Belgium

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Contents

Introduction

Quick summary of the context (including the country's recent history)

Belgium is a federal state with a constitutional parliamentary monarchy, characterized by a separation of powers. The powers of the legislator and the executive are therefore limited by the Constitution. The judiciary is independent from the legislator and the government. This independence finds support in a number of constitutional guarantees conferred to judges (e.g. appointment for life, removal from office only possible through a judgment).

The Constitutional Court watches over the observance of the Constitution by the federal and regional legislators, The Court also ensures that Belgian laws are in conformity with rights enshrined in international treaties. It has the power to annul or suspend laws that are violating the Constitution. Moreover, it gives preliminary rulings at the request of any national tribunal or court on the interpretation of laws in the light of the Constitution. In addition to the Constitutional Court, the Belgian judicial system contains another high court, namely the Court of Cassation, of which primary task is to ensure the correct and uniform interpretation of the law.

Considering that Belgium is a Member State of the European Union and a contracting party to the European Convention on Human Rights (ECHR), its judicial system is to be characterised as a multi-layered legal order. Union law in principle supersedes the national law of the Member States (primacy of EU law) and citizens have the possibility to bring their cases before European courts (i.e. Court of Justice of the EU (CJEU) or the European Court of Human Rights), either directly or indirectly (by means of a question for a preliminary ruling on the interpretation of Union law). The ECHR is of direct application in the Belgian legal order, meaning that citizens can invoke the rights laid down in the Convention directly before national courts. In addition, citizens can also lodge an appeal before the ECtHR, after exhausting all national remedies. The impact of the ECHR and the case law of the ECtHR on Belgian substantive criminal law and criminal procedure cannot be overestimated. Similarly, the influence of EU law on national criminal law has increased a lot in the past two decades. In the near future the European Union is expected to accede to the EHCR, which will most likely stimulate further convergence in the case law of the CJEU and the ECtHR as regards fundamental rights protection.

As a result of Belgium’s evolution towards a federal state, the power to adopt criminal legislation has to some extent been decentralized and conferred upon the decentralised entities (i.e. regions and communities). As the law stands, the communities and regions have certain competences of their own regarding substantive and procedural criminal law.

The main body of criminal substantive and procedural law is, however, still to be found at the federal level, primarily in the form of two codes: on the one hand the Code of Criminal Law, and on the other hand the Code of Criminal Procedure (CCP). In contrast to the Code of Criminal Law which has been adopted in 1867, the current Code of Criminal Procedure still dates back to the Napoleonic era, more precisely to the year 1808. It has nonetheless been revised on multiple occasions. An introductory part, called the Preliminary Title, was for example added to the Code in 1878. Another important revision came about in 1998 following the enactment of the so-called ‘Franchimont’ Act, which introduced significant changes in the preliminary investigation in the pre-trial stage.

Other important revisions of the Code of Criminal Procedure have been triggered by serious criminal events. Some reforms have also been based on the suggestions and recommendations made by parliamentary research committees. In the past two decades, special attention was paid to the reform of the pre-trial phase, the position of the victim and the suspect, the reorganisation of the police, the creation of new investigative techniques, as well as the legal position of prisoners. Many of those legislative evolutions were also inspired by the evolving jurisprudence of the ECtHR (supra).

During the course of the 19th and 20th century, Belgian criminal law and criminal procedure definitely became more humane, in particular by attaching greater importance to the legal position and rights of the defendant, by valuing and duly assessing alternative and lighter forms of punishment, and by questioning the goals of criminal law and rethinking the execution of sentences. As opposed to these evolutions, the criminal law has also known an expansion into several domains that were not or less penalized beforehand, and is now more and more intrusive in the day-to-day course of activities.

The criminal process in Belgium falls apart in two stages: (i) the pre-trial stage during which most of the investigation takes places and during which evidence is gathered, and (ii) the trial stage. The large majority of criminal investigations in Belgium are conducted under the authority and supervision of a public prosecutor (the so-called enquête or preliminary investigation). However, sometimes the need for more intrusive investigative powers requires the opening of a judicial inquiry (or instruction), which is a different type of pre-trial investigation conducted under the authority and supervision of an investigating judge (infra).

It should be stressed that the Belgian criminal system puts forward the finding of the truth as the ultimate goal of criminal procedure, thereby however duly respecting fundamental rights of the individual. As in most other systems, Belgian criminal procedure attempts to strike a balance between effectiveness on the one hand and the protection of fundamental safeguards on the other, including for instance the right to a fair trial, the rights of the defence and the presumption of innocence.

Type of system (common law; civil law; hybrid)

While the distinction between common law and civil law systems should not be construed strictly, Belgium can be best typified as a civil law country. There is for instance no general rule of legal or binding precedent in Belgium. That being said, lower courts will usually follow the case law of the higher courts, especially with respect to the case law of the Court of Cassation and the Constitutional Court.

The civil law roots of Belgian criminal procedure are revealed by the preponderant inquisitorial nature of the pre-trial investigative phase. Originally, the pre-trial phase was considered as a secret, written and non-contradictory stage led by the public prosecutor (who operates under the authority of the Minister of Justice) or an impartial and independent investigating judge . Under the influence of human rights instruments, most notably the ECHR and in particular Article 6 of that Convention, those inquisitorial characteristics have been mitigated to some extent (see e.g. the 1998 ‘Franchimont’ Act). Furthermore, during the trial phase, the defendant and the public prosecutor are in principle put on the same footing before the court. The trial phase can thus be said to be rather accusatorial, even though the trial judge has an active role and basically manages the trial.

Furthermore, the role of the injured party is quite important in Belgium, as the victim can trigger the formal opening of a pre-trial investigation by filing a formal complaint before an investigating judge (a so-called constitution de partie civile) or can directly summon the suspect before a criminal court . Nevertheless, although the victim’s action can thus have a determining impact on the start of the public prosecution, s/he can only claim damages and has no say on the sentence.

All in all, Belgium can thus be said to have a hybrid system of criminal procedure which is still predominantly inquisitorial in the pre-trial phase and largely adversarial in the trial phase.

The legal aid situation in the country

State Sponsored legal aid

The right to legal aid is enshrined in the Belgian Constitution but also finds support in the ECHR and the International Covenant on Civil and Political Rights (ICCPR).[1]

In general, there are two levels of legal aid. Firstly, one may obtain a first free legal advice or practical information regarding which steps to take or which organisation to go to.[2] This kind of legal aid is organised and provided for by the Legal Aid Commissions[3] (commissions d'aide juridique), of which there is one in every judicial district.[4] Secondly, people can also request a pro bono lawyer, who is fully or partially paid by the State to defend their case or provide them with substantial legal advice,[5] but the availability of this second type of legal aid is means tested. This kind of legal aid is organised by the Bureaus for Legal Aid (bureaux d'aide juridique), which are to be instituted within the fold of every Bar Association.[6]

In addition, the State will also appoint a lawyer in case the defendant is considered not to be in a position to defend him-/herself, even without a request from the defendant (e.g. in the event of a jury trial)

Sources of defendant's rights

National sources of Defendant's rights

The most important national source of defendant’s rights is the Belgian Constitution of 1831, coordinated in 1994, and in particular Title II of that Constitution entitled ‘the Belgians and their rights’. The Constitution contains rights with regard to equality and non-discrimination, personal freedom, privacy, property, freedom of opinion and religion as well as important principles such as legality, the ability to appear before a judge designated by law, the right to union and to lead a dignified life. The abolition of the capital punishment also finds expression in the Constitution.[7]

Other important national sources of criminal procedure are:

  • the Code of Criminal Procedure of 1808;
  • the 1964 Probation Act;
  • the 1969 Act on the timeframe for searches of private premises;
  • the 1973 Act on ineffective pre-trial detention;
  • the 1990 Act on Pre-trial Detention;
  • the 1992 Police Act;
  • the 2005 Act on the prison system and the legal position of detained persons;
  • the 2006 Act on the Execution of Punishments.

International sources of defendant's rights

The most important international source of defendant’s rights is the European Convention on Human Rights (ECHR) together with its additional Protocols, because of its comprehensiveness, its influence on legal and jurisprudential development, and not in the least because of the fact that the Convention provides for a strong guardian in the form of the ECtHR. In addition, one may note the importance of the International Covenant on Civil and Political Rights (ICCPR) as a complementary instrument to the ECHR. However, generally speaking, this instrument provides less strong protection, as there is no international court to interpret and enforce the Covenant.

Because of its membership of the European Union (EU), Belgium also has to abide by the Charter of Fundamental Rights of the European Union (EU Charter), which became binding at the entry into force of the Lisbon Treaty in 2009 and enjoys the same binding legal status as the EU Treaties. In addition, Belgium has ratified an important number of other treaties in relation to the fields of human rights and humanitarian law.


Pre-trial Procedures

There is no overall exhaustive list of permitted investigative measures provided for by the law. Therefore, in principle any investigative measure that is not prohibited by a legal provision is allowed. However, the potentially broad scope of this ‘permissive rule’ is restricted by, on the one hand, an obligation of loyalty on the part of the investigators,[8] and on the other hand an exclusionary rule which applies, for instance, in cases where the non-observance of procedural rules would amount to a violation of fair trial rights (infra) and would therefore be unlawful.

Different types of pre-trial investigations

The investigation during the pre-trial phase can take two forms: (i) a preliminary investigation led by the public prosecutor (enquête); or (ii) a judicial inquiry (instruction) led by an investigating judge. In both types of investigations the goal is to identify the suspect and to see whether there are sufficient grounds to bring charges against him/her. However, the difference is that the involvement of an investigating judge creates the possibility to proceed to more intrusive investigative measures. The Code of Criminal procedure explicitly states that the investigating judge conducts the investigation à charge and à décharge, meaning that s/he looks for both incriminating evidence and evidence which could prove the innocence of the suspect,[9] whereas a prosecutor only has the obligation to ensure that the evidence is collected in a legal and loyal manner.[10]

Preliminary Investigation

A preliminary investigation led by the public prosecutor is opened at the prosecutor’s initiative, after being informed by the police that an offence has taken place or after a complaint by an injured party.

Judicial Inquiry

By contrast, there are three ways to initiate a judicial inquiry: (i) at the request of the public prosecutor; (ii) after a formal complaint of the injured party involving a ‘civil party petition’ (constitution de partie civile); or (iii) on the investigating judge’s own initiative, e.g. when s/he catches a suspect red-handed or, more likely, in the context of a mini-instruction (infra). In the first two situations the investigating judge is obliged to start the investigation.

Mini-Instruction

The so-called mini-instruction is a kind of intermediate way, situated between a normal enquête and a judicial inquiry, which offers the prosecutor the possibility to proceed to more intrusive investigative measures without having to request a judicial inquiry.[11] In case of a mini-instruction, the public prosecutor asks the investigating judge for a punctual authorisation for a specific intrusive investigative measure, while remaining in charge of the investigation. Not all intrusive measures can be conducted in this way though. The most intrusive ones (e.g. search of private premises and a wire tap) still necessitate the opening of a judicial inquiry. Moreover, whenever the investigating judge is requested to give an authorisation in the context of a mini-instruction, s/he has the possibility to appropriate or ‘evoke’ the case, which implies opening a judicial inquiry (supra) and taking over the lead of the investigation from the prosecutor.

Other Pre-Trial Measures

Apart the possibility of a mini-instruction, a prosecutor also enjoys more extensive investigative powers whenever the suspect is caught red-handed, that is in the very act of committing an offence.[12]

The 2003 Act on Special Investigative Techniques has also created new possibilities for the public prosecutor to proceed to certain intrusive as well as proactive investigative measures (such as an observation or infiltration), without the intervention of the investigating judge. Such techniques are usually limited to cases where serious offences are suspected.

In sum, even though a preliminary investigation conducted by the prosecutor is traditionally said not to allow for any intrusive investigative measures, the coercive powers of the prosecutor have been – and continue to be – extended.

Conclusion of the investigation

The preliminary investigation run by the public prosecutor can be concluded in several ways: a direct summons before a trial court; a decision not to prosecute; or an out-of-court settlement, at the initiative of the prosecutor.[13]

In the event of a judicial inquiry, the pre-trial stage is always concluded by a hearing before an investigative court (the chambre du conseil or, upon appeal, the chambre des mises en accusation), which makes a first ruling on the lawfulness of the pre-trial phase and checks whether there is a prima facie case justifying a trial. In case of illegal evidence (infra), the investigative court may proceed to a so-called ‘purification’ of the file, which means that the illegally obtained evidence will be physically removed from the file in order not to influence the trial court’s subsequent judgment on the merits. The investigative court may also decide that the investigation is not yet complete and send the case back for additional investigative measures. If the investigative court concludes the investigation shows there is sufficient evidence indicating the suspect’s guilt, it will refer the case to a trial court. In the opposite situation, it will deliver a nonsuit, which puts an end to the investigation. After a nonsuit, the case can only be reopened in case new elements are discovered.

Exceptionally, the investigative court may act as a trial court, in which case it judges on the merits of the case. However, acting as a trial court, the investigative court is only entitled to take two types of decisions: either an internment (i.e. a custodial measure for persons who are seriously mentally ill at the moment of the verdict and require psychiatric treatment); or a suspended conviction (i.e. a guilty verdict without imposing a sentence, provided that the offender does not reoffend during a certain period of time).

Police procedures

The police have the responsibility to detect crimes and to establish the facts; and to notify its observations to the public prosecutor. The police does not, however, prosecute crimes themselves. Depending on the type of pre-trial investigation, the police act under the supervision of the public prosecutor or the investigating judge. Not all police officers are allowed to conduct investigative acts; in order to do so, they need to have a certain capacity.

Complaint/information

A preliminary investigation may be opened after the complaint of an injured party. However, a complaint is usually not an indispensable requirement (except for some particular offences, such as stalking), neither does it oblige the prosecutor to open a criminal investigation. In Belgium the principle of discretionary prosecution applies, meaning that it is up to the public prosecutor to decide whether it is appropriate to prosecute a case. The public prosecutor may thus decide not to prosecute, even after the complaint of the victim. However, s/he can always change his/her mind and reverse that decision as long as the prosecution is not statute-barred.

The injured party has, however, the possibility to bypass the public prosecutor’s discretionary power by filing a formal complaint including a civil party petition before the investigating judge (supra). This type of complaint will trigger the commencement of a judicial inquiry and obliges the investigating judge to conduct an investigation.

Arrest, Search and Seizure Laws

Arrests and searches constitute coercive or intrusive investigative measures which in principle require the intervention of an investigating judge.[14] This requirement is however mitigated in the event a person is caught red-handed.

Moreover, the seizure of moveable goods does not require the intervention of an investigating judge and can thus be ordered by a prosecutor within the scope of a preliminary investigation.[15] Real estate can in principle only be seized if ordered by an investigating judge,[16] unless the suspect is caught in the act of committing a criminal offence.

The person subject to or harmed by the seizure may make a request to the prosecutor (in case of a preliminary investigation) or to the investigating judge (in case of a judicial inquiry) that the seizure stops and that the goods are returned to him.[17]

Stops and Frisks

Since 1992, there is a general legal basis for measures such as stops and frisks. Those measures can be divided into three categories: administrative, security and judicial frisks.[18] Only judicial frisks are possible in and specific to pre-trial investigation; therefore the discussion below is limited to this type of frisk.

Judicial frisks can be performed by members of the judicial police on individuals subject to an arrest warrant, as well as on individuals who are under the suspicion of carrying some elements of evidence related to a criminal offence. A judicial frisk may not take more time than necessary, with a maximum of 6 hours.[19]

A frisk is to be distinguished from an actual body search. An actual body search implies that one’s sexual integrity is being offended (a condition which is interpreted quite narrowly by the courts). Because of its intrusive nature, an actual body search can only be ordered by a judge, unless the person is caught in the act of committing a criminal offence.[20]

Arrests

In addition to the ECHR which imposes a number of conditions under which a person may be deprived of his/her liberty,[21] the Belgian Constitution provides that a person can only be detained on the basis of a well-reasoned judicial decision (infra), which has to be issued and served on that person within 24 hours.[22] This means that a suspect cannot be deprived of his/her liberty for more than 24 hours by the police or the prosecutor, unless the investigating judge issues an arrest warrant.[23] The starting point for that 24 hours’ period is normally (but there are some specific exceptions) the moment when the individual loses his freedom to go and stand where s/he pleases. However, this moment does not necessarily coincide with the arrest by the police or the public prosecutor. An arrest warrant marks the beginning of pre-trial detention (infra).

With respect to the arrest made by the police or the public prosecutor, one should distinguish between the situation where the suspect is caught red-handed and the situation where s/he is not. In the former situation, a police officer or a private person may stop the suspect and prevent him from fleeing. Yet, the formal decision on the arrest of the suspect needs to be taken by a police officer of a higher rank, who notifies the public prosecutor of the arrest. If the suspect is not caught red-handed, then the decision to arrest the person can only be taken by the public prosecutor.

A judicial arrest by the police should be distinguished from the situation where the police issue an “administrative arrest” for reasons of overall security (e.g. public intoxication). Administrative arrests are valid for 12 hours and do not require the intervention of a public prosecutor.

The initial period of 24 hours after the arrest by the police or the public prosecutor can be prolonged once with another 24 hours.[24] To this end, the investigating judge has to issue a special order. This order must contain the following reasons: (i) serious indications of guilt in relation to a crime or a misdemeanour (i.e. the two most serious categories of offences under Belgian criminal law), and (ii) the special circumstances of the case. A prolongation order often precedes an actual arrest warrant, but it is also possible that the suspect is released. Furthermore, the arrest warrant issued by an investigating judge should be distinguished from an order to appear. This order is also issued by the investigating judge, but for the mere purpose of forcing a suspect to appear before the judge for interrogation. Such an order is thus only used in cases where the suspect refuses to show up voluntarily and does not necessarily have to be followed by an arrest warrant. Again, the deprivation of freedom following the issuance of an order to appear cannot last longer than 24 hours.

Finally, it should be noted that there exists a specific EU legal framework for European arrest warrants, which is based on the principle of mutual recognition and which considerably facilitates the arrest and the subsequent ‘surrender’ (i.e. the term used for extraditions between EU Member States) of suspects and convicted persons in the EU context.

Pre-trial detention

Start and conditions for pre-trial detention

Pre-trial detention is regulated by the 1990 Act on Pre-trial Detention. Belgian law explicitly prohibits the use of detention as a method of immediate punishment or as a measure of force.[25] As noted above, pre-trial detention formally starts with an arrest warrant from an investigating judge.

Such an arrest warrant is subject to a number of material and procedural requirements: (a) an arrest warrant can only be delivered if there are serious indications of the suspect being guilty and if s/he can be punished with a prison sentence of at least one year,implying that pre-trial detention is only possible for crimes and misdemeanours;

(b) an arrest warrant is only possible in case of absolute necessity for public safety.[26] If the statutory maximum penalty is 15 years or less, the requirement of absolute necessity has to be further justified based on one of the following reasons: the investigating judge fears that the suspect (i) would commit new crimes or misdemeanours; (ii) would try to escape, (ii) would attempt to make evidence disappear, or (iv) would collude with third parties. Finally, as noted above, pre-trial detention should not be ordered with the aim to punish the suspect, as s/he is still presumed to be innocent.

(c) The procedural requirements for an arrest warrant are as follows:

(i) before a person is confronted with an arrest warrant, s/he should be interrogated by an investigating judge (except when the person is a fugitive or is hiding somewhere). The investigating judge cannot delegate this task to the police or the public prosecutor. During this interrogation the investigating judge also has to warn the suspect that s/he may be the subject of an arrest warrant in order to give the suspect the possibility to make comments as regards the absolute necessity requirement;
(ii) the suspect is entitled to a confidential conversation with a lawyer before this interrogation and has the right to have his lawyer present during the interrogation;
(iii) the investigating judge has to sign the arrest warrant and serve it on the suspect within 24 hours (supra). The suspect is receives a copy of the interrogation report.

If these requirements are not respected, the suspect must be released. In that case, a new arrest warrant can only be issued against him/her in the event of new and serious circumstances, or if s/he refuses to appear for a certain procedural measure or act.[27]

There are two alternatives to pre-trial detention in prison: the investigating judge can instead order that the detention is carried out under electronic supervision at the suspect’s home; or s/he can decide to release the suspect while imposing certain conditions upon him/her.

Judicial control on pre-trial detention

While it is not possible to appeal against the decision of the investigating judge to issue an arrest warrant, the pre-trial detention is subject to the periodic judicial control of the investigating courts, i.e. the so-called Chambre du conseil (first instance) and Chambre des mises en accusation (appeal). Regardless of this periodic control, the investigating judge can decide at any moment in time to release the suspect or to change the modalities of his/her pre-trial detention (prison versus electronic supervision at home, supra).

The first review is carried out by the Chambre du conseil within 5 days after the arrest warrant was issued. The Chambre du conseil will check the legality of the arrest warrant and the absolute necessity of taking the suspect in pre-trial detention. If the Chambre du conseil confirms the detention, the suspect can be kept in pre-trial detention for another month. From then on the suspect will have to appear on a monthly basis before the Chambre du conseil (with some exceptions for the most serious offences which are tried by the Court of Assizes).

The suspect can appeal against the decision of the Chambre du conseil before the Chambre des mises en accusation. S/he has 24 hours to do so.

The suspect or his/her counsel may ask for a summary interrogation within ten days before every appearance before the investigating courts. Such an interrogation provides the opportunity to get an update on the current situation of the investigation and to raise the appropriateness of additional investigative measures.

There is no absolute time-limit for pre-trial detention. It is thus possible that a suspect spends years in prison awaiting his/her trial. That being said, in the light of Article 5 (3) ECHR, a person in pre-trial detention should be brought before a trial court within a reasonable period of time.

Furthermore, there are special rules concerning the judicial control on prolonged pre-trial detention. For instance, the Code of Criminal Procedure provides for the automatic supervision by the Chambre des mises en accusation if a suspect is kept in pre-trial detention for more than six months without a decision on the referral to a trial court, which puts an end to the pre-trial stage.[28]

Compensation for unlawful or ineffective pre-trial detention and impact on later prison sentence

Suspects who experienced either unlawful (i.e. pre-trial detention in violation of the legal rules) or ineffective (i.e. unnecessary) pre-trial detention can claim damages or full compensation under the 1973 Act on Ineffective Pre-trial Detention. This right also finds support in the ECHR.[29]

Finally, if the individual who was kept in pre-trial detention is ultimately convicted to imprisonment, the time spent in pre-trial detention will be credited to the prison sentence s/he has to serve.

Searches

Given the right to personal privacy laid down in the Constitution and the ECHR,[30] searches of private premises can only be performed under certain conditions. First, there has to be an explicit legal basis. Second, the search requires a warrant issued by an investigating judge, unless the person living in the house consents in writing with the search or if s/he is caught in the act of committing the offence. Third, a search of private premises cannot used proactively, with a view of discovering a criminal offence. Mere fishing expeditions are not permitted.

Fourth, the search can only be executed in a limited timeframe. In principle, it has to be carried out between 5am and 9pm, save in a number of limited circumstances (e.g. when a person is caught in the act).[31]

Enforcing the Rules (Exclusionary Rule, Nullity and other procedures to protect against illegal police procedures)

According to the Constitution, a person can only be prosecuted in the situations and in the manner determined by law.[32] Yet, as mentioned earlier, the police may take any investigative measure which is not expressly forbidden by law or a general principal of law, as there is no exhaustive list of investigative measures laid down in the Code of Criminal Procedure or any other law.

However, the police are not allowed to commit a criminal offence with a view to discovering a person’s criminal offence. That being said, the 2003 Act on Special Investigative Techniques created a legislative framework determining the restrictive conditions under which the police are allowed to engage in criminal activities.

As far as illegally obtained evidence is concerned, the exclusionary rule used to apply quite strictly, meaning that in principle all illegally obtained evidence was excluded. Exclusion can take two forms in practice. Either the criminal file is ‘purified’ by the investigating courts during the pre-trial stage (this is only possible in case of a judicial inquiry), meaning that the illegally obtained evidence is physically removed from the file, or the evidence remains in the criminal file but is disregarded by the trial court judging on the merits of the case. In some cases unlawful police action may, however, have more far-reaching effects and imply the inadmissibility of the criminal action as a whole, in particular in the event of provocation.[33]

In 2003 the application of the exclusionary rule was substantially mitigated, as a consequence of the Court of Cassation’s so-called ‘Antigone’ judgment’.[34] Since then, illegal evidence is only to be excluded based on one of the following criteria:

  1. the evidence has been obtained in violation of formalities that are prescribed under the penalty of being null; or
  2. the way the evidence has been obtained undermines the reliability of the evidence; or
  3. the use of the evidence would imply a breach of the right to a fair trial.

In judgments of 2011 and 2013 the Court of Cassation seemed to add a fourth criterion for the exclusion of illegal evidence, namely the violation of a substantial formality that touches upon the organisation of the courts.[35] The precise meaning of this criterion was, however, not entirely clear.

In October 2013, the legislator adopted a new law codifying the Antigone case law of the Court of Cassation. This law introduced a new Article 32 in the Preliminary Title of the Code of Criminal Procedure. Of the aforementioned four alternative criteria, only the first three have been included in this new provision. Parliament thus refused to retain the fourth criterion.

Lineups and other identification procedures

There are no specific rules on lineups. However, as noted before, the police can use any investigative measure that is not forbidden by law.

Interrogation

An interrogation can be conducted by the police, a public prosecutor or an investigating judge. However, as noted above, when the interrogation precedes the issuance of an arrest warrant, it has to be conducted by the investigating judge; s/he cannot delegate this task.

Torture or other forms of physical or psychological coercion are never allowed, so also not during the interrogation. The prohibition of torture and inhuman or degrading treatment or punishment is laid down in Article 3 ECHR. There is extensive case law of the ECtHR on Article 3 ECHR.

The minimum rights which apply to all persons who are interrogated, regardless of their status[36] include:

(a) every interrogated person should be informed about the facts which s/he will be questioned of;
(b) s/he may request that all questions and answers are written down word for word;
(c) s/he may request that other investigative measures are taken or that another person is questioned too;
(d) every person has to be warned about the fact that his/her declarations can be used as evidence in a court of law as well as informed that s/he is not obliged to give self-incrimination evidence;
(e) any interrogated person may bring and use documents in his/her possession and requests that those documents are attached to the interrogation report;
(f) at the end of the interrogation, s/he has a right to review the interrogation report and ask for amendments before signing the report;
(g) every interrogated person is entitled to receive a copy of the interrogation report.

Witnesses and Suspects

It is important to make a distinction between suspects and witnesses, as they will have different rights both before and during the interrogation. A person who is interrogated as a witness,[37] in principle has to take an oath.[38] S/he is obliged to answer all questions, except in specific cases where the witness has a legal obligation of secrecy (e.g. journalists, lawyers, doctors etc.), and to speak the truth. What is more, if necessary, witnesses are obliged to show up for questioning and can be compelled to do so, with a financial penalty or manu militare based on an order to appear issued by an investigating judge (supra).[39] A witness does not have the right to consult a lawyer before the interrogation and neither can his/her lawyer be present during the interrogation.

It is, of course, possible that a witness becomes a suspect during the interrogation. In that case, the interrogators have to suspend the interrogation and inform the person in question of his/her rights as a suspect.[40]

There are special rules for minors[41] and witnesses which need protection.[42] Fully anonymous testimonies (as a form of witness protection) are allowed, but only under strict conditions (e.g. the right for the defendant to be confronted with and examine witnesses against him) and it is not possible to convict an accused on the sole basis of an autonomous testimony. As a result, an anonymous testimony can at most be considered supportive evidence. That being said, recent case law of the ECtHR seems to suggest that anonymous testimonies could be used as a sole or decisive evidence, provided the applicable procedure allows for sufficient counterbalancing.[43] It remains to be seen how this case law will further evolve.

For obvious reasons, suspects have more rights than witnesses,[44] including:

(i) they should receive a letter of rights before the interrogation, which explicitly informs the suspect of his right to remain silent and the privilege against self-incrimination;
(ii) s/he has a right to consult a lawyer prior to the interrogation (infra);
(iii) has to be informed of the fact that s/he can leave the interrogation at any time, unless s/he would already have been deprived of her/his liberty either by the police, a public prosecutor or an investigating judge (supra). In the event s/he is deprived of his freedom, s/he has the right to legal assistance during the interrogation (infra) and to medical care.
(iv) in contrast to a witness, a suspect cannot be obliged to provide a sworn statement, as they would be at odds with his/her right to remain silent. Nevertheless, should the interrogators require the suspect to take the oath, then all statements made under oath are to be considered void and thus have no evidentiary value.

Right to Counsel

Since 2011, the 1990 Act on Pre-trial Detention provides for the right to legal assistance before and in some cases during the interrogation.[45] Before this amendment a lawyer could never be present during the interrogation. This major legisIative change was triggered by landmark case law of the ECtHR in Salduz,[46] which has been confirmed and extended in subsequent cases.[47] The ECtHR considers the assistance of a lawyer during pre-trial questioning crucial for the overall right to a fair trial (infra).

All suspects now have a right to consult a lawyer before questioning.[48] However, only suspects who are deprived of their liberty are entitled to have a lawyer present during the interrogation.[49] What is more, the role of the lawyer during questioning remains fairly limited. In principle, s/he cannot actively intervene in the interrogation, unless s/he considers there is a violation of the right to remain silent or in case of unlawful coercion.[50] A violation of the right to legal assistance (or the right to be informed of that right before questioning, supra) can lead to an acquittal in certain cases.[51] It should be noted though that there are a number of exceptions to the right to legal assistance.[52]

It remains to be seen whether the distinction between the above two categories of suspects and the potential exceptions are in conformity with the right to a fair trial in Article 6 ECHR and the above case law of the ECtHR.

Rights of the accused at all time

As has been noted before, the rights of the defendant within the Belgian legal system have been strongly influenced by the case law of the ECtHR, more in particular its case law concerning Article 6 ECHR. While that provision in principle only governs the trial phase, the ECtHR has nonetheless confirmed its relevance for the investigative stage because pre-trial investigative measures are hugely important for the subsequent trial. Some procedural missteps or errors in the pre-trial stage may be so serious that the suspect can simply not have a fair trial anymore (infra). The right to a fair trial is indeed appreciated in globo by the ECtHR, meaning that the Court takes into account the entire criminal process; this right may thus be breached due to a procedural misstep in the pre-trial phase.

Criminal Law System

Double jeopardy

The prohibition against double jeopardy is referred to as the ne bis in idem rule in the European context. It is considered a general principle of law under Belgian law and in the EU legal order, and is enshrined in the 7th protocol to the ECHR and in Article 50 of the EU Charter.[53] Ne bis in idem implies that no one can be tried or punished twice for an offence (referring to the same facts rather than the legal qualification given to those facts) for which s/he has already been convicted or acquitted either in Belgium or in another EU Member State. Any final decision in a criminal proceedings will be taken into account, even an out-of-court settlement with the public prosecutor. The principle applies to any criminal proceedings in the meaning of Article 6 ECHR, even if those proceedings are not formally considered criminal under domestic law. Hence, it may even apply to administrative proceedings which could result in punitive administrative sanctions.[54] Ne bis in idem does not exclude parallel disciplinary, administrative and criminal action, as long as there is no final decision.

Legality principle

Besides being a general principle of law, the legality principle is laid down in the Constitution[55] and the ECHR.[56] According to this principle, only acts that are defined by law as criminal offences can be punished and they can only be punished with the sanctions provided for by law (nullum crimen, nulla poena sine lege). Moreover, the criminal law should be accessible and foreseeable (lex certa). In other words, criminal law must give a fair warning.

The legality principle also includes two related principles: (i) the prohibition against retroactive criminal law[57] and (ii) the retroactive application of milder or more lenient criminal law.[58] The former implies that criminal law provisions adopted after the facts can in principles not be applied. However, according to the latter principle, the criminal law adopted after the facts must be applied to all cases that have not yet been finally tried if it results to be more lenient.

Presumption of innocence

The presumption of innocence is a general principle of law[59] and is provided for by Article 6 (2) ECHR and Article 14 (2) ICCPR. Every person is presumed to be innocent as long as s/he has not been proven guilty according to law. It is therefore not up to the accused to prove his innocence; that is the prosecutor’s task. In case of doubt, the accused should be acquitted. Since the presumption of innocence applies throughout the whole proceedings, the investigating courts in the pre-trial phase are not allowed to rule on the issue of guilt, except in a few exceptional situations.

Standards of proof and standards for conviction

In principle, every type of evidence is allowed, as long as it is obtained in a legal manner (supra). However, in order to be able to convict someone, the trial judge must be absolutely convinced (referred to as l’intime conviction du juge) that the accused is guilty of the offences which s/he has been charged with. A mere strong possibility or probability that the defendant has committed the punishable act does not suffice.

Capital punishment

Capital punishment has been abolished in Belgium, both in time of peace and war.[60] The Belgium has also ratified the 6th and the 13th Protocol to the ECHR, which abolish the death penalty respectively in time of peace and war.

Ex Post Facto punishment

See above: prohibition against the retroactive application of criminal law.

Right to medical care

When a person is kept in detention, s/he has a principled right to medical care.

Fair Trial Rights

Freedom from prolonged pre-trial detention

See above: no absolute time-limit for pre-trial detention, but suspects held in pre-trial detention are entitled to trial within a reasonable period of time (Article 5 (3) ECHR). Moreover, special rules concerning judicial control on prolonged pre-trial detention (supra).

Freedom from punishment

See above: legality principle, no punishment without law.

Right to counsel

See above: right to legal assistance as regards the interrogation. An accused has the right to be represented by a lawyer, but may also choose to defend him/herself.[61]

Right to habeas corpus

In addition to the periodic judicial control by the investigating courts on pre-trial detention, a detailed suspect can request to be released on a regular basis.

During the execution of a prison sentence, the convicted person can ask that (i) s/he is released on parole after having served part of his/her sentence or (ii) his/her sentence is further executed under electronic supervision. S/he may also request a short-period leave from prison. The availability of these options depends on the seriousness of the committed crime, on the time already served in prison and on the behaviour of the convict.

Right to a fair trial

The right to a fair trial is guaranteed by Article 6 ECHR and consists of several aspects, such as the right to a public hearing before and independent and impartial tribunal, the right to be tried within a reasonable time, and the right to remain silent.[62] Article 6 ECHR also contains some more specific defendants' rights such as the right to be informed promptly of the charges against him/her, the right to free assistance of an interpreter (including the right to translation of essential documents) and the right to have adequate time for the preparation of his/her defence.[63] Whether the right to fair trial has been observed, will be assessed on the basis of an in globo evaluation, taking into account all aspects of the pre-trial and trial stages.

The trial must in principle not only consist of a public hearing; it should also be adversarial, giving the defendant the possibility to present his/her arguments in order to refute the allegations made against him/her. Moreover, the right to a fair trial has been observed, will be assessed on the basis of an in globo evaluation, taking into account all aspects of the pre-trial and trial stages.

The trial must in principle not only consist of a public hearing; it should also be adversarial, giving the defendant the possibility to present his/her arguments in order to refute the allegations made against him/her. Moreover, the right to a fair trial implies requires an equality of arms between the defendant and the public prosecutor. In addition tot he right to present one's arguments to the court in an equal manner, examples of that equality of arms principle include the right for all parties to have access to the file and the right to have equal access to remedies. In practice, the equality of arms principle may sometimes less firmly be established. It should for example be noted that not every pre-trial measure of which a record is held in the file (e.g a ballistic or psychological examination or the interrogation of witnesses) will be done anew in the presence of the defendant during the trial stage. (It should be recalled that, while the trial stage is to a large extent adversarial, the pre-trial stage remains largely inquisitorial, secret and written by nature.) The trial court will mainly limit its role to verifying what is in the file and to giving the defendant the possibility to put forward his/her remarks and arguments.

Furthermore, the right to a fair trial finds further precision in the requirement that the evidence adduced should be lawfully obtained and that counter-evidence should be possible.

The defendant should have the possibility to question witnesses, both those who are in favour of and those that are against his case. The right is however not absolute; it is the judge who will determine which witnesses will be questioned (again) on trial (supra) and which questions can be asked to whom. Moreover, there is no cross-examination by the parties; it is the trial judge who will actually question the witnesses.

Right to notice of charges

The defendant also has a right to be promptly informed of the charges against him/her. This information should be given in a language which s/he understands and in detail.[64] The information should address both the legal qualification and the underlying facts.

The right to a fair trial implies that the defendant has the necessary time and means to prepare his/her defence. This implies that s/he should be communicated in a timely manner the elements on which the claim against him/her is vested.

Under Belgian law, a specific obligation exists for the investigating judge to formally charge a suspect as soon as there are serious indications of guilt.[65] That being said, the status of 'formal suspect' may also ensue from the fact that the name of the suspect appears in the request of the public prosecutor to open a judicial inquiry or in the petition of the civil party (supra and infra).

Once a person achieves the status of formal suspect, the investigating judge cannot decide on his/her own motion to drop that status. The formal suspect will then necessarily have the appear before the investigation courts, which will evaluate the pre-trial investigation and decide whether there are sufficient indications of guilt for his/her committal to trial.

In order to be able to exercise the right to be informed of the charges and underlying facts, the defendant can also request a copy of the file. This request can even be made during the pre-trial phase, as of the moment s/he has been formally charged by the investigating judge.[66]

= Right to non self-incrimination

A suspect has the right to remain silent. This right includes a privilege against self-incrimination or the right not to incriminate oneself. Therefore, s/he can also refuse to cooperate with the investigation. Courts are not allowed to draw negative inferences from the suspect's silence.

Moreover, physical and other types of coercion are not allowed to extract confessions from a suspect. It results from the case law of the ECtHR that the privilege against self-incrimination is primarily closely linked to respecting the suspect's will to remain silent. For this reason, the right does not apply to material which has an existence independent of the suspect's will, such as blood, urine or DNA samples, or documents acquired pursuant to a warrant.[67] The defendant can be thus forced to cooperate in this respect. Nevertheless, the limit imposed by the prohibition on torture as well as degrading or inhuman treatment needs to be respected at all times.[68]

Right to a speedy trial

The defendant has a right to be tried by an impartial and independent tribunal within a reasonable time.[69] What is reasonable will vary from one case to another and will be assessed taking into account the following criteria:

(a) the complexity of the matter;
(b) the conduct of the judicial authorities; and
(c) the conduct of the suspect/accused.

Hence, even though the suspect enjoys the right to remain silent and has no obligation to to cooperate with the authorities (supra), his/her conduct may play a role in evaluating whether the reasonable time-limit has not be exceeded.

The ECtHR has ruled that the compensation for a violation of the right to be tried within a reasonable time should be adequate and proportionate to the seriousness of the violation.[70]

At the national level, the consequences of a violation of the right to be tried within a reasonable time are regulated by the Preliminary Title of the Code of Criminal Procedure.[71] According to Article 21ter of the Preliminary Title of the Code of Criminal Procedure, trial courts can either impose a penalty below the statutory minimum or simply pronounce a guilty verdict without imposing a sentence.

In addition, the Court of Cassation has ruled that the Chambre du conseil (which, as noted before, only intervenes in case of a judicial inquiry) can declare the criminal claim inadmissible if the rights of the defence have been seriously and irretrievably damaged due to the violation of the right to be tried within a reasonable time. In other less serious cases, the Chambre du conseil may establish the violation of the right to be tried within a reasonable time and commit the case for trial, after which the trial court is bound to give a proper response to this violation, in accordance with Article 21ter of the Preliminary Title of the Code of Criminal Procedure.[72]

Right to a trial by jury

There is no absolute right to a jury trial under Belgian law. Originally, all crimes were to be brought before a court of assizes. However, considering the high costs and the slowness of a jury trial, the Belgian legislator has increasingly limited the use of jury trial over time. Today, only the most serious crimes (such as murder), political offences and press offences (yet with the exception of press offences motivated by racism or xenophobia) are tried by the Court of Assizes.[73] All other criminal cases (more than 99% of all cases) are tried by professional judges, without a jury.

Right to impartial judge

According to the ECHR, a suspect/accused has the right to be heard by an impartial and independent tribunal established by law.[74] Both requirements are also regarded to be general principles of Belgian law, even though only the independence of the judiciary explicitly enshrined in the Constitution.[75] Similarly, the Constitution also contains the right to be tried by the competent court, as foreseen by law. [76] The latter is meant to function as a safeguard against the creation of exceptional courts.

These standards apply to all judges, including investigating judges. However, they do not apply to the public prosecutor, who is a party to the criminal proceedings. The public prosecutor is nevertheless bound to uphold a standard of loyalty.

To ensure the independence and impartiality of the judiciary, court hearings are in principle publicly accessible (with some exceptions, infra), and judges are appointed for life and cannot combine their office with certain other activities.

Impartiality basically consists of two aspects: subjective and objective impartiality. The former refers to the personal conduct of the judge in a particular case; the latter implies that a judge should offer sufficient guarantees to exclude any legitimate doubt of partiality. This implies, for instance, that an investigating judge is not allowed to try a case which s/he investigated in an early stage of the proceedings.

Right to Appeal

A defendant has the principled right to appeal, which finds support in the 7th Protocol to the ECHR and the ICCPR.[77] However, there are a few exceptions to this principle under Belgian law, most notably for jury trials and for cases in which one of the accused is a judge. The latter are tried by the court of appeal acting as a court of first and final instance.

See also infra: Other grounds for appeal.

In addition to the regular appeal (i.e. against a judgment of the court of first instance) where the case is fully treated anew (infra), there is the possibility to lodge an appeal against a final judgement of the court of last instance before the Court of Cassation. It should, however, be noted that this appeal will only regard the legal aspects of the judgment. The Court of Cassation does not rule on the facts of the case; its review is limited to the interpretation of the law and the application of that law to the facts (including the legal qualification of those facts).

Right to a public trial

The right to a public trial (or rather: the right to a public hearing) is safeguarded by the Constitution and is also laid down in the ECHR.[78] As far as the trial hearings are concerned, the Constitution provides that the public nature can be limited in the event of a threat to public order or morality. As far as the pronouncement of the verdict is concerned, the Constitution does not provide for any exceptions.

The requirement of a public hearing in principle does not apply to the investigating courts in the pre-trial stage unless they exceptionally decide on the merits of the case.

Avenues to protect rights

Exclusionary Rule or Nullity of Procedure

See above: illegally obtained evidence. In addition, it should be noted that many violations of procedural rules are not sanctioned for lack of a specific nullity or other penalty in the law. [See the exclusionary rule, whose application is limited to certain types of illegally obtained evidence only].

Civil Action

In Belgium, victims can be full parties to the criminal proceedings, with extensive rights. Victims can even initiate the prosecution. That being said, the criminal action should still be distinguished from the civil action, as a victim can, for instance, not ask the criminal court to impose a sentence; s/he can only ask damages. The precise interplay between the civil and criminal action is quite complicated; this report only outlines the main principles.

The victim can always choose to bring a civil action for harm resulting from an offence before a civil court or before a criminal court.

This requires a further distinction. In case of petty offences and misdemeanours, the victim can directly summon the suspect before a criminal court, without the intervention of a public prosecutor. The criminal court will then consider both the criminal and civil aspects of the case. With respect to crimes, the victim can institute the criminal proceedings by placing a formal complaint with the investigating judge (constitution de partie civile, supra).[79] The investigating judge is then obliged to conduct an investigation; the public prosecutor may decide to join the prosecution, or not.[80] Conversely, it also possible for a victim to join the criminal proceedings initiated by the public prosecutor or (in some exceptional cases) by the investigating judge.[81]

It is even possible for the victim to bring his/her claim simultaneously before a civil court and a criminal court. However, in that case the criminal proceedings will suspend the civil action until a final verdict has been rendered. This situation is referred to by the adage le criminal tient le civil en état and is aimed at avoiding conflicting judgments.

Rights in Prison

The 2006 Act on the Execution of Punishments introduced significant reforms in the execution of prison sentences. The most important change was the creation of a supervision regime by the post-conviction courts (the so-called tribunaux d’application des peines) for prison sentences.[82] Before 2006, the supervision on the execution of prison sentences was performed by the Ministry of Justice. Even under the new law, the Ministry still has some autonomous competences (infra).

The 2006 Act on the Execution of Punishments makes a distinction between sentences of up to three years and sentences of more than three years. For the sentences of up to three years, the new regime has not yet entered into force as it requires a lot of practical adjustments to the criminal system which have not yet been put in place. The entry into force has already been postponed more than once and is currently foreseen for 1 January 2015. Until that date the Ministry of Justice still supervises the execution of the ‘shorter’ sentences. So for now, only prison sentences of more than three years are supervised by the tribunaux d’application des peines.

The Ministry of Justice has the following autonomous competences with respect to the execution of prison sentences:

  • the possibility to confer a permit to temporarily leave prison in the event of special circumstances (e.g. death of a family member) or for the purpose of preparing parole (only available within the two years prior to the earliest moment of parole);
  • the possibility to grant penitentiary leave (only available within one year prior to the earliest moment of parole);
  • the possibility to interrupt the execution of the sentence because of serious and exceptional family circumstances.

The 2006 Act on the Execution of Punishments provides for several tools to reduce the harshness of detention with the ultimate purpose of encouraging re-integration of the convicted person into society. To this end, the tribunaux d’application des peines can take recourse to:

  • Limited detention: the convict may leave prison during the day for a number of hours;
  • Electronic supervision instead of actual detention in prison;
  • Conditional release (parole);
  • Temporary release in anticipation of expulsion (in the event the convict has lost the right to stay in Belgium) or extradition (in the event that a measure was asked to and granted by the Belgian State);

Whereas there exist several opportunities to mitigate or shorten the detention in prison, these procedures often take long due to the fact that various authorities have to give their advice. If a convict wants to apply for conditional release, s/he has to present his/her plans for re-integration in society.

Conditions of confinement

Since 2005, important principles regarding the conditions of confinement have been enshrined in the 2005 Act on the prison system and the legal position of detained persons. Before this law, the intra muros legal position of detainees was hardly regulated; detainees usually had to rely on internal regulations, which differed from one prison facility to another, and on ad hoc favours.

For a start, the 2005 Act explicitly states that the deprivation of freedom should be executed in conditions that respect human dignity, that pay due regard to the self-respect of the detained individual and that call upon his/her individual and social responsibility.[83] The convicted person should not be exposed to any other limits than those laid upon him by the penal conviction, those that are inherent to confinement in prison or those provided for by law.[84] The law mentions explicitly that any detention harm that can be prevented, should be prevented.[85]

Prisoners can have their say in matters that touch upon their common interest.[86] All decisions taken in the framework of the 2005 Act on the prison system and the legal position of detained persons should in principle be well-reasoned.[87]

The execution of the prison sentence should also aim at repairing the harm done to the victims of the offence, but also at rehabilitating the convict and preparing his/her to re-integration in society.[88]

In particular, detainees now have the following rights:

  • The right to organize their prison cell according to their own arrangements;
  • The right to have a cell of a sufficient size, to have proper lighting, ventilation and sanitation;
  • The right to have sufficient and decent food;
  • The right to wear their own clothes;
  • The right to have the means to maintain a level of personal hygiene;
  • The right to buy personal goods in a prison shop;
  • The right to send and receive letters;
  • The right to receive visits;
  • The right to make phone calls;
  • The right to have confidential contact with their lawyer;
  • The right to experience their own religion and to benefit from religious assistance;
  • The right to benefit from a broad spectrum of educational activities, including also societal training, sportive activities, leisure or cultural activities;
  • The right to work in prison, whereby the labour conditions offered inside prison should correspond as much as possible to those of similar activities in the outside world;
  • The right to medical care, including mental health care.

Physical force or coercion against detained persons can only be used in the event of necessity.

Nevertheless, many of the above rights still do not correspond to actual life in prison, as most Belgian prisons are very old and still overcrowded.

Immigrant detention

There is no distinction between the rights in prison of an immigrant and that of a Belgian citizen.

The 2005 Act on the prison system and the legal position of detained persons also explicitly provides that people of different nationality may enter into contact with the consular and diplomatic public officials of their country.[89] As it is the case for correspondence to lawyers, correspondence to these public officials cannot be made subject to review by the prison board.

Others

The aforementioned rights are not always absolute (e.g. restriction as to duration and number of visits); the requirements of order and safety may also impose restrictions (e.g. review of letters, frisks). In the same manner, rights can to some extent be restricted by means of disciplinary action.

Convicted persons do not have the right to have cash in prison; they will however be assigned a personal account.

Women's rights in prison

Men and women are placed in separate divisions of a prison or in different prisons. Women who are pregnant or have given birth receive special medical care and adjusted prison cells. A pregnant prisoner will be brought to hospital for childbirth (or for abortion should they wish to make this decision under the applicable legal conditions). When the child is born, it can remain with its mother (or father) in prison during the first three years in an adjusted cell.

Pregnant women or parents whose child remains with either one of them in prison cannot be placed in solitary confinement.

Court Procedures

Pre-Trial

During the pre-trial stage, formal suspects (and interested parties, such as the civil party or formal victim) are entitled to request:

  • the public prosecutor or the investigating judge to inspect the file and to obtain a copy of it;[90]
  • the public prosecutor or the investigating judge that the seizure of certain goods is brought to an end;[91]
  • that the investigating judge would proceed to additional investigative measures.[92]

Of course, these requests (or pre-trial motions) may be rejected for certain reasons. In case of a judicial inquiry (i.e. the inquiry led by the investigating judge, supra), the suspect can appeal against the rejection before the Chambre des mises en accusation.

With the exception of the request to put an end to the seizure of certain goods,[93] there are strict time-limits for new and/or subsequent requests. There limitations are based on the secrecy and non-contradictory nature of the pre-trial stage.

Discovery

There is no general obligation to produce relevant documents or objects during the pre-trial stage. However, there are some specific provisions which do provide for such an obligation. For instance, in case the suspect is kept in pre-trial detention s/he will get full access to the file before every periodic hearing of the Chambre du conseil or Chambre des mises en accusation.[94] At the end of the judicial inquiry, all interested parties will be granted automatic access to the case file before the hearing of the Chambre du conseil or Chambre des mises en accusation.[95]

Trial

Nature of the Trial

As has been mentioned before, the trial can be said to be accusatorial, but is still managed by the criminal judge. S/he is in charge of the process, not the parties. For instance, there is no cross-examination as in common law systems, witnesses are always questioned by the judge.

Defendant

It should be noted that both individuals and legal persons can be prosecuted before Belgian criminal courts.

Lawyers

See above.

Expert Witnesses

The standards of impartiality and independence do not apply to expert witnesses. During the trial stage, it is the judge who in principle decides to appoint an expert. The defence has a right to provide its remarks to the expert and to request that further research is undertaken. These rights are based on the right to a fair and adversarial trial (Article 6 ECHR).

Judges

See above: judges are in principle professional judges, with life tenure. They must be independent and impartial. Judges are actively in charge of the trial.

Victims

See above: victims can become a formal party to the criminal proceedings.

Sentencing

In accordance with the legality principle, courts can only impose penalties which are provided for by law, under the conditions laid down in that law, and within the statutory minima and maxima. In case of aggravating circumstances or repeat-offending, courts can increase the penalty; in other cases they may be allowed to mitigate the penalty (e.g. by accepting mitigating circumstances). They also have the possibility to suspend the conviction or the sentence, in combination or not with probation conditions.[96]

As noted before, the death penalty has been abolished. Moreover, Article 17 of the Constitution prohibits the general confiscation of goods. A person cannot be deprived of its full estate; confiscation measures need to target specific goods.

Appeals

Right to Counsel

See above: the same rights apply as in the earlier phases of the trial stage.

Ineffective Assistance of Counsel

There are no specific rules concerning ineffective assistance of counsel. Should the defendant’s lawyer have made mistakes in the preceding stages of the proceedings, the defendant can only start civil litigation against his/her lawyer.

Other Grounds for Appeal

A defendant can always appeal against a conviction, on both factual and legal grounds. What is more, the defendant can appeal against all aspects of the judgment of the court of first instance, or limit his/her appeal to certain (criminal or civil) aspects of that judgment. The public prosecutor can bring an appeal against any judgment, regardless of whether the defendant was acquitted or convicted. Again the grounds for appeal can be both factual and legal. Finally, the civil party can also lodge an appeal against an acquittal or a conviction, but only with respect to the civil aspects linked to that acquittal or conviction.

In principle, the court of appeal will deal with the entire case anew, thus applying a de novo standard of review. That being said, the court of appeal will of course only reconsider those aspects against which the parties have lodged an appeal.

Collateral Remedies

See above for the rules on damages and compensation for illegal and ineffective pre-trial detention.

References

  1. Art. 23, para. 3, 2° Constitution; Art. 6 (3) c) and e) ECHR; Art. 14 (3) d) and f) ICCPR.
  2. Art. 508/1, 1° Code of Civil Procedure.
  3. Art. 508/2 Code of Civil Procedure.
  4. In Brussels, there are two: a Dutch-speaking and French-speaking one.
  5. Art. 508/1, 2° Code of Civil Procedure.
  6. Art. 508/7 Code of Civil Procedure.
  7. Art. 14bis of the Constitution.
  8. The obligation of loyalty, which is laid down in Article 28bis, §3 CCP, implies that the public prosecutor conducts his/her criminal investigation both à charge and à décharge. Hence, the public prosecutor should not only search for incriminating evidence, but should also look for evidence that proves the innocence of the suspect (cf. infra, 2.1). Moreover, all the evidence collected by the prosecutor should be added to the file, even if the evidence is to the suspect’s advantage. The obligation of loyalty thus indicates that the prosecutor is not merely a prosecuting authority or an ordinary party to the criminal proceedings, but s/he is supposed to act in the public interest and to prepare the case for trial. See Court of Cassation 19 December 2012; Court of Cassation 27 April 2012.
  9. Art. 56, §1, para. 1 CCP.
  10. Art. 28bis, §3, para. 2 CCP.
  11. Art. 28septies CCP.
  12. Art. 41 CCP. See also Art. 46 CCP.
  13. Art. 216bis CCP.
  14. Art. 56, §1, para. 5 CCP.
  15. Art. 28bis, § 3 CCP.
  16. Art. 35bis CCP.
  17. Art. 28sexies and 61quater CCP.
  18. Art. 28 of the 1992 Police Act.
  19. Art. 28, §2, para. 2 of the 1990 Police Act.
  20. Art. 90bis CCP.
  21. Art. 5 ECHR.
  22. Art. 12 of the Constitution.
  23. Art. 1 and 2 of the 1990 Act on Pre-trial Detention.
  24. Art. 15bis of the 1990 Act on Pre-trial Detention.
  25. Art. 16, §1, para. 2 of the 1990 Act on Pre-trial Detention.
  26. Art. 16, §1, para. 1 of the 1990 Act on Pre-trial Detention
  27. Art. 28 of the 1990 Act on Pre-trial Detention.
  28. Art. 136ter CCP.
  29. Art. 5 (5) ECHR.
  30. Art. 15 and 22 of the Constitution; Art. 8 ECHR.
  31. Art. 1 of the 1969 Act on the timeframe for searches of private premises.
  32. Art. 12, para. 2 of the Constitution.
  33. Art. 30 Preliminary Title of the CCP.
  34. Court of Cassation 14 October 2003.
  35. Court of Cassation 26 January 2011; Court of Cassation 24 April 2013.
  36. Art. 47bis § 1 CCP.
  37. Those rules are laid down in Art. 71-86quinquies and 510-517 CCP.
  38. Art. 75 CCP.
  39. Art. 80 CCP.
  40. Art. 47bis § 5 CCP.
  41. For instance, Art. 91-92 CCP.
  42. Art. 102-111 CCP.
  43. ECtHR (Grand Chamber), Al-Khawaja and Tahery v. United Kingdom, 11 December 2011.
  44. Art. 47 bis § 2 CCP.
  45. Art. 2bis and 16 of the 1990 Act on Pre-trial Detention.
  46. ECtHR (Grand Chamber), Salduz v. Turkey, 27 November 2008.
  47. For instance, ECtHR, Panovits v. Cyprus 11 December 2008 and Dayanan v. Turkey, 13 October 2009.
  48. Art. 47bis, §2 CCP.
  49. Art. 47bis, §2, para. 4 CCP and Art. 16, §2, para. 2 of the 1990 Act on Pre-trial Detention.
  50. Art. 2bis, §2, para. 3 of the 1990 Act on Pre-trial Detention.
  51. Art. 47bis, §6 CCP.
  52. Art. 2bis, §5 of the 1990 Act on Pre-trial Detention.
  53. Art. 4 of the 7th Protocol to the ECHR; Art. 50 EU Charter.
  54. ECtHR 10 February 2009, Sergey Zolotukhin v. Russia; ECtHR 16 June 2009, Ruotsalainen v. Finland; EU Court of Justice, Case C617/10, Åklagaren v. Åkerberg Fransson, 26 February 2013.
  55. Art. 12 and 14 of the Constitution.
  56. Art. 7 ECHR.
  57. Art. 7 (1) ECHR and Art. 49 (1) EU Charter.
  58. Art. 15 (1) ICCPR; EU Court of Justice, Case C-387/02, Berlusconi and others, 3 May 2005.
  59. See also Art. 10, §1 of the 2005 Act on the prison system and the legal position of detained persons.
  60. Art. 14bis of the Constitution.
  61. Art. 6 ECHR.
  62. Art. 6 (1) ECHR.
  63. Art. 6 (3) ECHR.
  64. Art. 6 (3) a) ECHR.
  65. Art. 61bis CCP.
  66. Art. 21bis and Art. 61ter CCP.
  67. ECtHR, Saunders v. United Kingdom, 17 December 1996.
  68. Art. 3 ECHR.
  69. Art. 6 (1) ECHR.
  70. See e.g. ECtHR, Eckle v. Germany, 15 June 1982.
  71. Art. 21ter of the Preliminary Title of the CCP
  72. For instance, Court of Cassation 8 April 2008.
  73. Art. 150 of the Constitution.
  74. Art. 6 (1) ECHR.
  75. Art. 151 of the Constitution.
  76. Art. 13 of the Constitution.
  77. Art. 2 of the 7th Protocol to the ECHR; Art. 14 (5) ICCPR.
  78. Art. 148 and 149 of the Constitution.
  79. Art. 63 CCP.
  80. Art. 70 CCP.
  81. Art. 67 CCP.
  82. These courts were established by another law of the same date: the 2006 Act on the creation of the post-conviction courts.
  83. Art. 5 of the 2005 Act on the prison system and the legal position of detained persons.
  84. Art. 6, §1 of the 2005 Act on the prison system and the legal position of detained persons.
  85. Art. 6, §2 of the 2005 Act on the prison system and the legal position of detained persons.
  86. Art. 7 of the 2005 Act on the prison system and the legal position of detained persons.
  87. Art. 8 of the 2005 Act on the prison system and the legal position of detained persons.
  88. Art. 9, §2 of the 2005 Act on the prison system and the legal position of detained persons.
  89. Art. 69 of the 2005 Act on the prison system and the legal position of detained persons.
  90. Art. 21bis and Art. 61ter CCP.
  91. Art. 28sexies and Art. 61quater CCP.
  92. Art. 61quinquies CCP.
  93. Art. 28sexies CCP.
  94. For instance, Art. 21, §3 and Art. 22, para. 4 of the 1990 Act on pre-trial detention.
  95. Art. 127 §2 CCP.
  96. Art. 3 and Art. 8 of the 1964 Probation Act.



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