Today Knack.be published my demand to the European Network of Councils for the Judiciairy (ENCJ) that blacklisted me in its 2014 report (Appendix F, p. 99) as a risk for the independence of the justice system.

For the Knack article, click here.

For the ENCJ report, click here.

My open letter reads as follows:

Open letter from a former judge to the European Network of Councils for the Judiciary (ENCJ) & Belgian High Council of Justice (HCJ)

Dear and distinguished former colleagues,

As I figure only anonymously as “a retired judge in Belgium” in the ENCJ Report 2013-2014, adopted in the Rome meeting of June 13 2014, it might be useful for some to present myself.

After my Law and Criminology degrees, I practised as a lawyer in Bruges between the autumn of 1976 and the spring of 1987. Just to take you back in history: in 1981, I was one of the very first to computerize my office but I do now more with my MacBookPro than with the +€20.000 hardware then. Cell phones did not exist: my car was one of only 10.000 equipped with the Belgian “mobilophone”. A fax still was around €4.000, so I stuck to my noisy telex.

Of course, those technical details only illustrate quite different times, where our justice system was not yet in the heart of daily media attention, as it is now.

But already at that time, some were critical and impatient about how justice was handled (or not).

As I was in 1985-1986 also national president of the Flemish young liberals (PVV-jongeren), I organised congresses on that topic. In the weekly KNACK of February 1986 I pointed to several causes of the “Sorrow Of The Tortoise’ (title of the interview, as a symbol of slow justice): the lack of modern techniques as computers, but also the failing recruitment of dynamic and empathic magistrates.

When in 1987 for purely private family reasons, I quit my lawyer office and politics to become a Justice of the Peace, my appointment was of course – as all others – a political one. The reigning ambiance can best be illustrated by the editorial column of the local weekly ‘De Weekbode’, just days before King Baudouin signed my nomination in his Spanish residence of Motril on April 15th 1987: “Nominations for magistrates are used to thank party members for services rendered (...) In the local CVP (Christian Democrats) fierce opposition arose against this candidate. Although Jan Nolf studied at a Catholic College, het local CVP top knows Jan Nolf is a convinced agnostic. This nomination is not acceptable in a city that has a long Christian history. (...) However, last Thursday, Justice Minister Jean Gol, himself a liberal and non-Christian, signed the nomination of Jan Nolf. But he is not a Justice yet, as the King has the last word....”.

Jumping almost 25 years later: on August 31rd 2011, my last day as a magistrate, one of my farewell-interviews was published... in het national edition of ‘Kerk en Leven’, the weekly of the Flemish Catholic Churches. They had insisted on interviewing me about my long engagement for a more conciliating way of rendering justice.

‘Conciliation’ was a project that I started in de mid nineties and – on top of human considerations – economised about €25.000 a month (!) in my district alone. You can still see those statistics on my blog justwatch.be on the page ‘Conciliation’. In my last full year (2010) this strategy avoided more legal procedures (1744) than I handled in my first year in office (1737). So, ironically, if there would not have been the extra workload in that quarter of a century, I would have ended in a court without formal litigation...

To conclude about my career as a magistrate: I certainly was one of the first and few to know something about (1) ICT technology and (2) other techniques to render justice faster, with less costs and more human dignity. Contrary to the press however, no interest at all in this expertise was shown from the top of the pyramid of the Judiciary. So, when in 2011 politics decided to cut the very heart out of my job as a Justice of the Peace (family law conflicts between partners), I thought I might be more useful for my country by writing about justice, than by rendering it.

As the website I built for my court was not continued, I transferred the FAQ and public information from it to my law blog justwatch.be as to help people find their way in the labyrinth of law.

For 3 years now, I am explaining the problems judges and citizens face in columns and comments in radio and television programs, newspapers, weeklies, on-line platforms, legal reviews and 3 books till now. The Belgian Parliament asked me last year a written advice in the debate upon legislation on Municipal Administrative Sanctions. The Rule of Law and my concern for the poor, the fragile and the minorities were always at the centre of my concern.

Media interest in those topics turned out to be surprisingly high but I salute the courage of my editors to publish my columns and comments, defending for example the decision of the tribunal freeing Michelle Martin (ex wife of Marc Dutroux), against all populist criticism.

I must admit all this did not make my life easier – but very interesting nevertheless.

So I certainly do not complain, and anyway, I still can quit any day and start a real life as a pensioner: playing golf of pétanque.

But some weeks ago, I made a stunning discovery.

That my opinions were not shared by some former colleagues and officials, this, of course, I knew. That my analysis is often painful for the powerful, I admit. That many of my writings were sharp, I also must agree upon that. That even my Law manuals are not free of pointed criticism is true.

On Twitter with #justitiewatcher (justicewatcher) I’m not afraid of irony and sarcasm myself and on my Law Blog my theme is clearly announced: “Questioning Justice”.

Opinion makers must deal with counter criticism every day: that’s the rule of the game. Yes, one must even live with insults and hidden threats – but I lived with that as a judge too. And anyway, many signs of appreciation largely made up for all that.

However, I never expected to be depicted as an enemy of justice itself. And certainly never expected this from an institution that reports on independence and accountability of the Judiciary.

On June 13th 2014, the ENCJ adopted in Rome its annual report. One of the objectives included “the identification and evaluation of the current risks tot the independence of the Judiciary of Member States and Observers”.

Those risks are summarized in Chapter VII (p. 39 -44) of the report. Appendix F (p. 99 – 100) identifies 10 “examples of risks faced by judiciaries in specific countries”.

In all cases “attacks” on judges are reported, “very worrying incidents”, “incorrect portrayal”, “undue pressure”, “threats” and “threatening behaviour” by politicians or the media.

Between those alarming examples in Poland, Slovenia, Romania, Ireland and the United Kingdom, I discovered ... brave little Belgium: “In Belgium, a retired judge has started working for the press, and repeatedly criticises the Council for the Judiciary and the justice system. His attacks are based on real situations in which the justice system has, for example delayed, but are fuelled by his intimate knowledge of the inner workings of the system”.

The last sentence reads as a kind of regret that the “retired judge” did not withdraw in silence to the beaches of Benidorm, but insists on sharing his experience with the media.

The problem seems not so much the (very common) criticism on trials where justice was delayed, but the “attacks” on the Belgian High Council of Justice (HRJ) and “the system”. Criticism that transcends the anecdote and focuses on system failings is indeed far more fundamental – and can thus be seen as more dangerous for the interests of those who command that system or are interdependent with it.

To avoid any misunderstanding, I asked the president of the Belgian HRJ, Mrs Ria Mortier by mail of July 19th 2014 if my reading of the report was right: “This is not meant as a compliment. Of course, I am not looking for compliments, but I am rather astonished to read in what coloured context my work is placed”.

The HRJ president was so kind as to answer me already the next day, arguing she did not take part in the discussions of this particular ENCJ group, which was attended by the HRJ administrator, mr. Jean-Marie Siscot. However, admitting my “impression can be caused by the place this quote is placed”, she ventured “the text is rather descriptive and not meant to be negative towards you as a person”.

I deliberately chose not to interrupt the holidays of Mr. Siscot for further questions. Indeed, mr. Siscot is not an elected member of the HRJ and is only on its payroll in an administrative function. That the responsibility for this disturbing conclusion of an international institution on behalf of the Belgian HRJ would be relegated to an employee – of whatever rank – is worrisome enough as such.

It reflects exactly what recently noted De Juristenkrant (Journal of Jurists) in my interview of April 23rd 2014 about the powerful mini-bureaucracy within the HRJ. By the way: an interview the HRJ tried to forbid.

But I confess: the Belgian HRJ has been a subject of my many criticisms.

On my Law Blog justwatch.be, there is even a quick link #HRJ, so there is no secret. Also my opinions in French on the site of Mediapart (also in Knack, VRTDeRedactie, LeVif/L’Express, L’Avenir, La Libre Belgique, De Juristenkrant), deal with the subject that became the nightmare of the 4th mandate of the Belgian HRJ.

Just a résumé of what I wrote about:

-the error in the election of the Flemish magistrates of the HRJ on March 2012, well covered up. Citing my LeVif/L’Express column of September 18th 2013: “A la question parlementaire de Jean-Marie Dedecker, la ministre Turtelboom répondit plutôt de manière inquiétante que rassurante « qu’aucune législation n’existe afin de veiller à la régularité des opérations électorales, de faire des déclarations concernant des irrégularités suspectées ou de prendre des mesures pour régulariser une situation irrégulière». Ce texte de la ministre était à la lettre, celui du CSJ. La prochaine fois, il faudra donc faire appel à des observateurs ONU car le CSJ est donc au-dessus de la loi, même de toutes les lois belges. Cela a un nom : une république bananière”.

-the illegal vote of the Belgian Senate, appointing the Francophone non-magistrates. Citing my LeVif/L’Express column of October 8th 2013: “Depuis les premiers articles au sujet de l’illégalité d’au moins la composition francophone du CSJ et le diagnostic juridique du professeur Englebert dans la revue Avocats.be il n’y a pas l’ombre d’un doute que le Sénat a enfreint à la règle essentielle de l’art. 259bis-2,§2 Code Judiciaire qui prévoit que par collège linguistique, au moins 5 membres non-magistrats doivent être élus parmi les candidats présentés par les universités et le barreau. Et le document du Sénat 5/1649/1 du 19 avril 2012, comparé au résultat du vote du 28 juin 2012 (Document Sénat 5-69) prouve bien qu’il n’y en a que 3 dans le collège francophone. Il en manque donc 2. Le problème ne se réduit pas à un petit calcul : cette condition de la loi était selon les parlementaires de 1999 le ‘minimum minimorum’ pour éviter que la politique fasse un appel à des non-magistrats individuels pour représenter leur petite politique politicienne dans le fonctionnement du CSJ, surtout dans les nominations”.

-the illegal candidacy of Mrs Michèle Loquifer, who became president of the Commission for nominations and would have been Belgian HRJ president, if not annoyed by penal procedures about alleged falsification during her tenure of Nivelles Court President, and finally suspended from the HRJ. Citing my Mediapart blog of October 29th 2013: “la candidature de Mme Loquifer était irrecevable au 5 mars 2012 (et 19 avril 2012). Sa qualité de non-magistrat (acquis seulement depuis le 1 mai 2012) à la date du vote du Sénat du 28 juin 2012 n’avait plus aucune importance”.

-the illegal nominations by this HRJ, as commented by legal experts during the colloquium of the Association Syndicale des Magistrats (ASM) in Brussels on October 17th 2014 and reported on my Law Blog justwatch.be: “Maître Eric Lemmens, spécialiste du droit administratif: “(…) La désignation par le Sénat des membres non-magistrats du CSJ s’apparente à un acte administratif. (...) Un recours par un candidat évincé contre une nomination a des chances raisonnables de succès. Il ne faut pas spéculer sur le temps. Dans le cadre des nominations de chefs de corps, le Conseil d’Etat pourrait même opter pour la suspension en acceptant la possibilité d’un préjudice grave et irréparable (…) ».

- the moral consequences, reported at the same colloquium by professor  Jacques Englebert (auteur de l’article dans Avocats.be ) :

« (…) Le mot ‘illégalité’ fait mal. Pourtant, respecter la loi n’est pas une charge démocratique insupportable pour le Sénat. (…) Le CSJ est victime de cette illégalité commise par le Sénat mais en est aussi complice. Il doit démissionner pour retrouver sa légitimité » (Note: thèse soutenué également par Christine Matray, conseiller honoraire à la Cour de cassation, dans la dernière édition du Journal des Tribunaux)

- the conclusion of the ASM-president, judge Manuela Cadelli on the same Brussels colloquium of October 17th 2013: “ Lorsqu'il est prétendu que la démission des membres du CSJ risque d'être un "drame" compte tenu de l'ampleur du travail restant à accomplir, je réponds que la délégitimation de l'institution, la perte de confiance qu'elle suscite et le chaos juridique -au niveau des nominations- qui s'annonce si l'on en croit l'analyse qu'a faite Eric Lemmens des chances de recours individuels peuvent également être qualifiés de dramatiques! Et que donc, ils ont en main un arbitrage à assumer...

La Justice belge peut-elle se permettre le chaos juridique qui s’annonce ?”

Thus, I admit: some nervousness on the part of the Belgian High Council for Justice (HCJ – HRJ - CSJ) is understandable.

It should be the more so, reading your last ENCJ report.

Since many years indeed, I am pleading for a different justice system than the one that failed and fails.

A quarter of a century, eyeball to eyeball to desperate seekers of justice, and looking “behind the façades of Flanders” (in the words of my political predecessor, Guy Verhofstadt) changed the man I once was.

Now impatient as always, but more worried than ever, I am glad to repeat many quotes of this ENCJ report: “Independence must be earned. It is by no means, automatic. The best safeguard of independence is excellent and transparent performance. (...) In order to be open and transparent, the Judiciary should maintain an open dialogue with the media, explain its practices as well as decisions in individual cases. The Judiciary should also have an educational role in explaining the population the role of the Judiciary in society. (...) Another approach to accountability is to open an organization to external review or evaluation. (...) Transparency is an essential factor in the trust that citizens have in the functioning of the judicial system and is a guarantee against the danger of political influence or the perception of self-interest, self-protection and cronyism within the Judiciary”.

This was exactly my message in all my writings.

So when I showed in recent weeks some friends, (ex-) colleagues, and journalists the infamous Appedix F, they encouraged me to publish this astonishing statement of ENCJ as a Honourable Mention: the ultimate proof that my work as critical observer of the justice system is as necessary as ever.

At least, if ENCJ would respect some logic with the conclusion of its own report as quoted here it would correct Appendix F by dropping the charge against this “retired Belgian judge”.

Associating my writings with the populist media or political demagogues I clash with almost every day, is not only wrong but also an unacceptable insult.

It reads as a blatant injustice not only for me but also for all those who question the existing justice systems to achieve more justice.

Dear and distinguished former colleagues,

Here, I rest my case.

Jan Nolf, Honorary Justice of the Peace