Challenge requests in criminal cases: Procedure and recent changes
In recent months, challenge requests have been filed in numerous major drug cases with a record of four challenge requests on Jan. 18, 2024 in the Antwerp-Limburg jurisdiction. This causes delays in the proceedings each time, leading to dissatisfaction among those involved who want the case to be heard. The Minister of Justice wants to prevent the dilatory use of challenge procedures and has therefore had an adjustment made to the aforementioned procedure, which was approved on May 8, 2024. We will discuss what the challenge is and what changes were made to this procedure.
What is a challenge?
Everyone has the right to have their case heard by an independent and impartial judge. However, when there is doubt about the impartiality of a judge, one can ask a judge to withdraw through a challenge request. The challenge request must specifically include reasons that show the appearance of bias on the part of the judge, known as the "ground for challenge.
If the judge agrees with the ground for challenge, the judge should withdraw and another judge will hear the case.
If the judge does not agree with the challenge, the Court of Appeals will rule on the challenge within eight days, after the parties concerned have been summoned and allowed to present their observations. If the Court of Appeals rules against the challenging party, this ruling is still subject to an appeal in cassation.
In any case, a challenge in a case entails the suspension of all transactions and judgments from the moment of challenge until the completion of the entire challenge procedure.
The changes
The amendments can be found in the Law of May 15, 2024 containing provisions on digitization of justice and miscellaneous provisions.
First, it adds to Article 837 of the Judicial Code that in the case of a challenge request, the judge can already set a subsequent hearing date regardless of the outcome of the challenge proceedings. This would ensure that the parties do not have to be summoned or called again. That the latter requirement for summons or subpoena is now explicitly bypassed, in turn, has the effect that the often lengthy subpoena periods applied in practice no longer apply and it does not take an unnecessarily long time before the case comes back to trial.
A second change means that the party filing a challenge must provide an address of residence in Belgium. If one lives abroad, the office address of counsel can be used in that case. In practice, should a new summons be issued, which is no longer required due to the change in the law, the extended summons period for persons living abroad will no longer apply anyway.
The amendments thus aim to shorten the wrecking procedure in practice, allowing the case to be brought back before the fact-finding court more quickly.
At the same time, this change in the law is noteworthy considering that in the past, the law did not in any way require that subpoenas be renewed. This was a common practice rather than a legal requirement.
Simpler would thus have been to draft and send a circular or simply adjust the practice.
One element that is in any case positive about the law of May 15, 2024: the right of challenge as such is not affected, despite the premised but unfounded hypothesis that lawyers in large drug cases use the figure of the challenge merely to needlessly delay proceedings.
