Unknown user: /* Right to non self-incrimination */

2022-08-16T08:23:17Z

Right to non self-incrimination

← Older revision		Revision as of 10:23, 16 August 2022
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	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.<ref> Art. 21bis and Art. 61ter CCP. </ref>		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.<ref> Art. 21bis and Art. 61ter CCP. </ref>

	===Right to non self-incrimination===		==== 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.		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.

Unknown user: /* = Right to non self-incrimination */

2022-08-16T08:22:48Z

= Right to non self-incrimination

← Older revision		Revision as of 10:22, 16 August 2022
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	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.<ref> Art. 21bis and Art. 61ter CCP. </ref>		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.<ref> Art. 21bis and Art. 61ter CCP. </ref>

	==== Right to non self-incrimination ===		===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.		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.

IBJadmin at 16:14, 18 December 2014

2014-12-18T16:14:39Z

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IBJadmin at 15:00, 18 December 2014

2014-12-18T15:00:19Z

← Older revision		Revision as of 17:00, 18 December 2014
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	=== Pre-trial detention ===		=== Pre-trial detention ===
	==== Start and conditions for pre-~~trail~~ 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.<ref> Art. 16, §1, para. 2 of the 1990 Act on Pre-trial Detention. </ref> As noted above, pre-trial detention formally starts with an arrest warrant from an investigating judge.		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.<ref> Art. 16, §1, para. 2 of the 1990 Act on Pre-trial Detention. </ref> 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:		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;		(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.<ref> Art. 16, §1, para. 1 of the 1990 Act on Pre-trial Detention</ref> 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:		(b) an arrest warrant is only possible in case of absolute necessity for public safety.<ref> Art. 16, §1, para. 1 of the 1990 Act on Pre-trial Detention</ref> 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.
	:: (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;		(c) The procedural requirements for an arrest warrant are as follows:
	:: (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.
			: (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.<ref> Art. 28 of the 1990 Act on Pre-trial Detention. </ref>		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.<ref> Art. 28 of the 1990 Act on Pre-trial Detention. </ref>
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	'''Witnesses and Suspects'''		'''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,<ref> Those rules are laid down in Art. 71-86quinquies and 510-517 CCP. </ref> in principle has to take an oath.<ref> Art. 75 CCP. </ref> 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).<ref> Art. 80 CCP. </ref> 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 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,<ref> Those rules are laid down in Art. 71-86quinquies and 510-517 CCP. </ref> in principle has to take an oath.<ref> Art. 75 CCP. </ref> 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).<ref> Art. 80 CCP. </ref> 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.

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	=== Criminal Law System ===		=== Criminal Law System ===
	==== Double jeopardy ====		==== 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.<ref> Art. 4 of the 7th Protocol to the ECHR; Art. 50 EU Charter.</ref> ''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.<ref> 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.</ref> ''Ne bis in idem'' does not exclude parallel disciplinary, administrative and criminal action, as long as there is no final decision.		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.<ref> Art. 4 of the 7th Protocol to the ECHR; Art. 50 EU Charter.</ref> ''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.<ref> 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.</ref> ''Ne bis in idem'' does not exclude parallel disciplinary, administrative and criminal action, as long as there is no final decision.

	==== Legality principle ====		==== Legality principle ====
	: Besides being a general principle of law, the legality principle is laid down in the Constitution<ref> Art. 12 and 14 of the Constitution. </ref> and the ECHR.<ref> Art. 7 ECHR. </ref> 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.		Besides being a general principle of law, the legality principle is laid down in the Constitution<ref> Art. 12 and 14 of the Constitution. </ref> and the ECHR.<ref> Art. 7 ECHR. </ref> 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<ref> Art. 7 (1) ECHR and Art. 49 (1) EU Charter. </ref> and (ii) the retroactive application of milder or more lenient criminal law.<ref> Art. 15 (1) ICCPR; EU Court of Justice, Case C-387/02, Berlusconi and others, 3 May 2005.</ref> 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.		The legality principle also includes two related principles: (i) the prohibition against retroactive criminal law<ref> Art. 7 (1) ECHR and Art. 49 (1) EU Charter. </ref> and (ii) the retroactive application of milder or more lenient criminal law.<ref> Art. 15 (1) ICCPR; EU Court of Justice, Case C-387/02, Berlusconi and others, 3 May 2005.</ref> 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.

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Unknown user: /* Right to non self-incrimination */

Unknown user: /* = Right to non self-incrimination */

IBJadmin at 16:14, 18 December 2014

IBJadmin at 15:00, 18 December 2014

IBJadmin: Created page with " == Introduction== === Quick summary of the context (including the country's recent history) === Belgium is a federal state with a constitutional parliamentary monarchy, chara..."