Proposition 50K1625

Projet de loi modifiant diverses dispositions en vue notamment d'allonger les délais de prescription pour les crimes non correctionnalisables.

General information ¶

Authors

CD&V Tony Van Parys, Jo Vandeurzen, Servais Verherstraeten

Submission date

Feb. 5, 2002

Official page

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Status

Adopted

Requirement

Simple

Subjects

criminal procedure

Voting ¶

Voted to adopt

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

Party dissidents ¶

• Geert Bourgeois (N-VA) abstained from voting.
• Pieter De Crem (CD&V) abstained from voting.
• Vincent Decroly (Ecolo) abstained from voting.

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Discussion ¶

June 20, 2002 | Plenary session (Chamber of representatives)

Full source

The bill submitted by colleague Tony Van Parys was discussed at the meetings of 21 and 28 May and 4 and 11 June. The applicant described the proposal in broad lines.

The proposal consists in the fact that where the limitation periods in Belgian criminal law have been increased in the past, this measure appears to be insufficient to avoid the limitation of a number of very important cases. Thus, at this moment, the facts attributed to the so-called Bende van Nijvel are thus on the brink of ageing.

Collega Van Parys believes that the limitation periods as we know them so far are ⁇ short and that they are also "suspicious-friendly", in particular because of the way they are calculated. In order to prevent serious criminals from considering Belgium a safe home haven, he proposes to introduce for the most serious crimes, crimes that cannot be corrected, a doubling of the limitation period, in particular from 10 years to 20 years.

During the discussion, the Minister of Justice stated that the approach to the problem of the ageing is, in his opinion, rather of a general nature, without focusing on a specific case, in this case the Bende van Nijvel. He also argues that the government can support the bill, but it proposes a term of 15 years instead of 20 years.

Mr. Giet understands the motives of the applicants but believes that this is the second time that there is a revision of the limitation period and that in the future it would be better to think of holding a global debate on the substance of this issue.

Mrs Herzet joined and also called for a debate on the problem of the limitation and the mitigating circumstances which, of course, have a ⁇ important influence on the limitation of a crime.

Mr Erdman, the chairman of the committee, joined that, apart from the limitation periods, there has been a very recent legislative initiative concerning the procedure for exceeding the reasonable period and that this exceeding is not necessarily linked to the inadmissibility of the public claim. That means the whole problem of the reasonable period in which a conviction may also be made, all this on the basis of the European Convention.

I have joined the request for a thorough debate. There are systems in which the limitation does not exist. This depends on the view that one has of criminal law and the usefulness of coming to a punishment or not. One can adhere to the deadline — even if it is discretionary — that the government has set in advance.

Collega Van Parys stated that he is aware that the problem needs to be looked at closely in the future, but he notes that now it is necessary to work with a particular dossier. He points out that it is not necessary to be too scrupulous in determining the limitation period for certain serious crimes. Fundamental rights are not infringed.

A number of amendments have been submitted, both by the government and by the CD&V group. Some of them have been adopted. I have already talked about the term — 15 or 20 years — in which the government’s proposal to fix the term on 15 years has been adopted. This means that one can reach with shooting up to a maximum of 30 years.

The Government has used this proposal to adjust the procedure provided for in Article 24 of the previous title of the Code of Criminal Procedure. With this, the government wants to change the current regulation, which was quite heavily contested in the legal doctrine. This amendment was unanimously accepted. This means that the system of suspension of the limitation of the criminal action is now addressed in a more coherent way. I refer to the purely technical text of the amendment for further elaboration.

An amendment has also been submitted to Article 9 of the Criminal Procedure Code. In fact, this amendment has little to do with the problem of the limitation periods. It is a technical amendment that actually corrects a forgetfulness in the context of police reform. I speak of the problems that have arisen because the horizontal integration of the labor audits and the parquets has not taken place. This amendment was adopted with 9 votes for and 2 abstentions. The last amendment of the Government regulates the entry into force of the bill. This makes a distinction between, on the one hand, the new rule on the extension of the limitation period, which will enter into force immediately after its publication in the Belgian Staatsblad, and, on the other hand, the new suspension scheme, which relates to the method of calculation of that limitation period. You can also find this in the articles, which, among other things, deal with whether the suspension is caused by the defendant or by other elements. That arrangement shall enter into force on the first day of the twelfth month following its publication in the Belgian Official Journal in order not to cause additional difficulties in the ongoing procedure. The amendment on police reform and labor audits comes into force on 21 May 2002. This amendment was unanimously accepted.

We have accepted the legal service’s proposal to change the title of the proposal because a number of elements have given a broader content to this proposal.

Mr. Speaker, the Justice Committee unanimously accepted this proposal, submitted by colleague Van Parys.

Mr. Speaker, Mr. Minister, colleagues, I thank Mr. Coveliers for his excellent and clear report, which allows me to be ⁇ concise.

I would like to remind you that the CD&V group has submitted this bill with the intention of extending the limitation periods for non-correctionalizable crimes. There was a cause and a cause.

The cause is the threatening obsolescence of the first serious fact attributed to the so-called gang of Nijvel. After all, it is true that the robbery on the arms trade De Keyse, attributed to the gang of Nijvel, took place on 29 September 1982. At the same time, the attacker and a customer were seriously injured and a police officer was killed.

In the current legislation, the limitation of these facts takes place after 20 years. Ten years plus 10 years as a result of shooting by acts of investigation or prosecution, especially on 29 September 2002 and you understand that this date is very close.

Through the theory of the unity of intent one could ⁇ make an association with the last facts attributed to the gang of Nijvel, in particular the robbery in Aalst on 9 November 1985, so that one eventually reaches a limitation date on 9 November 2005, but that unity of intent would then still have to be proved.

With respect to the victims and to the public opinion, we cannot afford to let these facts age. Furthermore, the Minister of Justice himself, following a meeting with the victims, had committed to take an initiative towards extending the limitation period.

In general, it is, by the way, so, and that is, by the way, the reason for the initiative of the CD&V group, that today’s limitations for serious crimes are actually suspects-friendly. I give three elements.

First, the files are becoming more and more complex. I think of criminal organizations that are very difficult to expose in their structure.

Second, there are all kinds of delaying mechanisms — and we know that — which should not be rewarding. Their

Third, there is the regulation in the surrounding countries. I would point out that, for example, in Germany the limitation period is thirty years for crimes punishable by life imprisonment and that in the Netherlands a draft circulates which would increase the limitation period from 18 to 30 years.

By amendment, we have aligned ourselves with these deadlines by making the limitation period for these crimes 15 years which can be 30 years in case of timely shooting by acts of investigation and prosecution.

It is very clear that this is only for the most serious crimes, for crimes that are not correctional. This will be the case, for example, for murder or murder. This is an important element in the assessment. Specifically, this would mean, for example, that when this bill becomes law, the first important fact attributed to the gang of Nijvel would date 29 September 2012 so that the investigators would have another ten years to continue the investigation.

I invite you to approve this bill with the same unanimity as this happened in the committee. I would like to thank the President of the Commission in particular for his constructive cooperation. I say the same before my colleagues in the Committee on Justice and the Minister of Justice.

Mr. Speaker, Mr. Minister, colleagues, I agree with the words of thanks addressed by the rapporteur. I also congratulate colleague Van Parys on this initiative that is indeed very useful in the light of the threatening obsolescence in a very important matter. The Van Parys proposal was indeed weakened, but in my opinion still to a reasonable extent. I hope that there will be no other negative effects associated with which we have no sight yet. I have not been able to actively participate in the discussion of the proposal in the committee and there are still some points that call for reservations.

First, there is the definition of Article 2. Article 21 stipulates that the period of 15 years shall be "in the event that the crime is a crime which cannot be converted into a misconduct pursuant to Article 2 of the Law of 4 October 1867". I do not have the code with me, but if I am correct, according to Article 80 of the Criminal Code, every crime can be converted into a correctional punishment. However, the decision on this matter falls on the Council Chamber. Per ⁇ it would have been better to formulate the text differently: "in the event that the crime is a crime that was not referred by the council chamber to the correctional court"? Now there is: "...which cannot be converted" I think this is an insufficiently precise formulation and that there will be discussion about it. I bring that point. I couldn’t really look at it thoroughly. This may have happened in the committee. In any case, it is not unimportant that there is an answer to this question.

Secondly, Article 24 as it looks since the amendment of the law of 1998, is still largely exhausted? I know that it wasn’t an easy article — that was apparently the ratio legis for the government’s amendment — but that article 24 still made it much less easy for a number of wrongdoings that are correctionally punished to age. The new Article 24 reduces that, however, to “a suspension during the treatment of the exception of incompetence, inadmissibility or nullity of the criminal action brought up by the defendant, the civil party or the civil liable party”. I have some reservations about this reduction. I know that Article 24 was not until now an example of easy and transparent legislative work, but now, in my opinion, it still gives a opposite signal. The Van Parys proposal rightly states that for serious crimes the limitation period should be extended. However, for matters before the correctional court, i.e. for the disadvantaged companies, the proposal brings with it a relief, which I fear goes against the tendency requested and supported by the public opinion.

Colleagues, I remind you that when the law of 1998 was examined, quite a few votes rose in order not to make the sentence but the penalty prescribed by law determining the limitation period. Among other things, the current Minister of Justice said in his speech in the Justice Committee that this was a possible solution that deserved further investigation and possible attention.

In short, unless the next speaker can still convince me, I have a reservation against those two points, but I repeat that the basic initiative of colleague Van Parys takes away our full support.

First, I would like to thank colleague Coveliers for his report and colleague Van Parys for his initiative. I know, however, that we could argue for a very long time whether the specific crime to which he referred and which gave rise to his proposal contained or did not contain a risk of obsolescence, at least when one assumes that one gang committed crimes which would then qualify for obsolescence the last fact committed. I have already said during the consideration that we should not be caught by this and that we should conduct the debate.

Second, I think this is still an interim debate. Rightly, prominent lawyers have accused us last week in one of the daily newspapers that we want to climb the obsolescence once again without touching the essence of it.

Should effective limitation over time be interpreted in such a way that prosecution can no longer be instituted, or should one, as we have recorded in Article 21ter for the non-examination of matters within a reasonable time, limit itself to a declaration of guilt in which at least the civil rights are fully protected? This is a fundamental debate from which, in my opinion, we cannot escape. In the past, the Security Act was drafted. At the moment — with all respect for your initiative, Mr. Van Parys — the Bende van Nijvel law is in place. We can, of course, take corrective action again and again for each new situation. However, I believe that the debate will need to be conducted on the ground, whatever the outcome.

Mr. Bourgeois has alluded to the famous Chinese calculation of limitations that is currently valid. In the committee, I asked the minister to give instructions that the parquet should add a note of calculation to each file. No one knows when a case will be celebrated. No one can determine with certainty when a case ages. It can also be stated that a case never ages and that the opposite must be proven.

The situation of the Securitas Act was no longer feasible. The Minister proposes a simpler formula that is limited only to a particular situation. In other cases, the limitation periods are extended. After consultation with the Prosecutor General, the Minister finally agreed to maintain the buffer zone. I still have my doubts about whether this is the right method for procedural rules. It is stated that there are several dossiers with calculation method A of limitation. If in the future calculation method B is to be applied, some say the files cannot be handled. Their

Mr. Minister, those who have advised you on this subject have also given you the guarantee that the files they mean will be effectively handled when the new situation comes into effect. If that is the case, we may have taken a step towards absorbing the judicial downturn.

Mr. Speaker, very quickly, to register in the course of what the Chairman of the Justice Committee has just said. I think it’s been two legislatures that I’m here. It’s been twice that we’ve changed the prescription rules, to say things clearly, about a particular case. And every time, excellent reasons lead us to change this legislation. At the same time, it is clear that legislative technique cannot be pursued in this way. Therefore, it is clear that everyone calls for a substantial debate on the problem of rules and limitations, but also on prescription itself. It must be possible to clearly ask whether a prescription as such in criminal matters still needs to exist. The question is asked. If so, I think it would probably be necessary to make sure to find solutions that can remain applicable for a while, so as not to have to change them suddenly. If not — and one can think about the possible abolition of the rules of prescription — then we find ourselves with the problem of reasonable time as the only limit. by Mr. Bourgeois knows that we have decided here that the sanction for exceeding the reasonable deadline is a declaration of guilt. But if one day we should abandon the prescription as such, then we might have to think about changing the sanction for exceeding the reasonable deadline into the inadmissibility of the sanctions.

If we abandon the prescription rule as we know it today, we must know that we leave a regime consisting of clear, precise and known rules for a regime where, ultimately, nothing is clear a priori and everything is decided a posteriori, since it will be appropriate for the court to assess whether or not, in case-by-case, the reasonable timeframe is exceeded.

This is where the debate takes place. However, there is also fundamentally the question of legal certainty and the readability of the rules for the citizen. This is the debate that is inevitably ahead of us. It may be too late to address this issue in this legislature. Those who find themselves here after the next election will probably be able to discuss it usefully and intelligently.

Mr. Speaker, I will be brief and will also speak on my bank. I will not talk about the paternity to be attached to this bill, for the simple reason that, in addition to the initiative taken in the proposal, the government had also taken an initiative during the month of March. This initiative was, by the way, subject to the opinion of the State Council. I will therefore refer to that opinion of the State Council, because it largely responds to the various statements we have heard today.

First, and which is exceptional in these circumstances, the State Council welcomes the fact that the draft provides clarity on Article 24 regarding the suspension, the so-called Securitas Act and the Securitas Article. The limitation period was calculated in a very complicated manner; from which one will be definitively freed in the future, after the buffer period. Second constatation: the Conseil d’Etat has stated that the prolongation of the prescription period was all to the fact in the logic of what had already been decided earlier, and more ⁇ on the occasion of the vote of the law of 1993 increasing the time of prescription for certain infractions. The State Council has set out two other important criteria for the limitation: the cessation of prosecution after a certain period of time in the interest of what is called social tranquility and peace, and the circumstance that the passage of time increasingly complicates the proofing.

Finally, Mr. Speaker, the State Council has also linked the reasonable deadline referred to by Mr. Giet, with a statement which, in my opinion, is highly judgable and which I also support: the extension must not result in any negligence in the prosecution being justified by the competent authorities. That speaks for itself and I want to emphasize it here with so many words.

Mr. Speaker, the only thing that I think is important is that the limitation period should not be focused on a single file, but should be applied as a general rule, and that was also the intention of the government.