Proposition 51K1284

Projet de loi modifiant les articles 259bis, 314bis, 504quater, 550bis et 550ter du Code pénal.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

July 12, 2004

Official page

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Status

Adopted

Requirement

Simple

Subjects

copyright computer crime database computer systems racism criminal law telecommunications

Voting ¶

Voted to adopt

CD&V Vooruit Ecolo LE PS | SP Open Vld MR

Abstained from voting

FN VB

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Discussion ¶

April 21, 2005 | Plenary session (Chamber of representatives)

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Mr. Speaker, during his introductory presentation, the Minister informed that the draft was intended to bring Belgian law into conformity with the Convention of the Council of Europe on Cyber Crime and with the Additional Protocol to the Convention on Cyber Crime, drawn up in Strasbourg on 28 January 2003.

Belgian law is already largely consistent with the aforementioned provisions. However, a number of smaller legislative adjustments are necessary in order to comply with the international obligations set out in the agreement.

In the first place, as regards the infringement of the integrity of data and information systems, an adaptation of Article 550ter of the Criminal Code is necessary, as the article sets out a special scheme for both crimes, in particular the intent to harm.

Belgian law already includes the crime of misuse of instruments. However, there are no provisions in the Criminal Code concerning the misuse of instruments or information data that may be used for the illegal interception of communications or telecommunications.

With regard to computer fraud, Article 504quater of the Criminal Code is largely consistent with Article 8 of the Agreement. However, the article requires, in order for the crime of computer fraud to be committed, that the perpetrator acquires a fraudulent property advantage for himself or for another.

Article 10 of the Agreement on the Infringement of Intellectual Property also requires an adaptation of Belgian law. Articles 80 and following of the Act of 30 June 1994 on copyright and related rights punish counterfeiting criminally, but only provide for imprisonment in case of repetition.

Article 11 of the Convention requires States to criminalize citizenship and attempt to commit certain crimes.

Finally, as regards the denial, minimization, approval or justification of genocide or crimes against humanity, it should be noted that the law of 23 March 1995 punishing the denial, minimization, justification or approval of genocide committed during World War II by the German national-socialist regime has a more limited scope than that provided for by Article 6 of the Protocol. It is therefore necessary to adapt the Belgian legislation in this regard.

During the general discussion, Ms. Van der Auwera recalled that during the hearing the representatives of the Computer Crime Unit indicated that the vast majority of the negationist websites are placed online from abroad. She said the bill was a praiseworthy initiative, but she wondered if it would be a useful tool in the fight against those foreign sites.

The Minister replied that the government would observe the principle of territoriality in its action and that therefore it would be simply impossible to do anything against the creators of such sites. In the article-by-article discussion and voting, no comments on Article 1 are made. On Article 2, the Minister gave explanations, in which Mr Wathelet submitted an amendment aimed at replacing some words. These amendments were unanimously adopted. On Article 3, the Government submitted an amendment that was unanimously adopted. On Article 4, the Government also submitted an amendment, replacing the words "possible use" by the words "normal use". This wording was more closely aligned with the Council of Europe Agreement on Cybercrime. The amendments were unanimously adopted and the amended articles as well. The same applies to Article 5. On Article 6, Mr Wathelet submitted an amendment aiming to replace some words with verbal words. This was unanimously adopted, as was the amended article. With regard to Articles 7, 8 and 9, the Articles provided that the penalties provided for in the Act of 25 March 1995 would from now on also be applied to the denial of all genocides and crimes against humanity as defined in international law. The Minister submitted amendment 11 to change the title of the law in the sense that it would be replaced by "the law punishing the denial, minimization, justification or approval of genocide and crimes against humanity". Mrs Van der Auwera pointed out that, although both articles were truly responsible, they did not fall within the draft law under discussion and would rather be poured into a separate draft law. Mr Maingain submitted an amendment asking that these were facts which would attempt to justify or approve, as defined by international law et reconnus comme tels par tout tribunal international dont la juridiction a été reconnue par la Belgique, le Conseil de sécurité, l'Assemblée générale des Nations unies ou par une décision des juridictions belges ou d'un autre État membre de l'Union européenne.

Mr Borginon argued that this amendment would further extend the scope of the 1995 Act. It was about facts that could not even be recognized by international legal bodies and would still become criminal. Mr. Laeremans pointed out that the law provides for many excessively severe punishments, and if they were still preserved, they should be applied to all genocides. The speaker considered that the contradiction between Belgian and international law does not really raise problems and is even desirable when one wants to bring too long unknown facts to light. Their

He referred to the Armenian genocide, which has not been recognised by any international tribunal. Their

Ms. Déom pointed out that, like Mr. Maingain, she is concerned about the expansion of the concept of genocide. Their

Ze zei: "The possible problems of non-compliance with international law could be solved by adding, in the text of the amendment, the following: "...that genocides and crimes against humanity must have been recognized by a final and final decision of any international court whose jurisdiction has been recognized by Belgium, the Security Council or the General Assembly or by a final decision of a Belgian or another Member State of the European Union court."" De heer Borginon meende dat het vonnis van een Belgisch rechtscollege, dat has geoordeeld dat bepaalde facten constitutive elementen van een genocide zijn op grond betrokken het amendement, een al groot gewicht in schaal zou leggen.

Further discussion arose with the Minister’s statement referring to an obligation taken over from Article 6 of the Additional Protocol to the Council of Europe Agreement. The Minister pointed out that the draft law in question directly translated this obligation into Belgian law by extending the scope of the Act of 23 March 1995 to any genocide or crime against humanity as defined by international law and now recognizes a final decision of any international jurisdiction that is regularly established.

Mr Schoofs expressed concern that certain provisions could jeopardize public debate and university research. He pointed out that professors and researchers established in a country whose college of law has judged that a genocide has occurred would no longer be able to examine the legal nature of those facts and should therefore be able to travel abroad to carry out the investigation further. M is Maingain responds that it is not a matter of banalizing the crimes against humanity, and a fortiori the Shoah, but that none could at the same time ignore that other crimes against humanity and other genocides had been committed and recognized as such by national and international jurisdictions, in accordance with the definitions of different international acts. The discussion was continued with comments from President Borginon, who argued that the mutual recognition of judicial decisions taken in other Member States of the European Union had a limited scope if those decisions concerned only the parties to a dispute. The Minister further pointed out that Article 1, which is common to the four Geneva Conventions, provides that Member States undertake to comply with and enforce those Conventions and that all international courts interpret that provision as follows: where a State has convicted a person for one of the crimes covered by the Conventions, the other States shall make every effort to enforce that conviction.

Finally, the voting on the amendments was passed and the whole of the thus amended bill was adopted with 10 votes and 2 abstentions.

Until then, my report. I will explain the position of our party on this later.

Thank you for your report, Mr Marinower.

Mr Schoofs has registered for the general discussion. I hope you are not too long; I know your habits, Mr. Schoofs. You have the word.

I am only 1.67m, president.

I was not talking about your height, but about the length of your speech.

Mr. Speaker, colleagues, Mr. Minister — to replace the Minister of Justice, I suppose — in fact, I would have to hold two speeches in succession here, because the law contains two parts, originally even three. I explain myself more closely. The first part dealt with cybercrime, the second dealt with copyright and the third dealt with the law on negationism. Thus, in three sub-drafts, one wants to amend a number of existing laws, through a mixture of a draft.

As for the first part, the cybercrime, I think it would be a understatement to say that the law will follow the facts, even more than other laws. It is common among lawyers — and it is no shame to admit — that the law always follows the facts. When we speak of information systems such as the Internet — because the Internet is only one of the information systems, it covers a wider area — we know that it is one of the fastest, the most volatile, the most complicated, the fastest evolving and the least transparent media for communication and transmission of information.

In any case, it is thanks to the expertise of the FCCU, the Federal Computer Crime Unit, that we come here today with a valid and ⁇ even meritorious draft for that part to the plenary session. After all, I remember very well that if the FCCU had not demonstrated its expertise during the hearings and the design on that piece had not been changed, any keyboard or mouse click would have been punishable.

This was because the concept of unlawfulness, the reference to the concept of unlawfulness, was initially not included in the law as a criterion for investigating a criminal offence. So one turned on the computer, tapped on a key, and one was punishable, because any change in an information system or any exchange of information would in principle have led to punishment, which, of course, could not be the intent of the law. The spirit of the law could have corrected this. However, the letter of the law left enough doubts about this. Their

I have already said that the circumstances in this area may indeed have gone far enough and that a legislation has been created that must be able to curb crimes, at least here on Belgian territory. Let us not make illusions. The territoriality principle prevents a website with manifestly criminal content placed on a foreign server from being prosecuted. There is then no direct possibility of going over to persecution, let alone condemnation.

On the technical and legal part of computer crime, I can therefore be brief. We now indeed have a more comprehensive law, a law that goes even further than what was passed in the previous legislature. Their

I would like to use the second, though deleted loop, in order to be able to bring forward here on the speech-based criticism of the law. The second part was about copyright. There was an article 7 that has now been deleted. It could or should be concluded from Article 7 that its realization, the infringement of copyright, including through information systems, had already been accomplished through a modification of the Act of 30 June 1994 transposing a European directive. This was done here in the Chamber by means of the law of 3 March 2005. Directive 2001/29/EC was transposed into copyright law on March 3. Their

I refer to this second part because copyright has nothing to do with only computer crime, just like, I come to the third part, the negationism law itself has something to do with computer crime. It is about the Negationism Act or the law, which we want to amend, of 23 March 1995 to punish the denial, the minimalization, the justification or the approval of the genocide committed during World War II by the national-socialist regime. In terms of this legislation, the Minister has decided to merge them with the law on cybercrime. Their

I have also made the necessary criticism in this committee. I will also do this at the speaker’s desk. This criticism is first and foremost a formal criticism. I and the Flemish-Belang Group, on whose behalf I speak, did not find it a witness of elegance or of choice to link a technical-legal draft, which aims to curb cybercrime, to a law of a very different nature, of a very different nature.

It is a law which is primarily aimed at respect for humanity, the dignity of the human person and the punishment of crimes, of all kinds of atrocities. The aim is to add such a law, which seeks to foster such high moral standards, to a purely strict technical-legal bill. However, the Minister has decided in that sense. We are less happy with it, but sic transit gloria mundi. When one begins to put everything together in all sorts of bills, then one finally begins to question the quality of the legislative work.

In addition to the formal criticism that we have combined these two bills in a little charming way, there is, of course, also content criticism. First – and that is, in my opinion, the red thread throughout this whole design – there is the legal uncertainty that is being created. What is the purpose of this law, more specifically in the field? Any court located in one of the member states of Europe can qualify a number of facts as a genocide and also condemn them. This is not only a moral, but also a criminal conviction. From the moment when one of the thousands of judicial bodies in Europe makes such a judgment, the person who attacks such a judgment by disputing the facts commits a crime. He is actually committing a crime of negationism. Their

Are we really able to trace such judgments in a timely manner, and to put them before legal scholars, anthropologists and historians, to remind them that what they say is punishable because a particular court in a given country has ruled that those facts have been undeniably established as a genocide or a crime against humanity, which in fact goes even further and ⁇ even much more difficult to trace than a genocide in which the mass killings manifestly take place. That is a first point.

Secondly, conflicting judgments may arise. I referred in the committee to the Balkan countries that will join the EU and where, throughout history and even recent history, often numerous acts have been committed, numerous atrocities, of which we may not yet know the existence but which in any case have taken place, and which are qualified as genocide by a certain court in a particular place in a Balkan country that will join the Union or that may already have joined the Union. On the other hand, there may be judges in the same region who do not even want to qualify the same facts as a crime against humanity, let alone as a genocide, and who argue that what is happening there was an ordinary act of war, ⁇ in a dirty war, but nevertheless an ordinary act of war. There are conflicting judgments.

What will we do with this? I think this law will provide clarity. In Belgium, ⁇ with Ministers of Justice such as Ms. Onkelinx, who has already shown more than sufficient views on this subject, one will be prosecuted for this crime. Until then that clarity.

In any case, I also see the possibility for certain action groups to go shopping. Certain action groups — I am very familiar with the Balkan countries — are jumping out to qualify certain crimes as genocide not only in the Balkans but if it should be across Europe. If one man succeeds in this before one court, possibly confirmed by a court of appeal — even suppose that there is no appeal — then those judgments become sacred and then one sits with the crime of genocide which of course immediately gives rise to the crime of negationism. I think this is a little bit elegant dealing with things like genocide and crimes against humanity. I think they deserve better than what might happen.

It is indeed possible that one judge in one country decides that something is a genocide and one is for the trouble in that country. What will be the reaction? In those countries where such judgments will not be accepted or where they can be temporarily removed – Belgium is one of the first countries, if not the first country, to take this extensive measure – the opponents will be able to make a full vote and play a full card against the recognition of the genocide. They may be protected by certain states. I refer again to the Balkans. At that time there is an offer in the qualification of genocides. There will therefore be a bidding between the pro and opponents in different Member States.

I wonder if what is being voted for today is all so obvious and so favorable. There is not only the case of shopping but there is also the controversy that can arise. Thus one risks a counterproductive effect of the concept of genocide on the one hand and the law of negationism on the other. In my opinion, the concept of genocide can only lose its impact and that is the worst thing that can happen. This is the counterproductive effect on genocide and the Holocaust. Eventually, certain obscure action groups will seek to constitute their own Holocaust through one of the courts in one of the EU Member States.

In Belgium, this law will result — and I refer to the clarity about which I was speaking then — that there will be an exponential expansion of the opinion delict. In Belgium, we will have to say from now on that it is not only more related to the Holocaust, which as a symbol may lose its value. I dare not take the word banalization into my mouth. Historians, legal scholars, anthropologists and sociologists, pay attention to your words, pay attention to your counts.

Therefore, I suggest in this speaking group on behalf of my group that under these circumstances and with this terminology, we will not approve this law.

Mr. Speaker, I have listened attentively to Mr. Schoofs’ speech. I did that in the committee too.

Mr. Schoofs, I wonder if you do not feel uncomfortable when you stand on the floor and talk about respect for the Holocaust. This is a very specific fact constellation. You rightly say that we should not baggage this, we should dare to remind us of the value of those facts, and we should give them the necessary understanding and respect. At the same time, there are still a number of people in your own party today who have made statements about the system of eradication and have indeed questioned some facts. Indeed, for the outside world, they resigned from the position they held in the Senate, I think, but today they are still responsible for a section of your party. At the same time, some of your colleagues here in the House or in other parliaments, no longer than a few months ago, approximately simultaneously with the celebration of the liberation of this country, entered the IJzerwake and paid tribute to someone who, for example, wrote in 1942 that it became easier to breathe in Antwerp when the deportation of the Jews began.

Do you have no problem with this? Can you announce this at the same time? What do you say in your party channels about this? Some of your fellow colleagues in the Chamber have participated in the “education” of a number of people – they have trained them – so that they would well realize what the honoring of Staf de Clercq last year included. Do you have a problem when you say that?

Mr. Marinower, I was elected for a party that defends a particular program. What I say here in the speech table today also belongs to that program. I am committed to defending this program. If there were people within my party who ever said something different, you would have to address them directly.

As for your personal question to me, I can only tell you that I was born 22 years after World War II. I humbly bow my head for the suffering that so many people have suffered during that period. You can never accuse me of anything else.

When you, in your position as Blok-watcher, make certain statements to certain of my colleagues or former colleagues, you should try to hit them and bring them to order. Today, however, I stand here to try together with you to avoid such conditions ever happening again. If there are people you want to talk about, within my party or within another party, you just have to do it. That is why I am not standing here today on the floor. I am not the guardian of my brother. I do not have to defend anyone here. I am here today only defending the views of my party. You can safely attack me on my personal opinion, but I stand here today in honour and conscience and I defend it in honour and conscience.

Mr Marinower, you subsequently asked for the word in the general discussion. Mr Schoofs, have you done with your speech?

I was at the end of my speech.

I would like to add that possible diplomatic incidents could occur. This is a ugly spin off of this legislative initiative. I will give an example. An American soldier who has experienced the war in Iraq makes a statement at a time when a judge ruled that crimes against humanity were committed in Iraq. If an American soldier is invited by any group and makes statements here, that person is punishable in that territory.

I will not mention any political incidents that may occur, in this case not with an American soldier from Abu Ghraib or who has served in that region, but with a civil servant, a minister, a consular official or a diplomat—although they are inviolable. This can lead to serious incidents, both politically and diplomatically, and with allies. I hold my heart.

That is why we submit the amendment that was rejected in the committee. We submit the amendment by Mr Borginon. We have passionately supported this amendment because it takes the fish out of this law, allowing it to obtain a much more solid status and which in any case avoids a lot of risks. Therefore, the Flemish Interest Group submits Mr Borginon’s amendment. If this amendment is not approved, we will not approve this law. With the submission of the amendment, we hope to get the transmission to the committee where we can discuss the matter again to the bottom so that we can eliminate the nefaste consequences that this law can relate.

Mr. Speaker, for the position of our group, I refer to the relevant passage in the report.

If I thought that Mr. Schoofs would have said something that I should oppose, I would have addressed him about it. I did not deal with him as a person. All I have said and now repeat is that you are indeed not standing there as the guardian of your brothers, but as a representative of a party. I have cited a few examples that you know as well as I do. Regardless of or exactly considering the date you were born, it might just be worse that you do nothing in your own party against that kind of statements. That’s all I said, not as a block watch, but as a guardian of a form of respect for a number of facts, more specifically the genocide.

I can only say that Mr. Schoofs spoke not only on behalf of the Chamber Fraction of the Flemish Interest, but also on behalf of the Flemish Interest itself.

Mr. Speaker, I can, of course, perfectly assume that, coming from Mr. Annemans, the man who not so long ago said that the situation of the Flemish Bloc in Flanders was best comparable to the situation of the Jews in Germany in the years.

I ask for the word for a personal fact.

Mr. Marinower knows very well in what context I have spoken those words and made that comparison. Mr. Van der Kelen had written a main article in which he compared the interpellations to Minister Flahaut with the persecution of the Jews, and then I said, in that context, and only in that context, in defense of an interpellation of five other parties about the fate of my party, that he could better apply that equation to my party than to simply interpell the Minister of Lands Defense, who more than deserves to be interpelled every week.

However, Mr. Marinower, we cannot go from personal fact to personal fact.

This is the last thing I will say.

Mr. Annemans will probably have as many memories from the interview of his party leader.

Mr. Annemans, two years ago your party leader, now still the chairman of your party, said the following about Mr. Raes. He recognized for everyone the right to continue to question any historical fact, including that which Mr. Raes had questioned. He also said that Mr. Raes’s only mistake was that he had done it as a politician and not as a human being.

Mr Schoofs spoke on behalf of the Flemish Interest and on behalf of the whole party.