Belgian Magistrate Aptitude Exam flashcards

33 cards. Read the term and the definition here. The deck at the top of this page is optional.

Constitutional Court

Belgian court of 12 judges (6 Dutch-speaking, 6 French-speaking) that reviews statutes for compliance with Title II rights and the federal competence rules. It does not review administrative acts.

Council of State annulment

The Administrative Litigation Section of the Council of State can annul illegal administrative acts for illegality, excess of power, or procedural irregularity. Suspension additionally requires urgency and a serious ground.

Ministerial countersignature

Under Article 106 of the Constitution, no royal act is valid without the countersignature of a minister, who thereby assumes political responsibility before the Chamber of Representatives.

Hierarchy of norms

Belgian legal order ranks norms: Constitution, special statutes, ordinary statutes, decrees and ordinances, royal and executive decrees, ministerial decrees, and individual administrative decisions. Lower norms must comply with higher ones.

Principle of legality

Every administrative decision must rest on a statutory basis. The administration must also respect legitimate expectations, proportionality, and the right to be heard before adopting an adverse decision.

Pacta sunt servanda

A contract lawfully formed binds the parties and must be performed in good faith. Termination requires judicial or agreed resolution, notice, or unilateral termination for serious breach after notice.

Defects of consent

Under the new Civil Code, consent may be vitiated by error, fraud, violence, or abuse of circumstances. A contract concluded under such a defect is voidable at the request of the protected party.

Tort liability elements

Belgian tort liability requires fault, damage, and a causal link between them. Strict liability applies to defective products under the 1991 Act and to employees' acts under former Article 1384.

Writ of summons

The citation or dagvaarding is served by a bailiff and must state the claimant, defendant, subject matter, legal grounds, and competent court. It initiates civil proceedings before the court.

Justice of the peace

The juge de paix or vrederechter hears small civil claims up to 5,000 euros and tenancy matters. It is the lowest court in the Belgian civil judicial hierarchy.

Burden of proof civil

The claimant must prove the facts on which the claim rests. Evidence includes documents, witness testimony, presumptions, and expert reports; the judge may order a personal appearance.

Nullum crimen sine lege

No offence or penalty may be imposed without a prior, clear, and strict statutory basis. The Criminal Code of 1867 and special statutes define offences and their corresponding penalties.

Attempt liability

An attempt is punishable when the execution of the offence has begun and is frustrated by external circumstances beyond the offender's control. Mere preparation is not punishable.

Pre-trial detention review

An investigating judge may order pre-trial detention. The indictment chamber must confirm the arrest warrant within five days, and detention is reviewed monthly thereafter.

Presumption of innocence

Guaranteed by Article 6 ECHR and Article 14 ICCPR, it places the burden of proof on the prosecution. The accused has the right to silence, to counsel, and to an interpreter.

Assize court jury

The cour d'assises or hof van assisen tries serious crimes carrying imprisonment of 20 years or more. Since 2021, verdicts of the assize court may be appealed.

Criminal prescription periods

Prosecution lapses after 10 years for serious crimes, 5 years for lesser offences, and 1 year for police offences. Interruption and suspension rules may extend these periods.

Supreme Court function

The Cour de cassation or Hof van Cassatie heads the judiciary and reviews the legality of judgments but not the facts. It may quash and refer a case to another court.

High Council of Justice

Composed of 44 members (22 Dutch-speaking, 22 French-speaking), half judges and half external members, it screens judicial candidates and handles disciplinary referrals.

Judicial independence

Article 151 of the Constitution guarantees judicial independence. Judges are irremovable and may only be transferred or dismissed by a judicial decision.

Duty to give reasons

Judges must state the grounds (motifs) supporting their decisions. They may not sit in a case where they have a personal interest or previously acted as counsel.

Publicity of hearings

Court hearings are public unless the law provides for closed sessions, such as cases involving minors or morality. Judgments are pronounced in open court.

IRAC method

A legal memorandum structure: Issue, Rule, Application, Conclusion. Each rule statement must cite its source, whether the Constitution, a statute, case law, or doctrine.

Judgment structure

A judgment contains the parties' identities, the claims, the procedural history, the reasoning (motifs), and the operative part (dispositif). It is signed by the judge and the registrar.

Belgian case citation

Belgian case law is cited by court, date, case number, and publication, for example Cass., 12 March 2020, no. C.19.0123.F, Pas. 2020, I, 123.

Ratio decidendi

The legal ground on which a court's decision rests and which binds lower courts following precedent. It is distinguished from obiter dicta, incidental remarks without binding force.

Analogical reasoning

A reasoning method that extends a rule to similar cases not expressly covered by its text. It requires justification of the similarity between the covered and uncovered cases.

A contrario reasoning

A reasoning method that excludes from a rule the cases its text does not cover. It requires justification that the legislator intended an exhaustive enumeration.

Teleological interpretation

An interpretation method that reads a provision in light of its purpose and the legislator's objective. It complements literal, systematic, historical, and evolutive interpretation methods.

Official languages

Belgium has three official languages: Dutch, French, and German. Language use in administration is regulated by the language laws of 1962-1963.

Federal parliament composition

The Chamber of Representatives has 150 members elected by proportional representation with a 5% threshold in each constituency. The Senate is a non-permanent assembly with limited powers.

Council of State sections

The Council of State has a Legislation Section, which advises on draft texts, and an Administrative Litigation Section, which annuls illegal administrative acts.

Belgian Official Gazette

The Moniteur belge or Belgisch Staatsblad publishes statutes, decrees, and appointments. Publication is a condition of enforceability for many administrative and legislative acts.