The Belgian Case: Phenix or How to Design E Justice Through Privacy Requirements and in Full Respect of the Separation of Powers

Introduction

Phenix is the brand name of a project which aims to introduce ICT at all the steps of the judicial procedure in Belgium, no matter the affair engaged in: criminal,¹ civil, commercial, and so forth. In other words, Phenix is a global project for the whole computerization of all courts and tribunals in Belgium. Since the introduction of the dossier until its notification, Phenix aimed to have the actors involved in these different phases: the lawyers, the magistrates, the registrars, the public prosecutors, and the process servers use the technologies in a secure and efficient way. This very ambitious project has been approved by two legislative acts. The first one, the “Phenix Act,” was enacted on August 10, 2005.² It institutes the information system called “Phenix,” describes its mission, and sets up different organs in order to regulate the system. What is more noticeable in that legislation is the importance given by the legislator to apply and follow strictly the data protection principles in order to build up the Phenix Information System. The second act “relative to the judicial procedure by electronic way” dates from July 10, 2006³ and aims to modify certain provisions into the Civil and Penal Procedural Code in order to give legal value to the documents generated by the use of the electronic procedure settled up by the Phenix Information System. Our short contribution will analyze these two facets of this legislative input.

Before starting, perhaps a few words about the origin⁴ and the present situation of the Phenix Belgian model would be needed. Apart from 1990, certain initiatives were taken in Belgium, but these initiatives were local and not sufficiently coordinated. They were focusing on the internal use by tribunals of computers and the development of certain software aiming to support the tribunal members’ work. The concept of a global “e-justice” project has been launched by the previous government in 2000, on the basis of the studies realized by a large consortium,⁵ joining together all the stakeholders, and a call for tender has been issued in 2001. Three main concerns explain the launching of a global and strongly centralized project: (1) the development of the Internet which creates an opportunity but also an absolute need to integrate the different databases; (2) the obligation to avoid all the problems raised by the incompatibility between the material used at the different levels; and (3) the idea that such a centralized project will diminish at midterm the costs of the functioning of the tribunals. Several technical working groups⁶ have been settled up in order to elaborate and formulate the needed recommendations to address to the legislator, to the furnisher chosen, and definitively to the different actors involved by this revolution. The first concrete works have started in 2002; two acts have been promulgated in order to fix the legal context of the Phenix project, and no less than 18 royal decrees have to be drafted.

Notwithstanding all the efforts of all the actors and the budget afforded to ensure the success of the project, recently in March 2007, the present Ministry of Justice has announced the Phenix project’s failure and the obligation to stop the works initiated. It seems that this failure is due to the difficulties met by the supplier to solve complex technical problems. A litigation is in course before a Belgian court between the state and its furnisher. The next government, which will be formed after the next elections in June, will have to decide which follow-up will be given to the project. From this bad Belgian experience, a first conclusion must be drawn: even if we need to have a global project in order to structure all the developments, it is absolutely needed to start with local and dedicated experiences in order to learn apart from these partial experiences how to adapt continuously these developments and to solve the concrete difficulties met at any stages. Another benefit of this experimental approach is also to progressively convince all the stakeholders (the magistrates, the registrars, the process servers, the lawyers, and, finally, the citizens) of the benefits of the project and to hear from them their expectations about such a project. Too much reluctance has been met from different groups, shocked by this managerial revolution imposed without real consultation.