Research mission - Law Enforcement

Research Programme of the Law Enforcement Research Group

1.1         General description and mission

The research programme of the Law Enforcement group spans several branches of law such as  (international and European) criminal (procedural) law, civil procedure, labour law, social security law, contract law, tort law and private international law. The scope of the research group’s programme also encompasses a number of metalegal disciplines such as psychology of law, sociology of law, criminology and safety sciences.

It is the research group’s aim to contribute to the critical and intra/interdisciplinary scientific research of the developments and challenges of the abovementioned disciplines.

1.2.        Core question

The focus of the research revolves around a single core question:  

“How can sustainable compliance with private, criminal and social rules of law be achieved?”

By sustainable compliance with various rules of law we mean compliance that contributes to

-        maintaining the personal relationships between the parties in civil cases in the broad sense

-        protecting weaker parties

-        restoring the imbalance that was created by a criminal offence, while also serving the interests of society as a whole by enhancing people’s trust in the legal order

-        all of this in a multi-layered and diverse context

-        within which it is essential that means of compliance are accurate, effective and coherent

The notion of accuracy (i.e. exact, precise, meticulous) makes it possible to determine whether a proposed legal regulation – whether substantive or procedural is legally correct and proportionate to the objective pursued.

Optimal law enforcement also depends upon the extent of  effectiveness (i.e. efficiency) of the proposed rule. This implies that rules are foreseeable and well known to the public. Research on the perception of the judicial actors (the courts,…) on the one hand and the legal “customers” on the other as well as the issue regarding the desirability of certain legal regulations are central in this regard. Moreover the desirability of State intervention in the relationship between citizens should be examined. To what extent are citizens able to self-regulate and from which point should the State intervene? When do rules of supplementary law suffice, when are rules of mandatory law appropriate and when is criminal enforcement needed?

Although existing legal regulations may be accurate, optimal law enforcement also requires that the various rules of law are coherent (i.e. consistent) and that they do not conflict with each other.

2. Research Programme

2.1. Lines of Research

The group’s research programme covers two main lines of research:

·        appropriate processes in view of sustainable compliance with various rules of law

·        appropriate sanctions to achieve sustainable compliance with various rules of law.

To study compliance and the interaction between rules and behaviour requires both legal and empirical analysis.

2.1.1. Appropriate processes to achieve sustainable compliance

The first line of research revolves around the question of how to determine an appropriate process to achieve sustainable compliance.

Conflicts and criminal acts are often a mixture of both legal facets and personal differences. They also typically affect not only the people directly involved, but also their social networks. Sometimes they may affect society as a whole.

Research is conducted into the best way to deal with different types of conflicts and to offer processes that can contribute to sustainable compliance with rules of law. Starting point is to encourage parties to solve their dispute themselves. Nevertheless is the intervention of a judge sometimes desirable and sometimes necessary for the protection of the parties and society.

In seeking a solution to a conflict, one could rely on a plethora of options, including but not limited to:

·        ethical standards;

·        safety and prevention;

·        early dispute resolution;

·        (collaborative) negotiation/mediation/conciliation;

·        arbitration;

·        civil proceedings;

·        criminal proceedings.

Research is conducted into the actors that can play a role in this respect, such as judicial but also extra-judicial actors, including labour organisations and social inspection.

The group’s research programme focuses on studying characteristics of different process options and their suitability in relation to various kinds of conflicts (e.g., criminal case, commercial dispute, consumer dispute, labour dispute) as well as in relation to various stages of a conflict (pre-dispute, dispute and implementation of a solution). The group explores how best to reduce criminal behaviour and assesses criteria for choosing a process for reaching a solution to a specific conflict.

Also important in this respect are the fundamental values guaranteed within the different processes. In analysing different processes, the group examines whether they allow achieving sustainable compliance with due respect to the rights of the parties and so that they enhance people’s trust in the legal order.

2.1.2. Appropriate sanctions to achieve sustainable compliance

The second line of research revolves around the question of how to determine an appropriate sanction for violation of law to achieve sustainable compliance. Within this research line, the group’s research programme focuses on determining sanctionable conduct, examining the types of sanctions that exist (e.g., civil, administrative, criminal), characteristics of various types of sanctions, the kinds of violations that they are suitable for, the criteria that should be used to choose a specific sanction (e.g., private interests, public interests, imbalance of power between the parties), and aspects of the sanction’s execution.

2.2. Research themes

The research programme of the  Law Enforcement Research Group covers four research themes:

-        Alternative dispute resolution

-        Legal protection

-        Enforcement  mechanisms

-        Safety and prevention

2.2.1 Alternative dispute resolution

Extra-judicial settlement of  disputes (negotiating, mediation, conciliation, arbitration, binding settlement by third parties, ODR,…) is a crucial component of sustainable compliance. The letter A in Alternative Dispute Resolution is no longer appropriate  unless it refers to Appropriate Dispute Resolution. There is an increasing realisation that  proper interaction between the classic judicial dispute settlement and other forms of dispute resolution is necessary. Both the European and the Belgian legislature are developing a number of initiatives to promote extra-judicial dispute settlement. This evolution raises a number of questions. How can ADR contribute to a high-quality administration of justice? To what extent can an extra-judicial dispute settlement process be made obligatory? How and to what extent should the government regulate/facilitate extra-judicial dispute settlements? What is the role of the courts in this evolution, does the judge’s task evolve in the direction of someone who resolves disputes  (e.g. mediation by magistrates) or should he continue to be someone who tries to settle disputes. To what extent, in more general terms, is the use of a magistrate advisable or necessary, in particular as a safeguard against arbitrariness? What role can extra judicial dispute settlement play in the ongoing digitalisation of society? And what about the enforceability of extra-judicial decisions and agreements (including at PIL level)?

In addition, new forms of enforcement are examined, such as forms of enforcement by employees’ and employers’ organisations (whether or not directly). In this respect the question arises as to the relationship with enforcement by the authorities. Do social inspection agencies play an important part etc.? In addition, the absence of legal protection will be assessed in terms of higher standards.

2.2.2. Legal protection

Sustainable compliance requires that there are procedures within which fundamental guarantees are observed. This proper administration of justice ensures that the procedure is conducted in an optimal way and that parties have equal chances. This is essential to maintain trust in the courts. Sustainable compliance also requires that judicial decisions are executed.

The proper administration of justice is regulated by complex set of rules. This complexity is due to different factors amongst which the multilayered contexts of the law. Research is therefore conducted taking into account the relevant international and European rules and the case law of the European Court of Justice and the European Court of human rights. Comparative law also contributes to gaining insight into the way that sustainable compliance can be achieved.

This research theme encompasses several aspects.

a) Legal protection of the weaker legal parties

This research theme focuses on the protection of weaker parties. An imbalance between the parties due to disparities in the financial-economic field, the field of knowledge and/or experience or other fields, such as language knowledge, as well as at the human and emotional level (e.g. the crime victim in relation to the offender) can give rise to an inequality between the parties. Research is being done as to whether and to what extent rules of law or the judge should compensate this inequality.

A number of mechanisms aim at compensating the inequality between the parties and protecting the weaker party, including :

-        information duties and communication towards parties,

-        primary and secondary legal aid,

-        particular mechanisms to bring a case before the judge including

o   the right of action granted to consumer organisations and similar associations  (e.g.  trade unions),

o   class actions

o   simplified proceedings

-        the court’s task to determine the applicable rule and to use techniques offering weaker parties protection, such as techniques derived from substantive law, procedural law and evidence law,

-        the regulations concerning legal costs,

-        restrictions concerning seizure, collective debt settlements and the European order for payment.

Within the framework of criminal (procedural) law, it is important to examine the roles assigned to victims in criminal conflict procedures. This raises the question of whether the practice of granting rights to victims throughout the criminal proceedings could be detrimental to the values that have been traditionally associated with a criminal justice system based on public law (e.g. independence and impartiality). Furthermore, it will be necessary to investigate where the legal and economic balance between public intervention and private involvement should lie in criminal conflict procedures.

b) Proper administration of justice

b.1. Right to a fair trial

Proper administration of justice is essential to achieve sustainable compliance.

In this research theme the different aspects of article 6 ECHR are examined. This research, combined with comparative law research, will contribute to the improvement of existing procedures.

Part of this research are :

-        the right to access to court and the importance of information and communication

-        the right to a fair trial, including

o   the right to adversarial proceedings

o   evidence

o   the right to remain silent vs. the duty to cooperate

o   use of languages

o   reasonable time

A separate research question in this respect concerns the best way to arrange criminal procedures in order to meet a number of quality requirements (such as fairness and a reasonable duration of the trial), as well as to optimise the search for the truth and the trial of suspects. Given that the Criminal Code dates from 1808 and that a more contemporary code is an urgent necessity, particular attention will be given to projects or research questions that could lead to the modernisation of criminal procedural law.

b.2. Time limits in the law

Sustainable compliance requires on the one hand that people can enforce their rights, but on the other hand that limits are set to the possibility to do so. Society should be protected from conflicts flaring up again and again.

In this research theme time limits in private law, social security law and criminal law are examined, including how those time limits can contribute to sustainable compliance. Also the time limits in civil procedural law and criminal procedural law form part of this research. The concepts of accuracy, coherence and effectiveness are particularly important in this respect. On the basis of those concepts it will be determined how time limits can and should limit the exercise of rights without impairing the very essence of the right. In order to guarantee the effective exercise of rights information and communication are essential.

Due to an accumulation of legislative changes the calculation of the limitation period for criminal procedures has become increasingly complex in recent years. One research topic that will receive considerable attention concerns  the statutes of limitation in Belgium and abroad. A separate research topic that is related to the limitation of criminal procedures involves the right to trial within a reasonable period  in criminal cases. In addition to examining the implementation thereof, such research will also consider the question of which sanctions should ideally be imposed for exceeding the reasonable period, and which preventive model should be applied in order to keep the duration of the criminal proceedings within reasonable limits.

b.3. Legal remedies

The broad possibility to put legal remedies into operation against judicial decisions entails high costs for society. Therefore, the question arises whether legal remedies should not be dealt with more economically.

The advisability and the usefulness of the legal remedies (among which extraordinary objection, higher appeal and cassation), the advisability of a restriction of the access to these legal remedies and the manner in which this should take place  will be examined. Furthermore, research will be done with regard to the ways in which the legal remedies  should be organised in  order to contribute to a smooth completion of the proceedings.

This subject matter will be approached in an interdisciplinary way, i.e. from the perspective of judicial law, social law and criminal law.

b.4. Cross-border procedures 

The primary focus of this research theme will be on cross-border procedures, both in civil law and criminal law.  Particularly within the European Union, these types of cases are becoming increasingly specified,  flexible and more and more applied in practice. The objective will be to critically examine existing, new and future legal frameworks for various cross-border procedures, ranging from procedures in the context of the right to legal aid in criminal cases  to civil procedures with a cross-border character, and to place them within the changing European and international legal order. Central questions in this regard include the following: how necessary are such (new) procedures ? How effective are they? Is a uniform framework being developed, or rather ad hoc solutions? Which safeguards are offered, and does the theory withstand the test of practice? What are the limits of cooperation and what are the limits of sovereignty?

Secondly, the research will also consider the primary and secondary influence of international and European rules of law on purely national procedures. The following questions come to mind : will Belgian legislators also be required to amend their internal procedures according to an international or European instrument? Are there lessons to be learned from existing or new transnational procedures? Is there a need for uniform procedures at the European level, and is there room for such procedures?

In the third place, a close look will be taken at the supranational framework, i.e. cases in which a supranational entity, either at the international or the European level, takes care of the proceedings. Come to mind the International Criminal Court and the other courts aimed at combating the so-called core crimes as well as the establishment of a European Public Prosecutor whose first objective is to detect and prosecute (financial) offences against the European Union. In this respect the following questions could be asked: are there specific international and European procedures and how much do they differ from national proceedings? Can lessons be drawn from this for the national level? What is the added value – and what are the problems – of supranational procedures, inter alia, given the issues of sovereignty, jurisdiction and judicial authority? Are these “new” procedures uniform as regards legal protection or do they vary, and can this be justified?

b.5. Evidence

Rules of evidence are an instrument for finding the truth in dispute. That search for the truth is not unprejudiced. The legal basis of the dispute determines the framework within which the process of establishing the  truth takes place, and procedural law may restrict the court in its search for the truth. Rules of evidence, including rules regarding the burden of proof, the admissibility, the lawful character of the evidence and regarding evidential value are essential.

In this respect, research will also be conducted into the role of the judge and the parties with regard to evidence and the protection of weaker parties.

It will be examined whether the rules of evidence are accurate, coherent and efficient and in which way they can contribute optimally to sustainable compliance. This research theme encompasses civil rules of evidence, criminal rules of evidence and social rules of evidence.

2.2.3. Enforcement mechanisms

The key concepts of accuracy, coherence and effectiveness can be applied to the entire chain of sanctions. Within this chain four steps can be distinguished:  detection  and enforcement by the authorities, identification and definition of punishable conduct;  determination and details of the  sanctions;  determination and assessment of the specific sanction; and the execution of the sanction. The following overview presents the research questions addressed with regard to each of these stages. There may be an overlap between the various sub-lines of research.

a) Detection and definition of punishable conduct

With a view to the protection of public policy the authorities have both the right and the obligation to shape society. The law is considered to be the appropriate control  mechanism in this respect. The law serves as a means to preserve the social norms and values that are prevalent in society at a given moment.

The concept of “public policy” is  a  multi-usable concept in the law. For instance, there is the question as to the factors on which the legislature relies to determine whether or not a certain form of conduct can be designated as punishable. It is not always very clear to what exactly the concept of public policy  refers. In other words, presenting  a clear point of view regarding the law in general and thus the values that need to be protected are absolutely necessary for accurate legislation. Therefore a meticulous definition is crucial for all the disciplines the research group  deals with.

Mapping  the relationship between the enforcement of administrative law and criminal law is required. Therefore the question arises which sanctions are the most suitable to impose compliance with the rules  in the context of social dumping and social competition.

If a choice is made for enforcement by criminal penalties, one could wonder what the scope is of international influences (e.g. Increasing European rules and regulations  allowing the States (or sometimes forcing them)  to create criminal violations). Then there is the question as to how preliminary investigations can be organised as accurately as possible. Indeed, the specification of the role of the examining magistrates is still a tricky matter. The latter issue overlaps with the research line “legal protection” – sub-line of research “proper administration of justice”. 

b) Determination and details of the sanction

The legislature is particularly active in creating new criminal provisions and aggravating circumstances, thus potentially jeopardising the coherence, effectiveness or other aspects of the system. The research will proceed from the question of which violations of certain core values ​​are being controlled and whether the protection afforded by the measures meets the quality requirements mentioned above. Are the current restraints provided within the framework of criminal or civil law  sufficient to protect the core values, is there room for decriminalisation/de-penalisation, is the framework  sufficiently transparent…? The term “core values” refers to specific moral rights (e.g. physical, psychological and sexual integrity,…), property rights or other types of rights.

In this context, what is the role of private law enforcement and civil and disciplinary sanctions, and how can private law fulfil a law-enforcement function? Is extra-contractual liability law a useful tool to complement criminal law? Can the sanction of nullifying a contract due to conflict with  public policy play a role in this regard? Is it advisable to assign a more punitive character to the sanctions specified in contract law?

Is a thorough codification of the ethical rules of the legal professions necessary or,  on the contrary, damaging ? What is the influence of other regulations (e.g. competition law, consumer rights, money-laundering legislation, fundamental rights, judicial law, social law,…) on the ethics of members of the legal profession?

When determining and defining punishable conduct the legality principle must be complied with. Given this principle, the question is whether criminal proceedings  are an appropriate manner to punish social crimes, especially in view of the general and vague obligations often used in this respect, obligations which quite often are prescribed by European law?

More in general it is also imperative that in the determination of punishable conduct  fundamental human rights play a primary role.  This raises, for instance, the question as to what extent the frequent offence of “hindering supervision”  in social law is compatible with the right to remain silent, as guaranteed, inter alia, by Article 6 ECHR.

b.1. Determination of the offender

Contrary to criminal law where material imputation is the rule, social law often uses the system of  legal imputation in which “the employer, his  appointees or mandatories” are designated as offenders. This ultimate responsibility of the employer and his entourage is based on the fact that the employer is the owner of the means of production. Is this primary responsibility of the employer still  sustainable in today’s society in which every person’s responsibility is increasingly  emphasised and new enterprise structures (such as cross-border parent companies and holding companies) emerge which make it increasingly difficult to determine who exactly has the main responsibility? Furthermore, there is the question as to what extent  the autonomy of criminal law can be applied to social law.  As regards the criminal liability of the legal entity we find that  in the case law there is a tendency to objectify criminal liability and this despite the principle of guilt-based criminal law. Therefore the question arises how broad the lines of guilt-based criminal law are.

b.2. Determination and details of the sanctions

The following research questions are dealt with:

-        Which criteria determine an accurate framework of sanctions?

-        When should priority be given to alternative “sanctions”, such as mediation?

-        How accurate are civil sanctions such as suspension, nullity and annulment of the agreements, contractual and extra-contractual liability?

-        When should priority be given to administrative sanctions and how are these sanctions related to other sanctions?

-        What is the best way to control deviant behaviour by a legal professional? How do disciplinary law, social law, criminal law and civil liability relate with regard to the punishment and remediation of deviant conduct? 

b.3 Determination and assessment of the sanctions

The following research questions will  be dealt with:

-        What is a sanction (e.g. with a view to verifying the applicability of the guarantees of the ECHR)?

-        What is the power of review  of the court that is asked to impose a certain sanction? Does the court have full jurisdiction to review, or is it only marginally authorised  to review ?

-        When is a sanction proportionate? What are the criteria, both from the perspective of the legislature as from that of the magistrate and the legal subject? To what extent can decisions (e.g. the prohibition to submit certain documents) or sanctions (e.g. suspension) by the disciplinary authority be controlled by or imposed on the courts?

-        Which conditions must be met in order to achieve optimal sentencing? These conditions could include mapping the cross-fertilisation between the various actors in criminal law and determining whether the rules regarding the acceptance of mitigating circumstances and recidivism are still effective. Problems relating to the consistency (or inconsistency) of the Belgian sentencing system also play a central role. This is because judicial discretion inherently contains the risk of arbitrariness in the determination of the punishment. Therefore it is  necessary to investigate why consistency in sentencing is a goal worth pursuing. Accurate and effective sentencing  also  includes proper motivation of the punishment and the level of the sentence. It will undoubtedly also be necessary to consider the psychological angle.  Examining the perception of the convicted party with regard to the ruling will play a crucial role in this regard.

c) Execution of the sanction

The following research lines will be dealt with:

-        Which requirements should a sanction fulfil in order to be effective in terms of execution?

-        In their rulings, may the courts that are competent to impose sanctions also be involved with complications relating to the execution?

-        Which circumstances determine an optimal execution of criminal penalties?

2.2.4. Safety and prevention

Risks and uncertainty/insecurity  are essential characteristics of today’s society. Recent developments in the field of, inter alia, new technologies (digitisation, robotisation…), increasing economic and social competition, higher flexibility demands, new forms of employment  et al. have a strong impact on the risk picture. So it is not surprising that in this context the social importance of safety and prevention in a broad sense has grown considerably.

Within the research line “Safety and prevention” we want to supply scientifically sound but also practically applicable solutions to improve the safety in undertakings and organisations as well as in society at large. As for the  scientific soundness, this is seen to  by collecting and broadening scientific knowledge. By broadening we mean examining  aspects of both safety (such as well-being at work, quality and environment) and security (protection, social safety) on the one hand  and approaching safety not only from a legal perspective but also in a multi- and/or interdisciplinary manner (e.g. from the perspective of behavioural and social sciences or technical disciplines) on the other. As for the practical applicability, this is seen to by offering undertakings and organisations, depending on their nature and size, instruments that allow them to develop  a better and a more sustainable safety  policy and culture, including  building up  fortitude and  constructively dealing with risky conduct, accidents and incidents.

In this framework the following topics will be dealt with:

-        Research into the meaning and the importance of fundamental rights for various domains of safety. Is there a fundamental right to safety and to safe and healthy work? How does this right relate to other fundamental rights, such as the non-discrimination right, the right to privacy, right to work, right to consultation and negotiation;

-        Research into the competences, responsibilities and cooperation of the various stakeholders  (such as employees, experts, civil-society organisations, authorities, citizens,…) involved in safety and prevention policies. Which competences and responsibilities should be accorded to the actors to improve the prevention and re-integration culture within undertakings/organisations and which guarantees and statutes are advisable/necessary to allow them to carry out their various competences and tasks regarding prevention and remedy optimally.

-        Research into the factors that are the most likely to determine and predict the safety culture and safety attitudes and this with the aim of developing instruments to evaluate and assess these factors as well as  with the aim of formulating recommendations.

-        Research into the impact of new forms of employment on well-being at work. Which possibilities does the current legal set of instruments (including grounds for suspension, leave and holiday systems etc.  in terms of labour law) contain vis-à-vis these new forms of employment with a view to improving the well-being of workers and which adaptations are necessary/advisable to give workers the best opportunities to achieve the maximal development of their abilities.

-        Research into the prospects for the further development of prevention in the social insurance schemes. To what extent does the idea of prevention and remedy have real chances to grow in a system that has been perceived from the very beginning  as a curative and individualised system; and which legal conditions should be available to attain the optimal development of the idea of prevention and remedy in occupational risk insurance?

-        Research into the various aspects involved in handling environmental and technological risks, such as: risk management, challenges in the implementation of the Seveso-legislation (both from a technical point of view and at the level of stakeholder participation); establishing and maintaining a dialogue with regard to long-term safety projects (e.g. nuclear waste disposal); incident analysis;…

-        Research with regard to emergency planning and crisis management: crisis management and emergency planning by the authorities and in undertakings; decision procedures during crisis situations; the manner in which auxiliary/emergency services deal with fear and uncertainty during interventions; the specific challenges regarding emergency planning and crisis management in relation to public and industrial safety.

-        Research into new technologies developed and used within the safety domain (such as drones).

-        Research of security models, security culture and security awareness.

“Safety and prevention” is a relatively new research line which is still in full  development. Over the next years the priorities  will be  specified further.  In addition, the various (sub-)lines will  be  made more streamlined.