The use of languages in trial cases has always been a delicate matter in Belgium.
In the past a series of purely formal mistakes were sanctioned by an absolute nullity of the procedure document concerned. Even when no party mentioned the nullity of the document, the judge was obliged to pronounce its nullity, and this even when the defective document did not harm the parties’rights. This severe sanction found its origin in the logic of defending language minorities in certain regions.
In his striving for reforms, the Minister of Justice Koen Geens has also dealt with this sanction.
The “pot-pourri” VI-law fundamentally changed the article of the law on the usage of language in trial cases. From now on, breaches of this law are not sanctioned anymore by an absolute nullity, but only by a relative nullity.
This means that the (civil) judge does not have the obligation anymore to pronounce the nullity when the law on language usage is breached. From now on only the parties of the trial can ask for this nullity. Moreover, the plaintiff will need to prove that his interests have been violated. Only when both conditions are fulfilled, the judge will be able to pronounce the nullity of the procedure document.
This modification is applicable since June 9, 2018, on all procedures started since that date. The procedures started before that date, are still governed by the rule of absolute nullity.
We presume that following this legal change, breaches of the law on the use of languages that will be sanctioned by nullity, will become very rare.
This modification is easily comprehensible, and even perhaps desirable, from a pragmatic point of view. The old rule was quite rigid and did not give much room to the courts to manoeuver. The nullity of a document could harm the proceeding of a trial case, which often already takes much time, thus increasing the judicial backlog.
On the other hand, one must be careful to protect some principles in the usage of languages in trial cases – which are holy for some – not in the least taking into account the sensitivity of the subject in Belgium. Specially in the judicial regions of Brussels & Halle-Vilvoorde, which took 50 years to separate, the softening of the nullity sanction can lead to a less strict application of the law, and thus to an under-appreciation of the rights of language minorities. So, this legal change does not – for some – necessarily build trust.
For that reason, a proposal of law was introduced already on July 5 2018, in order to revert to the old system (http://www.dekamer.be/FLWB/PDF/54/3220/54K3220001.pdf).
To be continued….