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[Unofficial translation] MINISTRY FOR THE FLEMISH COMMUNITY 15th July 1997 - Decree creating a Commission for Children's Rights and establishing the post of Commissioner for Children's Rights (including changes since the decrees of jan. 31 2003 and july 15 2005) The Flemish parliament has adopted, and we the Government have agreed as follows: Art. 1. The present decree concerns a regional and community matter. Art. 2. For the purpose of the present decree: 1) 'Convention' means the Convention on the Rights of the Child, adopted in New York on 20th November 1989; Art. 3.1. The post of Commissioner for Children's Rights, hereinafter called the Commissioner, is hereby established. 2. The Commissioner shall be appointed by the Flemish Parliament. 3. The conditions of employment of the staff of the Commission for Children's Rights shall be determined by the Flemish Parliament on the proposal of the Commissioner. Art. 4. The Commissioner shall defend the rights and interests of the child. To this end s/he shall: 1) monitor respect for the Convention; Art. 5. In execution of the duties laid down in Art. 4, the Commissioner, having regard to the Convention, shall ensure in particular: 1) dialogue with children and with organisations active in the field of individual and collective services to children or in the defence of children's interests; To this end, the Commissioner may call in particular upon the experience and scientific experience of the Vlaams Centrum voor de Bevordering van het Welzijn van Kinderen en Gezinnen (the Flemish Centre for the Promotion of the Child and Family Welfare), without however in any case hindering the activities of the centre. Art. 6. In the fulfilment of the duties laid down in Art. 4 the Commissioner shall be empowered: 1) to carry out investigations on his/her own initiative or on the request of the Flemish Parliament into any matter relating to respect for the Convention. Art. 7. §2. The Commissioner shall satisfy the following conditions: 1° be a Belgian, §3. After the first appointment the commissioner will have a trial period of 1 year, beginning the day on which the function is actually taken. At least forty-five days before the end of this trail period the Flemish parliament evaluates the commissioner. When no evaluation is done at that time, it will be considered as a positive evaluation. §4 . Ninety days before the end of the mandate at the latest, the Flemish Parliament evaluates the commissioner. When the evaluation is positive, the mandate is de iure but only once renewed for another term of six years. When no evaluation is done before the ninety days before the end of the term, it will be considered as a positive evaluation. §5. Before entering into post, the Commissioner shall take the following oath before the President of the Flemish Parliament: "I swear to be faithful to the King of the Belgians, to obey the Constitution and the laws of the Belgian people". ( 1997-2003: 1. At his/her appointment and during his/her period in post the Commissioner shall satisfy the following conditions: 1) have Belgian nationality, be resident in the Flemish region or in a bilingual area of Metropolitan Brussels, and be the holder of a Flemish-speaking certificate; 7.2 (1997: The Flemish Parliament shall appoint the Commissioner for a term of 5 years, which may be once extended.) Changed in 2003 in: The Flemish Parliament appoints the commissioner after a public call for candidates and a comparative assessment for a five- year term. Ninety days before the end of that term at the latest, the Flemish Parliament evaluates the commissioner. When the evaluation is positive, the mandate is automatically but only once renewed for another term of five years. When no evaluation is done before the ninety days before the end of the term, it will be considered as a positive evaluation. 7.3 Before entering into post, the Commissioner shall take the following oath before the President of the Flemish Parliament: "I swear to be faithful to the King of the Belgians, to obey the Constitution and the laws of the Belgian people". Art. 8 2° §2. the commissioner receives the salary, vacation benefit, end-of-year benefit and all social benefits of statutory personnel of level A2 of the Flemish parliament. (1997-2003: 1 Appointment to the post of Commissioner is not compatible with the holding of any other mandate, post or position, paid or unpaid. The Commissioner shall not have held public electoral office in the three years before appointment. During the three years following the termination of the appointment the Commissioner shall not be nominated as a candidate for public electoral office. For the purposes of the present paragraph, the posts of burgomaster appointed from without the municipal council, of administrator of a public body, and appointments as a government commissioner or governor, deputy-governor or vice-governor shall be regarded as equivalent to electoral office. 8.2 The Commissioner shall enjoy the status of a counsellor of the Cour des Comptes. 8.3. Within the limits of his/her own competence, the Commissioner shall receive no instruction from any authority. The Commissioner shall be entirely independent in the exercise of his/her functions. (1997:The Commissioner may not be relieved of his/her post by reason of acts carried out in the context of his/her duties.) Changed in 2005: The mandate of the commissioner can not be terminated because of expressed opinions or actions within the normal context of his duties. Art. 9. Changed in 2005: The Flemish parliament ends the mandate of the Commissioner: The Flemish Parliament can end the mandate of the Commissioner: Added in 2005: In cases mentioned in art 9 of this decree, or in case of the death of the commissioner, the Flemish parliament can appoint one of the staff members, who fulfils the conditions as stated in art 7, §2, 1°, 2°, 3° and 4°, as commissioner ad interim, after having compared the titles and merits of the candidates. This rule will also apply whenever the commissioner is absent due to illness, for more than two consecutive months or whenever it is clear that he will be absent due to illness for more than two consecutive months. Art. 10.1. The authorities shall make available to the Commissioner all information required for the fulfilment of his/her duties. They shall provide on request all relevant information and documentation. 10.2. The Commissioner, in the exercise of his/her duties, may request the opinion of the authorities. 10.3. Without prejudice to Art. 15 of the Constitution, the Commissioner shall have free access to all public buildings and institutions. Public officers and members of their staff shall be duty bound to communicate to the Commissioner any material or information s/he may consider relevant, except such as may be protected by medical confidentiality or which s/he ['they' in the Dutch original] may have been given in confidence. Art. 11. Article 485 of the Criminal code shall be applicable to the Commissioner and his/her staff. Art. 12.1. The Commissioner shall address to the Flemish Parliament an annual report on his/her activities as described in Art. 4. (1997: The report shall be discussed by the Parliament in plenary session). Changed in 2003: The plenary meeting of the parliament will take notice of the report after which it will be discussed in the competent parliamentary commissions. After discussion in the commissions, it can be discussed in the plenary meeting. 12.2. The Commissioner shall communicate his/her reports to the federal authorities, so that they may take them into account in drawing up the report which Belgium is required to submit every five years to the Committee on the Rights of the Child, in application of Art. 44 of the Convention. The Commissioner shall evaluate this report. Art. 13. Changed in 2005: the Flemish parliament annually approves the budget and accounting of the Office of the CR Commisssioner, at the proposal of the Commissioner. Art. 14. Within 6 months of his/her appointment, the Commissioner shall draw up a proposal for standing orders for the operation of the Commission. Upon approval by the Flemish Parliament these regulations and any amendments to them shall be published in the Moniteur belge. Added in 2005: (Exerpt of the rules of transition with the decree in 2005 The present decree is promulgated, and ordered to be published in the Moniteur belge. Brussels, 15th July 1997. The Minister-President of the Flemish Government, L. VAN DEN BRANDE The Flemish Minister of Culture, the Family and Social Affairs, L. MARTENS
2) 'Commission for Children's Rights' means the Commissioner for Children's Rights and the staff who assist him/her in carrying out his/her duties;
3) 'child' means any minor;
4) 'administrative authority' means administrative authority in the sense of the joint legislation the Council of State, dealing with the powers of the Flemish Community and the Flemish Region.
5) 'institutions' means all private institutions recognised by the Flemish Government or by Flemish public bodies.
Added in 2005: The staff of the office of the Children’s Rights commissioner performs its duties under the commissioner’s guidance. The staff has the same competences as the commissioner in fulfilling their task.
2) ensure the monitoring, analysis and assessment of children's conditions of life;
3) act as the defender of children's rights, interests and needs.
2) the social participation of children and the accessibility to children of all services and organisations of interest to them;
3) the monitoring of the conformity to the Convention of all laws, decrees, ordinances and other legislative instruments, including procedural regulations governing any matter which falls within the jurisdiction of the Flemish Community or the Flemish region;
4) the dissemination of information relating to the content of the Convention, especially in the interests of children.
2) to examine any complaint regarding non-respect of the Convention, and as far as is possible to refer it to the [relevant] institutions. The examination of a complaint shall be suspended in the case of legal proceedings or administrative appeal in the matter of the complaint. The administrative authority shall notify the Commissioner of any appeal lodged. The making of a complaint and its examination shall in no way affect the time-limits for appeals in the courts or in the administrative tribunals. The Commissioner shall inform the complainant of the outcome of the complaint.
Changed in 2005:
§1. The Flemish Parliament Parliament appoints the commissioner after a public call for candidates and based on a comparative assessment for a six year term. The conditions and procedure of selection are set by the Flemish parliament. The selection will be done or mandated by the Flemish Parliament.
A person can only be commissioner for a maximum of two terms, consecutively or not.
2° be of irreproachable conduct;
3° enjoy full civil and political rights;
4° hold a degree which is needed for the appointment of a A-level function with the Flemish parliament services,
5° has not held any public electoral office the past three years before the call for candidacy. For the execution of this article the following will be regarded as an public electoral office: the function of mayor outside a local council, the function of member of a Bureau of an organisation of public interest, the function of government commissioner, the function of governor, deputy-governor or vice-governor, the function of federal, community or regional minister, state secretary or regional state secretary or a political mandate within the EU,
6° have at least 5 years of professional experience relevant to the post;
2) be of irreproachable conduct;
3) enjoy full civil and political rights;
4) hold a university degree or equivalent;
5) have at least 5 years of professional experience relevant to the post;
6) correspond to the profile determined by the Flemish Parliament.
A person can only be commissioner for two terms, consecutively or not.
Changed in 2005:
1° §1. the mandate of commissioner is not compatible with a public electoral office or any equivalent as mentioned in art 7, §2, 5°, with a public function or mandate or activity, by which the dignity of the function or the decent, independent and impartial execution of the function could be jeopardised.
When the commissioner is no longer able to perform the function, due to illness or handicap, while not having reached the retirement age, the Flemish Parliament proposes the Administrative health service to declare him definitely incapable to work.
Added in 2005: §2 bis. The commissioner ad interim, as mentioned in art 9bis, third par., enjoys a bonus equal to the difference between his and the commissioner’s salary for the time of his interim function. This temporary bonus is not to be considered for determining the amount of vacation- and end-of-year benefits.
The rules governing the payment of counsellors of the Cour des Comptes, included in the law of March 21st, 1964 on the payment of members of the Cour des Comptes shall apply to the Commissioner.)
(1997: The Flemish Parliament may terminate the appointment of the Commissioner:
1): at his/her own request;
2) when s/he reaches the age of 65;
3) in the case of such incompatibility as referred to in Art. 8.1.;
4) for grave cause, without prejudice to Art. 8.3.)
The mandate of the commissioner ends de iure:
1° after a negative evaluation of the trail period, at the end of that trial period;
2° after a negative evaluation of the mandate, at the end of tha mandate;
3°when declared definitely incapable to work as stated in art. 8, §2, third par.
1° at his request;
2° when he does not comply with the rules of incompatibility, as stated in art8,§1;
3° when he no longer fulfils the conditions stated in art. 7, §2, 1° and 3°.
1° with his consent;
2° When he reaches the age of 65:
3° for serious reasons.
Art. 9bis
At the opening of the function of commissioner, the Flemish parliament will arrange the necessary selection proceeding as soon as possible for the nomination of a new commissioner.
When the mandate of the commissioner expires while no new commissioner is appointed, the standing commissioner will continue his function until the new one takes up office, possibly going against art 7, §1, second par. of this decree.
The report shall be made public. The Commissioner may also, should s/he consider it useful, make interim reports to the President of the Flemish Parliament with a view to discussion in plenary session.
(1997) The Flemish Parliament shall determine annually, on the proposal of the Commissioner, the credits necessary for the operation of the Commission for Children's Rights.
Art. 15. The Flemish parliament decides where the office of the commissioner will be.
Until the beginning of the first coming mandate of the commissioner the rules set in the previous art 8.2 shall apply for the standing commissioner.
The term of five years still applies for the standing commissioner.)