Modernisation of the Criminal Justice Chain and the Judicial System

Reforms in the Belgian judiciary have been on the agenda for a long time. Several proposals were formulated, but implementation was lacking. This changed under the former government who introduced a reform, based on three main aspects: scale enlargement, mobility of staff, and management autonomy for the judiciary. The current government has launched a new ‘justice plan’, which builds further on these ideas. In this chapter we discuss the main reform efforts since the nineties and explain why some reforms have been successful or not.

From the 1990s, the French judicial system has been undergoing revolutionary internal changes that thoroughly altered its organisational structure and its way of processing justice argued penal cases, insisting especially on the productivity of prosecutors. The promoters of this “fast” brand of justice argued that this has led to a more efficient penal justice system. A closer look at the actual figures, however, reveals the prosecutors’ use of different tools—like dropped cases or change of label—in order to preserve themselves from bad results in this context of managerialisation and benchmarking. This chapter also puts the light on the transfer of innovation and its perverse effect, standardisation, from one jurisdiction to another.

Structural and procedural reforms were introduced in an attempt to modernise the judicial system since the late 1990s, which gave “new public management” precepts greater influence. To explain how judges perceive and have appropriated this new managerial approach, as well as its impact on the administration of justice and on punishment (Gautron 2014a), this contribution goes beyond legal texts and ministerial recommendations, drawing on the results of collective, interdisciplinary, quantitative, and qualitative research into how the handling of misdemeanours has evolved during the 2000s in five French courts. Conducted by legal academics, sociologists, and psychosociologists, our study is based on a representative sample of 7562 misdemeanour cases involving adult offenders, various direct observations and about sixty semi-directed interviews.

In Switzerland, a major reform of the justice system in 2011 saw the harmonisation of the various cantonal criminal procedure systems and the reorganisation of criminal prosecution and criminal justice chain for the whole of the country. By abolishing the position of examining magistrate, public prosecution services were given a new position in the criminal justice chain, now being put in charge of the entire preliminary proceedings. The independence of prosecutors was increased, at least as far as concerning all legal acts carried out in the course of the criminal prosecution process. A number of cantons had previously used different prosecution models and there was also a considerable change in the means of cooperation between the public prosecution services and the police. Research by the authors shows that from the prosecutors’ point of view, the new system seems to be a success.

Until the 1980s continuity and stability were the key characteristics of the Dutch criminal justice chain. Judges and public prosecutors hardly bothered about management issues while the Ministry of Justice decided on staff, housing, and budgets. Each organisation focused on its own task. Within the organisations there was a clear-cut separation of the professional work of the lawyers and the administrative work and support functions. Technologies were hardly used to support the professional and the administrative work. Driven by an explosion of the number of cases in the 1970s and 1980s many reforms have been implemented. This contribution analyses the reforms in the criminal justice chain from the perspective of strategy-organisation configurations. These configurations represent more or less coherent combinations of law enforcement strategies and matching organisation principles. Until the 1980s the predominant strategy-organisation configuration is labelled as incident driven legalism in a criminal justice archipelago. The criminal justice chain is hardly connected, let alone coordinated. All links in the criminal justice chain react on criminal incidents more or less coincidently. In order to enable a more deliberate and purpose driven law enforcement strategy a first wave of reforms aimed at scaling up separate links (public prosecutor’s office, courts) and strengthening their autonomy. The strategy-organisation configuration that arises is referred to as policy driven managerialism in a pillarised criminal justice chain. A second wave of reforms is driven by ICTs. The large-scale automation of case management accommodates the use of risk management techniques and forces to differentiate work flows. The strategy-organisation configuration that arises is characterised as information driven risk management in a system-level bureaucracy. The latest wave of reforms in the criminal justice chain has only been initiated recently. These reforms aim at both strengthening the linkages within the criminal justice chain and between the criminal justice chain and other public organisations in the realm of law enforcement such as tax organisations and local governments. A new strategy-organisation configuration seems to emerge that combines a coherent criminal justice chain with a collaborative law enforcement strategy.

A review of the literature on interorganisational relations reveals that trust has become one of the most commonly cited concepts (Kroeger 2012). Successful relationships between organisations are based on several characteristics and trust is one of them (Wehmeyer et al. 2001). Interorganisational trust is defined as the willingness to be vulnerable (Mayer et al. 1995) based upon positive expectations of the intentions or behaviour of other actors in the context of an institutional system, which will lead to concrete actions (Edelenbos and Klijn 2007). Apart from trust, this chapter will also examine distrust, which can be seen as a separate concept (Lewicki 2006). It is possible to at the same time trust and distrust a person in one relationship, depending on context, roles, and tasks. Despite the popularity of trust research, there are relatively few studies (or data) available that focus on interorganisational relations amongst public authorities involved in the process of criminal investigation and prosecution (Tasdöven and Kapucu 2011). An attempt is made to cover this gap by focusing on trust in the Belgian criminal justice chain, specifically focusing on the triangular relationship between the police (local and federal), the public prosecutor’s office, and the examining magistrate. Data are collected by qualitative interviewing of individual members in relation to other members or organisations. The main research question is the following: what does trust and distrust mean for the police, the Public Prosecutor’s Office and the Examining Magistrates?

While trust within and between organisations is considered a major indicator for successful organisation the debates on reforms of the judicial system overlook the need for internal trust. Drawing on a case study of the Flemish juvenile public prosecutor’s office and juvenile court, this chapter aims to explore the organisational trust phenomenon in a judicial context. The state-of-the-art trust process developed by Dietz (2011) is applied to the judicial case by interviewing core members within the case organisations. Within this judicial context counterpart’s flexibility, loyalty, openness, workload as well as the presence of an ingroup/outgroup culture between the organisations arise as important bases to determine trustworthiness. Trustworthiness was generally valued high but for some tasks ability and benevolence were perceived lower, mainly due to perceived high workload. The willingness to take risks and the actual risk taking behaviour in the form of communication and task-delegation could be lacking for those tasks. However, even then trust was often placed in the trustee because the trustor does not have the resources to take a more controlled risk. These kind of unsure situations should nevertheless be avoided in a cooperation as decisive as the juvenile justice chain. Further research is required to check for generalizability.

Building on the heuristic principles of Sociology of Organised Action, this chapter aims to analyse the inter-institutional conception of Area Security Plans in Belgium. This collective decision takes the form of successive informal dialogue steps, culminating in ratification at the legal body originally instituted for the purpose of dialogue. Considering the concept of ‘apparent consensus’ and its conditions of implementation allows us to reveal the plural nature of collective decision-making when realised in practice.

This chapter starts from the premise that the sentencing decision-making process should not be understood simply as decisions by individual judges but as a form of collective action involving the work of other actors, human and non-human. The chapter then looks at the evidence we have of these decision making practices and concludes that while some sentencing work is visible, mainly through the documents produced for the case file by police, prosecutors, social workers and others, much sentencing work remains “invisible”. This has important implications for how discretion should be understood. The traditional legal understanding of discretion conflates an empirical account of decision making practices with a normative account of these practices. The chapter argues that these need to be distinguished and that discretion should be understood as a mode of justification rather than as an empirical practice. A decision justified by the claim of discretion is based on trust in professional knowledge and expertise. This is necessarily invisible. Decisions justified by accounts of rule-following or the completion of a template are public and visible. Sentencing decisions are justified by a mix of visible and invisible work. The balance between those and how they are distributed in the collective process of sentencing, are matters of political choice.

The Belgian Sentence Implementation Court is responsible for the decision of early release from prison. Different professional groups are involved in the making of such a decision: judges, prison governors, prison clerks, psychosocial teams and the prison central administration. Describing the legal framework as well as the practices and interactions through which the stakeholders enact the 2006 Act, this chapter underlines the role of documents and “sensemaking” (Weick et al. Organizing and the process of sensemaking. Organ Sci 16(4):409-421, 2005) in the collective decision-making process. Making sense of various documents (the judgement and description of the offence by the public prosecutor, reports, recommendations, requests, hearing convocations, etc.), the stakeholders are progressively framing the decision of the court.

This text proposes an international introduction to the prosopographical method and reconstructs the history of the “Belgian Magistrates” project.

This chapter introduces the relational database “Prosopography and directory of Belgian magistrates, 1795–1962”. The authors return on methodological issues and technical choices made to conceptualise this tool (especially the time management and the evolving nature of the data). They then present the structure articulated around four large interconnected parts: the people, the courts, the appointments and the sources.

This chapter focuses on one of the novelties introduced by the French Revolution in the Belgian judicial landscape: the judicial district. It focuses in particular on the identity of judges and prosecutors serving under the French Directory. It then analyses the criminal practices of the latter through the execution in the Belgian departments of legislation on the religious police and specifically the issue of non-juror priests.

This chapter presents the first results of a prosopographical study on Belgian colonial magistrates. After a presentation of sources and their limits, it comes back on the exploitation of data arranged around four moments of the professional path of the magistrate: recruitment, training, career and the return in Belgium. This general analysis is followed by a focus on the unusual career of Antoine Sohier, colonial magistrate who became president at the Court of cassation.

This chapter compares the relationship between the Belgian judiciary and the occupier during the two world wars. It analyses the behaviour of the judiciary during these times of crisis that undermine the balance between the powers and the independence of the judiciary. Based on Belgian and German sources, it examines the various occupier’s interferences in the course of justice.

Prosopographical databases are of major interest for research work. As resources enabling a significant saving of time, they provide undeniable value to the conclusions put forward in the analysis, which are far more reliable than those drawn from a classic manual examination and interpretation of sources. Lastly, the material and human means necessary to achieve such databases have to be dealt with (J.C.Farcy).The common denominator in the three different types of government in these case studies—annexation, colonialism, occupation—is foreign rule: Belgium under French and German rule, and King Leopold and Belgium as foreign rulers of Congo. The perspective of purity and contamination, in connection with (evolutionary) group dynamics provides an essential background for assessing the sociological and symbolic importance of the judiciary in a constellation of foreign rule (D.Venema).