Proposition 50K0651

Projet de loi modifiant le Code d'instruction criminelle en ce qui concerne le défaut et abrogeant l'article 421 du même code.

General information ¶

Authors

N-VA Geert Bourgeois, Karel Van Hoorebeke
Vooruit Fred Erdman

Submission date

May 15, 2000

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

criminal procedure

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld N-VA MR FN VB

Contact form ¶

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Discussion ¶

Nov. 14, 2002 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, as you said, two bills and one bill had the same purpose, namely to bring Belgian legislation into line with the case-law of the European Court of Human Rights and, what is essential, to allow any accused to be effectively defended.

We agreed to work on the law proposal of MM. Bourgeois, Erdman and Van Hoorebeke. I am pleased to inform you that the bill, amended by the government, was voted unanimously.

The President: I think Mr. Bourgeois would like to intervene in the framework of this bill.

Sometimes I feel like you are even more impatient than I am.

Mr. Bourgeois, I am the most impatient man in the Chamber who takes his time.

Sometimes you feel impatient, I suppose. Mr. Speaker, I would like to thank Mrs. Herzet, the rapporteur, for her brief but accurate report.

Mr. Speaker, Mr. Minister, colleagues, with the approval of the bill, we ⁇ two things. First, we put an end to an existing state of legal uncertainty regarding whether a defendant appearing before a police court or correctional court has or does not have the right to be represented. Until now, there was much uncertainty about this. The number of cases in which the accused was convicted by default is legio. Our country has already been condemned three times by the European Court of Human Rights in Strasbourg, because Belgium does not allow a lawyer who is present at the hearing in order to defend the defendant to perform the defence outside the presence of that defendant. We are condemned in the case-Van Geyseghem, the case-Stroek and the case-Goedhart. The proposal ends this legal uncertainty. We also put an end to additional processes, a cascade of processes up to Strasbourg. We also end the compensation for damages to which the Belgian State is repeatedly condemned by Strasbourg, because people feel injured and ultimately get equal in Strasbourg.

More modest in nature and something that will affect the large mass less is that we take a step forward in the further refinement of human rights, guaranteed, among other things, by the European Convention on Human Rights, assuming that the right to a defence by a lawyer belongs to the fundamental right to a fair trial. I think that this principle was unanimously shared in the Committee on Justice and very ⁇ by its chairman of whom I always say — and that without negative connotation — that he is a lawyer pur sang. People should pay attention to this problem.

In my proposal, I would have wanted to take a step further with regard to the assessment of the right to loss. In my bill, I have given, by means of a note from Mr. Vandeplas, an overview of the yet remarkable evolution of the right to waste, or the figure of waste, in the course of the times from the pre-revolutionary law to the revolutionary right to the present. At first, it was regarded as an insult to the court. Those who did not appear had already been thrown a presumption of guilt upon themselves, and in the case of acquittal in case of defect one could be condemned precisely because one let defect go and did not show respect by appearing before the court. That was the very extreme position at first. We have experienced an evolution to this day, which has not been cast into legislative texts — the existing article 185 of the Code of Criminal Procedure says it does not — in which it is judged that failure belongs to the right of defence, even to the extent that one — there are very notorious cases — can attend the introductory session and other sessions but at a certain moment keeps it for consideration, follows the process from the sideline, can let go of failure and then can note resistance.

I wanted to put an end to this with my bill, a little like an extension of the right that we introduce to be represented by a lawyer, even if one is not personally present. I also wanted to restrict the right of absence from a certain process-economic evolution and from the point of view of the protection of the public interest and depending on the course of the process, to the cases of force majeure. The truth commands me to say that Commission President Erdman, who has shown me the honour to sign the proposal and to support it, has said from the beginning: “This goes too far for me. I do not support that.” The result of this can of course be guessed: that part of the bill has been removed from exactly the argumentation of the lawyer pur sang. Again, Mr. Erdman, I hope that you will not be wronged with this. Maybe you belong to a race that is disappearing. Nevertheless, I find that these two Poles are present. You have defended it from that point of view.

The Minister also did not accept my proposal, somewhat from a different perspective. He has said: "I limit myself to the necessary transposition in our law of the consequences of the judgments-Van Geyseghem, -Stroek and -Goedhart. I want to strictly limit myself to that.”

Okay, so be it, I can live with it. I thank the Minister, who is not present here, as well as colleague Erdman and colleagues for amending, signing, supporting and approving the bill.

Ladies and gentlemen, I would like to point out a few important things. The right of representation applies to the police court and the correctional court, but does not apply to the Court of Assisi. This was expressly expressed during the parliamentary discussion, precisely because of the peculiarity of the assistance process, which is a verbal process, where the hearing and seeing of the accused is of the utmost importance and where, in addition — which we must not exclude — it nevertheless played the consideration that it becomes ⁇ delicate — it may already be delicate in other cases — for an attorney to represent the accused without the person concerned being present there.

The right to representation also does not apply to acceptance of conditions at the time of the suspension. This is also clearly shown in the discussion. I myself then overlooked — I had hoped that the minister would be here, for I would have introduced it for a while — that the right to representation for the work penalty was explicitly introduced. I looked at it again. It was introduced following an amendment in the Senate, which was unmotivated. With us, the draft had gone differently to the Senate. I lived in the belief that before accepting the work penalty one must also be personally present. Personally, I think now, when looking closely, that there may be some form of contradiction in it. Per ⁇ this needs to be clarified. I think it is still a bit of a similar order: accepting conditions in suspension and accepting a work penalty. Well, in the law on the work penalty it is explicitly stated that one must either be present in person or represented by a lawyer. This was out of my perspective during the discussion in the committee.

As a corrective, the judge can, of course, still order the personal appearance, including the right of participation of the defendant, if he considers it absolutely necessary. I hope that this will not be abused. I hope that the law will be applied in the spirit of the legislator, starting from the right to representation. I hope that the judiciary will also apply the law in this sense and that it will also motivate in a special way when it considers that the accused must appear in person.

Mr. Speaker, I end by once again expressing my thanks to those who have made the adoption of the bill possible, in the first place colleague Erdman, who signed it and co-supported it, the minister, who was so kind to put his bill in second order and amend my bill, and also all colleagues in the Committee on Justice.

That is very friendly. I would like to point out that the Minister of Justice in the Senate is responding. He apologized, but he told me.

You also touched me when you talked about pur-sang. As Mr. Erdman, I am very sensitive about this. There are three types of horses: the jumps, the stallons and the hongers. The translation will give you the meaning.

It is a ruin. A ruin has the advantage of retaining masculinity, but not for all of its features.