility for defendants to exercise also their right to be present—and in that, their right to legal assistance and their right to interpretation and translation—remotely. Subject to specific derogations, the Act provides a general framework for the use of videoconferencing in criminal cases, pre-trial detention cases, cases on the execution of sentences and cases on execution of holding measures. According to the soon to be introduced Article 560 of the Code of Criminal Procedure, videoconferencing can be organised: i) on the initiative of the court (with respect to certain types of hearings) and with the defendant’s consent; ii) on the request of the defendant, or; iii) on the order of the court, without the defendant’s consent when there is an epidemic emergency or a serious and concrete risk to public safety. Whenever the defendant who is participating remotely enjoys legal and/or linguistic assistance, the lawyer and/or interpreter can each take place in either the court room, the same room as the defendant, or in another room that the court considers suitable (new Article 560 §9 CCP). As a result of this choice, it is possible that the defendant and their lawyer, and/or interpreter, are attending the hearing from different places. The Act, moreover, allows the members of the court to join via videoconference in certain, well-defined circumstances (new Article 557 CCP). Despite its broad scope of application, the Act emphasises that the technological possibilities will not detract from the general rule that hearings will take place in the physical presence of all relevant parties in the court room (new Article 556 §2 CCP). Nonetheless, its entry into force on September 1, 2024 will mark an important—if not the most important—step in catching up with the digital backlog in Belgium.
Ashlee Beazley and Rani Van de Gaer
KU Leuven
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