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The Belgian criminal procedure reform: the so-called "Pot pourri II" law enters into force on 29 February 2016
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Florence Danis - Stefaan Loosveld
After a reorganisation of the civil procedure with the "Pot-Pourri I" law, the Belgian government has continued its efforts to reform the judicial system. The "Pot-pourri II" law, which aims at increasing the efficiency, speed and consistency of Belgian criminal justice, was adopted on 28 January 2016, has been published in the Belgian State Gazette last Friday and will thus enter into force on 29 February 2016.
Although a large number of provisions of the new law relate to ordinary crimes or violent crimes, a number of its provisions are of a more general nature and also apply to white-collar crimes. Among the many modifications brought about by the new law, three are worth underlining: (i) the introduction of plea bargaining (ii) the new provisions related to out-of-court settlements, and (iii) the new rules applicable to appeals and oppositions.
Plea bargain
As the government is keen to reduce the backlog in the Belgian justice system, the new law now authorises the conclusion of a plea bargain between the accused and the public prosecutor.
The public prosecutor has now the right to offer to persons accused of crimes of limited importance (which are not punishable by more than five years of imprisonment) the possibility to plead guilty and to agree with the public prosecutor on a sentence, which can then go below the statutory minimum. The scope of the plea bargain therefore concerns most white-collar crime offences.
The consent of the victim is not required and, unlike the settlement, the victim is not even associated with the conclusion of the plea bargain agreement. The victim may only claim redress for its damage by filing a civil petition before the judge, who will be asked to approve and recognise the plea bargain agreement.
Once a plea bargain agreement is reached between the public prosecutor and the indictee, the agreement must be recognised by the judge who has jurisdiction on the merits and who may, at his discretion, approve it or not. In his assessment of the plea bargain agreement, the judge takes into account the free and informed character of the consent of the indictee and the proportionality of the sanction. In case of approval, the sanction is carried out without any possibility to file an appeal against the approval judgment. In case of refusal, the public prosecutor must reschedule the case before another division of the Court and may offer a modified plea bargain.
In terms of timing, if an investigating magistrate leads the investigation, the public prosecutor will only be able to offer such a plea bargain after the case has been referred to a judge who has jurisdiction on the merits. The possibility for the public prosecutor to offer a plea bargain comes to an end as soon as a final decision has been rendered by a court ruling on the merits.
The plea bargain implies an admission of guilt from the indictee, and all the consequences of such an admission in case of confiscation, repeat offences, etc.
For offences that are not punishable by more than two years of imprisonment, the public prosecutor may offer a settlement which includes the suspect's agreement to pay a sum of money and to compensate the victim in order to terminate the criminal case.
Unlike the plea bargain, it does not imply any admission of criminal guilt; however, it constitutes a recognition of the commission of a fault leading potentially to civil damages.
The reform of the criminal procedure provides for two modifications of the current regime of the settlement.
First, the possibility for the public prosecutor to offer a formal settlement comes to an end as soon as a final decision has been rendered by a court ruling on the merits, while the current regime allows a settlement to be entered into even when the case is brought before the court of appeal.
Second, the settlement will be mentioned on the person's criminal record. However, no mention of the settlement will appear on the excerpts of the criminal record which are available to the public on demand.
The current regime applicable to appeals and oppositions will be substantially modified by the new law. The entry into force of the new rules on that topic has been set for 1 March 2016.
The appeal regime
The time period to file an appeal is extended from 15 days to 30 days, as from the delivery of the decision.
The motion of appeal must be reasoned, thus requiring a clear identification of the points of the first instance decision that are disputed. The appeal judge will have jurisdiction to examine the elements disputed in the motion of appeal. This motivation duty applies to all parties, including the public prosecutor, under penalty of inadmissibility of the appeal.
The public prosecutor may withdraw his appeal in the course of the procedure.
The opposition regime
An opposition filed against a decision rendered in the absence of the convicted person, shall only be valid if the convicted person (i) appears in court in the context of the opposition and (ii) is able to justify his/her absence during the first trial by invoking a force majeure or legitimate grounds. Failing the satisfaction of these two requirements, the opposition will be deemed null and void.
The preparatory works of the new law do not comment on, nor do they give examples of, the concepts of force majeure or legitimate grounds, creating uncertainties as regards the interpretation of the new law in that respect.
For any questions or further information, please contact Françoise Lefèvre (+32 2 501 94 15), Joost Verlinden (+32 2 501 94 56), Stefaan Loosveld (+32 2 501 95 21) and Florence Danis (+ 32 2 501 90 28).
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