Proposition 51K1317

Projet de loi modifiant la loi du 13 mars 1973 relative à l'indemnité en cas de détention préventive inopérante, la loi du 20 juillet 1990 relative à la détention préventive et certaines dispositions du Code d'instruction criminelle.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

Aug. 25, 2004

Official page

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Status

Adopted

Requirement

Simple

Subjects

criminal procedure detention before trial

Voting ¶

Voted to adopt

Vooruit Ecolo PS | SP Open Vld MR

Voted to reject

CD&V FN VB

Abstained from voting

LE N-VA

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Discussion ¶

March 10, 2005 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mrs. Deputy Prime Minister, my colleagues, my speech will be quieter than the previous one because it deals with a very important topic: preventive detention.

We all know that our concern is to reduce prison overpopulation. The project that is subject to our sanction will probably not change much of the prison overpopulation but it deserves a positive vote because the concept of preventive detention must be revised as a whole.

This project aims to intervene on a timely basis in the preventive detention procedure so that it can be carried out more easily and efficiently. This one-time intervention can therefore have an indirect influence on the number of arrest warrants issued as well as on the duration of preventive detention.

In summary, the project’s strength lines are as follows: the continuation of the investigative judge’s powers in matters of preventive detention, the strengthening of the control of the Prosecutor’s Chamber, a simplification of the settlement of the procedure before the Prosecutor’s Chamber, the precision of the penalties in case of non-compliance with the substantial formalities conditioning the issue of an arrest warrant, the easing of the monthly control of the preventive detention in case of non-correctionalizable crime, the adjustment of the duration of the effects of the judgments of the Prosecutor’s Chamber and the precision on the duration of conditional release.

It should be recalled that this bill should be read together with the bill amending various legal provisions in criminal matters and criminal procedure in order to combat judicial delay and aiming to improve the so-called procedure of summons by minutes. This procedure makes it possible to summon before the correctional court, within very short periods, a person accused of committing an offence. For the cases covered by this new text, it is therefore imperatively the procedure of convocation by minutes that must be preferred.

The opportunity is also used to adapt the law of 13 March 1973 relating to compensation for inoperative preventive detention, following the judgment of 26 November 2003 of the Court of Arbitration which found that Article 28, § 5, paragraph 1 of that law is contrary to Articles 10 and 11 of the Constitution. In this regard, the bill is in line with the draft law. Borginon and Mrs Lahaye-Battheu.

The Justice Committee held the hearing of Mr. Yves Liégeois, first general lawyer at the Court of Appeal of Antwerp, Mr. Bruno Bulthé, President of the Belgian Association of Investigative Judges Marc Allegaerd, Judge of Instruction in Courtrai, Mr. Lugentz, Investigative Judge in Brussels, Mr. Rob Hobin, Instructional Judge in Malines, Mr. Ignacio De La Serna, Judge of Instruction at Charleroi, Mr. Jean-Marie Berkvens, President of the Council of the King’s Prosecutors Francis Moinet, Chairman of the Chamber of the Council of Neufchâteau, Mr. Philippe Delwaide, Chairman of the Chamber of Liège Council, Mr. Ludo Kools, administrator of the “Orde van Vlaamse Balies”, Mr. Christian Vandenbogaerde, lawyer and Mr. André Risopoulos, lawyer, for the Order of French and German-speaking bars.

by Mr. Servais Verherstraeten described the hearings as “historic” because never has a bill been so criticized and disapproved by the people hearing. It was therefore fundamental to take into account the remarks made by the persons in charge of applying the law in project.

The question arose as to the compatibility of the provisions of this bill with the proposal of law concerning the Code of Criminal Procedure. According to the CD&V, the risk is real that the two texts interfere and each resolves the same problem differently. It is important to ensure that the bill proposal called "Grand Franchimont" corresponds to the objectives of this bill in order to avoid any further contradiction between the two texts.

Still according to CD&V, this project practically does not provide a solution to the problem of prison overpopulation. To repeat exactly the words used by Mr. Servais Verherstraeten, "The government has decided not to create additional prison capacities while such a measure is absolutely necessary. In addition, there is a real lack of resources available to solve existing problems. Thus, the houses of justice are constantly complaining about the lack of personnel in order to be able to increase the number of alternatives to preventive detention. There is no guideline for the conditional release, which, however, came from good intentions. The labour penalty remains, on the other hand, also ineffective due to lack of resources. All these measures will only be effective when more resources are allocated to them.”

The CD&V raised the question of the means necessary to make the proposed measures effective and called for a more in-depth study of preventive detention.

by Mr. Muls (sp.a-spirit) emphasizes that the remarks made by the speakers during the hearings are reasonable remarks in terms of legal technique. It is not a political philosophy. In addition, these observations come from field actors at different levels. Therefore, it would be wise to take into account their comments to eventually adapt the bill to the examination. He does not understand that in a time when the means of communication and mobility are so numerous, it is necessary to extend the time period of arrest from 24 to 48 hours. Such doubling of deadlines will not resolve the problem of the short time allocated to the investigating judge to properly apply the formal and content requirements of the Act of 20 July 1990 on preventive detention. He adds that the investigation judge will always have only a few minutes to complete his task. The latter has an important task of deciding whether or not to restrict, for a certain period of time, the basic right that is in our society the right to freedom. Therefore, the intervention of the judge must be made as soon as possible. Therefore, the interviewer does not see why the current deadline should be changed from 24 to 48 hours.

by Mr. Muls also notes that at present, when a prosecutor requires a judicial investigation to be initiated and an arrest warrant is issued, the investigation judge has only two options: either he does not issue the arrest warrant, or he issues it. Could it not be considered to grant the investigating judge the possibility to take an intermediate measure? There is no residence assignment procedure in Belgium, unlike what exists abroad. Now, if for certain facts, it is necessary that someone is temporarily held away from society; in other cases, a distancing of society by imprisonment through the issuance of an arrest warrant, it is not necessary, he says. Why not consider the possibility of taking legislative initiatives to give the investigating judge the option to issue a residence assignment under electronic surveillance, as an intermediate chain between non-delivery and the issuance of an arrest warrant? This would also reduce the influx of people in preventive detention to prisons.

Eric Massin (PS) specifies that the bill under consideration does not question the principles of the law of 20 July 1990 on preventive detention. The introduction of the explanation of the reasons for this draft also makes the conclusion that, despite the reform carried out by the law of 20 July 1990, the use of preventive detention could not be stopped. The exceptional nature of preventive detention, as underlined by the aforementioned reform, is not reflected in practice.

Several explanations can be given to this finding: the diversity of directives taken by successive Justice Ministers, the tendency of magistrates to too often invoke certain exceptional circumstances to issue an arrest warrant. These deviations undoubtedly have an effect on the density of the prison population.

Regarding the extension of the duration of the arrest from 24 to 48 hours, the speaker notes that the positions are not settled in this matter and proposes that hearing be held on this subject.

Claude Marinower, from the VLD, highlights the added value brought by auditions. They allow the collection of additional information, from various field actors, on the law of 20 July 1990 on preventive detention and its application. It appears that there has been agreement, both among the members of the committee and among the persons heard, that the Preventive Detention Act of 20 July 1990 is not a bad law and that the problems arise only in its application. It is appropriate, he says, that the essence of the problem is the too high number of people in preventive detention and, consequently, the high number of cases that must be settled in a short time by the judge and the gaps that this can create in the procedure. The impression may even be given that preventive detention is used as a preventive sanction, which is ⁇ not the intention of the legislator in the law of 20 July 1990 on preventive detention. Everyone agrees that this can no longer last, but that is still the reality.

To solve this problem, Mr. Lugentz, an investigative judge in Brussels, proposes an interesting track, suggesting the possibility of extending, at the end of the 24-hour period, by means of a motivated decision of the investigative judge, the duration of the arrest, similar to the French system where a custody can be extended.

by Mr. Marinower also believes that other alternatives to preventive detention need to be seriously considered such as the residency assignment system or the electronic bracelet.

It also examines the issue of handling cases before the decision on extending or not extending an arrest warrant. He finds that, in a case where the number of defendants is high, it is impossible for defendants and their lawyers to consult the documents of the case within 24 or 48 hours. Moreover, the application of the current system is not the same throughout Belgium. In some districts, when viewing the file, the use of a scanner is permitted while in others, such use is impossible.

In conclusion, the member agrees that there are real difficulties in the application of the law on preventive detention. The bill under consideration is a starting point for a solution and the remarks made during the hearings can ⁇ trigger some improvement attempts on the part of the minister or the parties.

In response to the comments made by the members of the committee, the Minister provided the following answers. There was a preliminary consultation on the submission of the project with the field professionals. As a result of this consultation, some amendments have already been made to the bill. With the exception of a few technical remarks, the minister noted a real support for the philosophy of the project.

According to the information provided by the Financial Inspectorate, the project under review will have no budgetary impact. The Minister reaffirms, however, the real need to continue the overall refinancing of the judicial sector, which is quite true.

Referring to the remarks made on the custody, the Minister notes multiple positions appearing in the media following the hearings: the opposition of the Trade Union Association of Magistrates, the favor under certain conditions of the Order of Lawyers, etc. The debate is indeed difficult. by

The Minister of Justice also notes that, although there is no questioning in the “grand Franchimont” of the law of 20 July 1990 relating to preventive detention, a provision provides, however, that when, as part of an arrest, there is a night in prison spent in a police station, the recourse to an attorney or a third person must be possible. Therefore, the minister is of the opinion that the discussion concerning the extension of the term of detention by sight could also take place in the Senate, in the discussion on the "great Franchimont".

Regarding the existence of alternatives to preventive detention, in particular via the electronic bracelet, the minister stresses the danger that this could lead to an extension of the concept of preventive detention to a "pre-letter" punishment, which in no way corresponds to the philosophy of the law of 20 July 1990. However, the release of an accused under conditions is always possible. There is also a large latitude for defining conditions. For example, the conditions of close surveillance can be judged by the operating magistrates.

In conclusion, the minister reaffirms that there is no questioning of the 1990 law on preventive detention but that the norm has dimmed. In practice, there is therefore a difference from the spirit of the law. That is why the bill under consideration is intended, on the one hand, to allow a more stringent return to the principles of the law of 1990 and, on the other hand, to resolve certain problems known in practice. Some provisions of the project aim to address these practical problems.

In response to the answers given by the Minister, Mr. Van Parys wanted to raise the following elements. It is surprising that the majority parties did not change their attitude toward this bill after the informative hearings on the subject. During these hearings, the actors made fundamental objections to the bill.

Thus, the chairman of the Council of Procurators of the King does not subscribe to the departure principle of the bill, according to which the preventive defendants represent 35 to 40% of the overall prison population.

Then, the Council of the King’s Prosecutors opposes Article 11 of the bill, which allows the judge to release a detainee, even after a first detention by the court of instruction, without any possibility of appeal. In fact, this is actually a short-circuit of the court of instruction. In addition, the Council proposes to extend the duration of temporary deprivation of liberty to 48 hours.

In his opinion, Mr. Liégeois, the first general lawyer near the Antwerp Court of Appeal, rejected one by one the various proposals made in the project. He believes that many of the occasional changes proposed in the project cannot be considered as measures that will improve the course and increase the effectiveness of the preventive detention procedure.

The hearings made it clear that the bill under consideration does not win the adherence of the actors. The CD&V group also does not subscribe to the starting principles of the bill for the following reasons: - It amends the law of 20 July 1990 on preventive detention, because the idea that the prison population has too many preventive detainees comes from a wrong principle. Public authorities must ensure that prisons have sufficient capacity to provide sufficient alternative measures and punishments. If the duration of preventive detention is to be reduced, the investigation should be accelerated in order to resolve the judicial delay and obtain a decision within shorter timeframes. - The Minister indicated that the bill amending various legal provisions in criminal matters and criminal procedure in order to combat judicial delay would improve the situation in pre-emptive detention. by Mr. Van Parys disputes this claim. He called for the restoration of the snelrecht procedure.

It was clear from the hearings that the extension of the detention period from 24 to 48 hours could limit preventive detention. This aspect of things should be taken into account in this discussion.

Finally, it would be ⁇ useful, says the CD&V, to also provide, within the framework of this discussion and as an alternative to preventive detention, a number of incentive measures in favour of freedom under conditions.

As for the discussion of the articles, I refer to my written report. If the Chairman allows me to do so, I will now expose the position of the MR Group in relation to the project under discussion.

We can, of course, subscribe to the philosophy of the bill presented by the Minister of Justice. In fact, it aims at better justice in shorter timeframes.

When it comes to prison overpopulation, it is essential to always consider this problem in advance. It is crucial to investigate what causes overpopulation in prisons. In this sense, the project marks significant advances in aspects such as the functioning of the council chamber, the accusation chamber, the relations between instructor magistrates, the procedure for arrest warrants and the various reports that were to be introduced and submitted by the magistrates, in particular the prosecutor’s office.

However, I am of the opinion that the examination of this bill should not be dissociated from a reflection on the accelerated procedure and, more specifically, on a faster procedure capable of giving citizens the feeling that judgment is made faster and that justice is rendered faster.

The accelerated procedure, recently modified, following the adoption of a draft submitted by the Minister, has been provided in our criminal arsenal since 1994 and is obviously not a sufficient response, at the present time, in the face of serious acts of violence requiring preventive detention. It was the immediate appearance that specifically targeted this category of acts. However, this procedure was cancelled by the Arbitration Court in 2002. For more than two years, no solution, no text has been proposed by the department to meet the objections raised by the high court.

The MR group of the Chamber therefore calls on the Minister of Justice to quickly put into work a new text in the matter allowing a quick criminal response for perpetrators of offences placed in preventive detention, which will give citizens the impression that justice is rendered faster. Currently, too few crimes receive appropriate treatment, which has a negative impact on actual security and on the impression of citizens towards the perpetrators of the crimes and gives this feeling of temporal impunity.

The MR Group of the Chamber is prepared to work with the Minister and the actors in the judiciary to develop a balanced immediate appearance procedure taking into account both respect for the rights of defence and the need for prompt punishment. As for the extension of the detention period from 24 to 48 hours, I must note that the debate remains open. This is a debate on a purely practical level but which will also deserve a joint analysis with the actors of the judicial world.

Mr. Speaker, I concluded with the report of the discussion on these two projects relating to preventive detention and with the position of MR.

I would like to thank the rapporteur for his report and for his speech on behalf of his group.

However, there is a technical problem that I let the Deputy Prime Minister explain to Mr Van Parys.

Are you going to do it yourself? I prefer you to do it yourself, it’s your job, by the way. I will say nothing. Mr Van Parys has the word in the general discussion.

I am pleased to be able to take the floor.

You have that right. I have never been able, able, and willing to refuse the word.

Mr. Speaker, Mrs. Deputy Prime Minister, colleagues, the bill we are discussing is intended to amend the provisional detention law and therefore has a special scope, given the consequences of this bill.

Mrs. Vice Prime Minister, colleagues, our group has fundamental objections to the bill. The purpose of the bill is to have fewer people who are in temporary detention in prison.

We do not share your starting point. In fact, we are convinced that the overpopulation of prisons is not resolved by speeding up the release of detainees or by reducing the number of detainees, but by providing adequate capacity in the prisons or by providing adequate alternative measures or by expanding electronic surveillance. We do not agree with the principle of this law. Changing the provisional detention law as an instrument against overcrowding in prisons is a starting point that CD&V cannot share.

We want to immediately offer an alternative to what is envisaged in this bill. During the discussion in the committee, we have put forward a number of proposals aimed at accelerating the judicial investigation. If the judicial investigation is accelerated, this will of course also automatically result in the duration of the provisional detention being able to be shortened. Accelerating the judicial investigation is of course an initiative that everyone will be able to endorse.

We have a number of proposals in this regard. I want to go over them very briefly with you. Their

First, we must come to a fundamental reform of everything that has to do with the expertises. Colleagues, expertises in criminal matters and following judicial investigations are often the subject of lengthy and complex procedures, of lengthy expertises. To solve this problem, we have a number of suggestions, which I would like to briefly explain. We need to come up with a list of quality experts, who can deliver their expert reports quickly and efficiently, thereby accelerating the judicial investigation.

If we want to hire quality experts for the judicial investigation, they must be adequately and timely remunerated. This is one of the problems: Criminal experts are being compensated too late and too little. As a result, quality people are no longer available for expert investigation in criminal matters, for judicial investigation. In this way we deal with people who are unable to deliver quality expertise quickly and efficiently. In addition, surveillance and controls will need to be strengthened as well as sanctions for those who do not deliver their reports on time. This would be an important initiative in the context of accelerating judicial investigations.

Together with colleagues Van der Auwera and Verherstraeten, I submitted a bill to extend the police arrest from 24 to 48 hours, allowing the investigative judge to get a report that is more documented than the files presented to the investigative judge. In this way, it may be possible to prevent the need to take a measure of detention. We know that a constitutional amendment is necessary for this. We have submitted a proposal for the revision of the Constitution — an article that is not subject to revision in this legislature.

The third element in accelerating judicial proceedings and judicial investigation is as follows. After it was destroyed by the Arbitration Court, which makes it impossible for a number of obstructive crimes to come to a short-term settlement of the criminal file, the speed law of the former Minister of Justice must be urgently repaired, colleagues. Finally, as an alternative, we suggest that freedom would be encouraged under conditions. The investigation judge may grant a conditional release as an alternative to a possible arrest. We could accelerate this by making a permanent legal assistant available to the investigative judge. The judicial assistants would be able to conduct a rapid social survey and thus make suggestions to the investigating judge to propose a measure of conditional freedom, which is carried out by the insights of the judicial assistants, instead of going to detention. In addition, home arrest and electronic surveillance as alternatives should be considered.

We do not see it in the direction of the bill that, in my opinion, erroneously attempts to unilaterally place fewer people in prison under provisional detention. We see it much more in accelerating the investigation, which automatically reduces the duration of the provisional detention.

After the hearing on this subject, CD&V had expected that the Minister would withdraw the draft because those who will have to work with this instrument — both the Attorneys General, the Attorneys of the King and the Investigative Judges — were destructive compared to the draft presented.

I will quote for a moment. I could make the quotes long, but that’s not the intention. For example, Attorney General Liégeois says on behalf of the College of Attorneys-General: "The proposed amendment can lead to absolutely absurd situations"." And on another point: "The legislator therefore does well to consider the disastrous consequences of the proposed procedural changes". It is the people who will have to work with that design and who will speak about this matter and about that design.

Furthermore, our group is fundamentally opposed to that bill because the provisional detention law has an important signal function as an immediate response to major criminal phenomena. If the conditions are met for the application of the law on interim detention, then I believe that one must indeed be able to respond to it, that an arrest must be possible in the interests of the investigation, for the protection of the environment, for the protection of the victims, in order thus to be able to thoroughly investigate serious crimes and to be able to prosecute. Weakening that law today means very concretely that this important signal is threatening to be lost. We cannot afford that, not in relation to the people involved in this crime, and ⁇ not in relation to those who are victims of those crimes. These are often serious crimes with severe impact on the victims and their surroundings.

The last argument why we fundamentally refuse to approve that bill is related to the fact that if we would accept that bill amendment today, we will re-amend the law on interim detention within a few months because at that time the bill-Franchimont is being considered in the Senate. That draft law-Franchimont effectively includes, among other things, the change on the provisional detention. Imagine, for the sake of legal certainty, for those who need to use that legislation: we have the current law, we have the draft law that makes changes, and within a few months we will change that legislation again. No one will find himself in it. This will lead to poor legislation.

Finally this. The discussion in the Justice Committee was chaotic. As a result, the texts present today, which were approved in the Justice Committee, at least by the majority, have created a procedure that shows large gaps. This procedure will have great consequences.

We have, among other things, observed — it is the amendments we have submitted — that in the draft law of the Minister of Justice it is stipulated that for the most serious crimes, the so-called non-correctional crimes, the council chamber does not decide on the confirmation of the arrest more than month after month, but every three months.

However, it has been forgotten to adjust the validity period of the decision of the council. This means that if the Chamber of Councils meets every three months, the title in its possession and the decision of the Chamber of Councils will only be valid for one month. Very concrete, it means that, if this text is approved, those who have been taken in interim detention for the most serious crimes will automatically have to be released after a month. This is the result of the discussions on this subject held in the Committee on Justice. Understand it very well, for the most serious crimes, this bill will, according to the text presented at the moment, result in the automatic release of those detained for the most serious crimes after one month. You will not even have to allow the council to intervene, which will be an automatic consequence.

Of course, I cannot imagine that this was the intention of the Deputy Prime Minister and the colleagues of the majority, but it is ⁇ annoying to find that we are threatening to approve a document which could lose all credibility of the judiciary. Imagine that in serious crimes such as murder, murder, and rape, the defendant is automatically released after one month if this text gets it.

We have therefore, Mr. Speaker, taken an initiative with the CD&V Group, because we absolutely do not want this to happen. We do not want that from an opposition situation, because of course no one benefits from it. We have said that we are going to submit an amendment to correct it, to correct it, to correct this serious error in the text. Thus, in this amendment, we propose that the decision of the Chamber of Councils be valid for three months, in such a way that this amendment can prevent the need to release serious criminals for procedural errors. This would indeed happen. This draft law will therefore be a new occasion – if approved – for release on the basis of procedural grounds. Colleagues, many of you will otherwise often face victims of crime who have been excessively and justifiably excessively annoyed by release or acquittal on the basis of poor or conflicting legislation or procedural errors. If you approve this, colleagues, then you have introduced one that will damage the credibility of the judiciary altogether and that will be a special mortgage.

Therefore, we invite you to review the amendment thoroughly, which will allow you to restore the euvel.

By the way, we have submitted two other amendments that we feel, Mr. Speaker, Mrs. Vice-Prime Minister, correct what was wrong in the texts that are presented. Among other things, we have found a violation of the principle of equality. If the suspect takes the initiative to submit a petition for release after one month and if the council does not intervene and extends the detention, no appeal is provided in the text. We feel that the fact that no appeal can be filed is a violation of the principle of equality and the right to appeal in this matter.

Colleagues, Mrs. Vice-Premier, we invite you to avoid this text being approved. It is a bad text; it is a bad bill. We have expressed our fundamental objections. If you persist, against the will of the people, we want to take our responsibility and tell you that you are threatening to approve a text with very adverse consequences. A very concrete consequence will be that people who have committed serious offences will be automatically released after one month. The amendment is supported by the CDH Group. You have been warned. We will give you the opportunity to repair this. If you do not do so, you will of course bear full responsibility for it.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. Van Parys who preceded me at this tribune.

The first amendment concerns the viability of a decision of the Council Chamber. Is it a month? Is it three months? The second amendment concerns the possible appeal.

We have co-signed these amendments because we believe that they allow for greater legal certainty and the achievement of the objective pursued by this bill.

In our opinion, the technical arguments developed in these three amendments deserved our support. It is essential to examine them in depth because we consider them quite well-founded.

I would like to start my speech in the general discussion with a number. While preventive detention must be exceptional, preventive detainees currently account for 35 to 40% of the prison population. Everyone is aware of the overpopulation of prisons in Belgium. We have the right to question this fact.

The primary objective of this bill is to reduce this prison population, even though that cannot be an end in itself. Preventive detention must be justified and ⁇ its purpose. This is the framework of this bill.

We believe that this project will not fully ⁇ its objective. Indeed, if the measures envisaged are positive, they are adjustments, improvements without completely turning the problem of preventive detention, even though most decisions go in the right direction.

I give a few examples. First, the investigation judge can now decide on his own to release the accused. Will he do it? In any case, he did not have that possibility before. This measure is positive, but what impact will it have? In my opinion, it will be quite minimal. Then, the mandatory inspection of the accusation chamber is planned after six months. The effect of this measure seems to me quite random. What will it bring more? Certainly, there will now be a compulsory passage in the wagering room after six months, which is a good thing.

In summary, these measures are going in the right direction, but their impact is quite reductive. I will later return to a number of cases mentioned many times in the Justice Committee, as part of the analysis of this project. Other solutions, we believe, could lead to better responses in terms of preventive detention. I think of a quick judgment procedure. It could also extend electronic surveillance, develop a policy of social assistance to the offender, allowing for more frequent and better enforcement of conditional release, and organize a debate on the extension of the period of detention. Van Parys spoke, which would go from 24 to 48 hours.

Currently there are legal problems with its implementation. In my opinion, these measures can help to go in the right direction and fight against this prison overpopulation that, I remind, is not an end in itself.

As for the second objective, I believe that the possibility for the Board of Trustees to extend preventive detention to three months for non-correctionalizable crimes and the possibility for the Board of Trustees to settle the procedure in a single hearing are also good measures that go in the right direction.

I also endorse the invalidity sanctions, now provided for in case of non-compliance with the rights of defence. by

However, I have a few remarks to make, in particular with regard to the coherence with the text of the "great Franchimont". Adjustments need to be made; they are essentially the same as those that Mr. Van Parys pointed out.

With regard to the office control of the Chamber of Accusations after six months of preventive detention, except for non-correctionalizable crimes, one may question the obligation to maintain Article 136bis which requires the King’s Prosecutor to report to the General Prosecutor on all cases not closed by the Chamber of Councils, within the year following the prosecution request, since this office control of the Chamber of Accusations has been inserted every six months. One may question the usefulness of the obligation to report the King’s Prosecutor to the Attorney General for cases not closed in the year of the beginning of the information.

As for the limitation of the monthly control of preventive detention, the order for maintenance in preventive detention being valid for three months instead of one, in the case of non-correctionalizable crime, the criticism generally addressed to this measure is that ultimately, the monthly control is ⁇ ined since the accused has the possibility to file this application for release from month to month. We will need to evaluate this measure after it is implemented to see whether this monthly filing of a release request does not risk to weigh on the existing process and whether it will effectively accomplish the simplification objective that provides for a decision every three months rather than every month. I think the goal is good. We hope that this release request will not be automated and will not simply fall back into previously existing systems.

Another measure is the extension of the validity period of the detention permit that constitutes the decision of the Accusation Chamber. This measure must be approved in its principle. It was justified by the fact that the investigation judge was too often dismissed from the case. When an appeal was lodged in the Chamber of Accusations, the file was no longer in the hands of the investigative judge; therefore, this slowed the ongoing investigation. The measure is good, although it must be added that, since the Franchimont project makes available to the judge of instruction a copy of the file, two files will be present, the copy and the original; there will no longer be this effective dismissal of the judge of instruction. Despite this new advance that the Franchimont project will insert, in our opinion, it is better that this call does not allow to delay the file to instruction again.

I will come to a topic that I also discussed in the committee, compensation in case of preventive detention. Mr. Minister, you told us in the committee that an appeal had been filed in this case and that the procedure was still ongoing.

However, I think that my amendment had the advantage of clarifying that the claim for compensation of a person who has benefited from an order or a stop-off for insufficient charges, could only be brought after the extinction of public action.

This amendment proposed, in my opinion, a reasonable solution, respecting the different rights present and would have allowed a more careful examination. In any case, I hope that this amendment will be subject to a thorough analysis when this procedure is closed before the European Court of Human Rights. I thank you.

The President,

"I must note that the starting point is not correct. In fact, the composition of the prison population depends on the directives of the Minister of Justice on the execution of the prison sentence. The more severe sentences are not executed, the greater the proportion of the interim detention. The data is thus induced by policy guidelines, which means that they no longer constitute a correct scientific basis." A general lawyer from your prosecutor’s office and the Flemish Interest say exactly the same thing and take down your whole starting point, your basic principle of this draft law. Fun is different, of course.

Also the Bruges prosecutor Berkvens was on the same wavelength. A naked comparison with the figures of 1990 does not go up, he says very rightly, because the crime picture has completely changed in those 15 years. The Bruges prosecutor Berkvens accuses you that you do not take into account, Mrs. Minister, with the illegal migration flows, with the fall of the wall, for example, and with roaming perpetrator groups, which automatically requires more use of the provisional detention.

This Minister of Justice is indeed so ideologically embroiled that she does not want to acknowledge that society has changed drastically since 1990, not for the better anyway.

The only powerful response that is logical and appropriate to these recent crime phenomena is the drastic expansion of prison capacity. CD&V also says this today and we are very happy that they have finally followed us in this regard. Just this political option is excluded for this Minister of Justice. She has made sure that this government has committed speech breaking. The additional cells in old military cascades, as expressly promised in this government agreement, have been referred to the scrap. The only thing that this minister is doing, and then in an obsessive and completely irrational way, is the accelerated emptying of the prisons, without taking into account that a lax punishment, the non-execution of punishment and an accelerated release must automatically lead to norm deflation and thus to recurring and higher crime.

This Minister of Justice says that there is no extra money for additional prisons and that there must be savings everywhere, but at the same time that same Mrs. Onkelinx ensures that the money in Brussels can be thrown over the bar.

Dozens of millions of francs for an inter-cultural house in the Molenbeek of Philippe Moureaux, a few hundred million francs for an outdoor swimming pool, the wet dream of Pascal Smet, or half a billion francs for a museum on immigration, while Brussels itself is a living museum on immigration, for that there is apparently money. However, there is no money left for the state’s core task of securing society and imprisoning criminals; this minister does not want to make it a priority.

We listened carefully during the hearings and then reviewed the reports again. We find it incomprehensible that virtually all criticism of the experts is rejected in a very light-sensitive manner, not only by the minister himself, of whom we are so often accustomed, but also by the committee members of the majority, of whom one could assume that they would be critical people or would present themselves as such and would be open to criticism when that wood cuts.

The hearings showed that this draft law is coming completely untimely. Currently, the Senate is working hard on a reform of the criminal procedure, the so-called Grand Franchimont. It makes no sense that a single chapter is being cleared in the Chamber right now, thus threatening to become an unimaginably complicated curve for everyone in the workplace. Furthermore, there are clear contradictions between this bill and the great Franchimont, which threatens to make the situation hopelessly inconceivable.

The hearings showed that this bill is counterproductive in a number of points and contrary to its own objective. It will ⁇ not provide for a faster and more efficient legal settlement. A number of new procedures, intermediate procedures and exemption procedures will be created and the number of procedures will be increased.

It will also not automatically accelerate the investigation. The disappearance of the monthly appearance after a certain period of time reduces the incentives at the police services in this regard. Both during the hearings and during the discussions, tips were provided to accelerate the investigations, for example by additional support from the investigation judges, by the more efficient approach and the faster payment of judicial expertises or by extending the detention mandate to forty-eight hours. However, those proposals were rejected.

The hearings have shown that this bill is also completely useless in a number of points. The tightened supervision of the accusation chamber, for example, will have ⁇ little effect, according to the college of prosecutors-general, according to the high magistrates. The College expressly regrets in its opinion that the effects of this have not even been studied and the measure is therefore a blow to the water.

This bill goes completely wrong where it introduces a ruthless restriction on procedural errors. The slightest form error will in the future automatically lead to the release of the suspect, even if it is the most severe possible criminal acts, to the most severe criminals whose release can cause great concern in society. I quote the college of Attorney General: “The absolute absurdity of these sanctions is demonstrated in the extensive opinion. The author of this preliminary draft" - and with this they mean, of course, the Minister of Justice - "is invited to discuss first the disastrous legal consequences of the most completely unnecessary additions."

I repeat that this is very clearly stated in the report. It can happen twice or maybe ten times. The Minister of Justice is invited to first thoroughly discuss the disastrous, legal consequences of the usually completely unnecessary additions. That is what the Attorney General says, not the Flemish Interest. They are the people who should lead the criminal policy in our country. I would not know with God how I could formulate it even more sharply.

Where does the government think of simply releasing suspects, when the arrest warrant is formulated somewhat too stereotypically and insufficient emphasis is placed on – I quote – “the actual circumstances inherent in the personality of the suspect”? That is how it stands. If an investigative judge does not sufficiently motivate the arrest, the suspect is released.

That form errors need to be corrected is logical. Mrs. Minister, who, however, uses the tactic of the hammer, in which the slightest form error must lead to immediate release, is completely irresponsible. It is typical for a French-speaking minister to give so much useless attention and useless weight to form defects. This is a typical French approach. However, it is also typical for a minister who constantly outweighs black-and-white thinking, as you always do, Mrs. Minister. However, it is incomprehensible that Flemish parliamentarians approve of this nonsense ne varietur.

Finally, the draft law completely wrongly imposes a far too heavy responsibility on the investigative judge by unnuancedly preventing the prosecutor’s office from appealing against a release. It is truly incomprehensible that an investigative judge can decide on release at discretion, even though there are no new elements in the file at all. The latter was originally still in it, but even that was now deleted.

Mrs. Minister, by putting the prosecutor’s office out of play, you are putting the whole society out of play, in the first place the victims, who now can no longer knock on anyone. Even if the investigative judge makes an enormous mistake in assessment or simply makes a mistake, even if the investigative judge is the subject of a threat or blackmail, there is no more possible story. The Minister of Justice can remove all guilt.

Mr. Minister, this is the point of coming. You will be complaining about this stupid measure for a long time. Mrs. Minister, it is not the first, bad design with which you come to Parliament and it will ⁇ not be your last. However, the design demonstrated that you always struggle with your mind, even if you receive the most destructive criticism from your closest associate, the prosecutors general. You are so convinced of your fact that you are no longer able to listen to reasonable counterarguments.

Mrs. Minister, if I were a cynic, I would say, “Do this way.” Continue, Mrs. Minister, undermining the rule of law, undermining people’s trust in justice. Just make it a little worse, Mr. President. One day, even the most moderate, the most indifferent, and even your own allies, will find that with this femme fatale and with this fanatical Party of the Socialists, there is no way to seize a country.

Mr. Speaker, Mrs. Vice-Prime Minister, dear colleagues, it seems to me that we are dealing, as part of this review, with an important project with more than one title. On the one hand, because it concerns the fundamental rights of citizens and, on the other hand, because it is a text that, despite all, is often applied by our courts and courts. All of this has ⁇ significant repercussions on the lives of citizens.

This bill concerns preventive detention and, in this context, it seems to me that we must be very vigilant so that the rights and freedoms of all are sufficiently guaranteed. I have already had the opportunity to say this in commission, preventive detention has, by its very nature, vocation to be exceptional. It constitutes a deprivation of liberty at a time when a person has not yet been found guilty of committing an offence. The deprivation of a person of liberty is a ⁇ serious act, which can be accomplished only for causes, and according to a procedure, determined by law. Furthermore, in the context of respect for individual freedoms, preventive detention must be avoided as a form of coercion or as a penalty before the letter. Preventive detention does not just mean deprivation of liberty. It is also sometimes the deprivation of a professional activity, the deprivation, in the short term, of a housing. It also makes it more random to maintain family ties, not counting the risk of recurrence, established by some studies, linked to prison promiscuity. In this regard, we can refer to the draft legal status of detainees, which we have already discussed in committee and in plenary session.

It is worth recalling that individual freedom is a right guaranteed by the Constitution, in its article 12, but also by the European Convention on Human Rights which imposes that deprivation of liberty can only take place by scrupulously following the procedure provided by law. In the case of detention before trial, deprivation of liberty is in itself a radical infringement on the presumption of innocence proclaimed by international conventions. More here than elsewhere, preventive detention highlights the traditional difficult balance of criminal proceedings balanced between two extremes. In this regard, this balance must be found between the requirements of public security and the protection of individual freedoms. The imprisonment of a presumed innocent person will always violate the principle enshrined in the European Convention on Human Rights.

From all times, in the struggle against crime in the name of justice, society has always complied with prison and freedom. With the advent of human rights, we were marked by a general aspiration to respect individual rights, which I just recalled, which would lead to the adoption of the law of 20 July 1990. This is a law that goes in the right direction, as the speakers in the commission recalled. It dictates and recalls fundamental principles: for example, in accordance with Article 12 of the Constitution, the exceptional character of preventive detention. Nevertheless, as practice demonstrates, it seems that one can speak of a norm dimmed over time. Indeed, we can see a discrepancy between what is happening now and the spirit of the law of 1990, which is seen in view of the number of people in preventive detention.

Unfortunately, through pre-determined formulas, stone formulas, practically pre-printed orders, motivations that go in the same direction on many occasions and which seem to become more frequent, preventive detention no longer holds this exceptional character; it is actually used as a punishment before the letter. Unfortunately, this leads to other difficulties such as the number of cases that need to be settled in a short time in the council chamber or in the prosecution chamber, which can also leave room for arbitrariness and cause human dramas, the whole involving undoubtedly an effect on the density of the prison population.

In this regard, the Minister recalled eloquent figures. The number of arrest warrants in 1990 amounted to 8,345 and in 1999 to 9,116. The average duration of preventive detention in 1990 was 2.59 months. In 1999, it reached 3.2 months. It appears that people who are in preventive detention make up between 35 and 40% of the global prison population.

Based on the elements that I have just recalled, it seems to me useful to clarify again that the bill under consideration does not question the principles of the Act of 20 July 1990 on preventive detention. I will allow myself to recall the exposition of the reasons, which states that “despite the reform carried out by the law of 20 July 1990, the use of preventive detention could not be stopped. The exceptional nature of preventive detention, as underlined in the aforementioned reform, is not reflected in practice. Several explanations can be given: the diversity of directives taken by successive Justice Ministers, the tendency of magistrates to mention too often exceptional circumstances in order to issue an arrest warrant, this drift undoubtedly leads to an effect on the density of the prison population."

It seems to me that the finding is made: it is first to face a blurred norm, to face an exceptional character that is no longer encountered and to react to these problems to obtain an effect on the prison population. I recall that this law on preventive detention contains exceptional elements in the sense that it is a law of deprivation of liberty. It sets out the exceptional conditions for issuing an arrest warrant or for ⁇ ining preventive detention.

One of these conditions is public safety. In my view, it should not be reduced to a feeling of public insecurity, purely subjective, but should lead to a certain form of objectivation so that the issuance of the arrest warrant does not take place solely on the basis of this feeling of public insecurity. Without this, we no longer encounter this exceptional character of preventive detention and it is a drift that we unfortunately face.

Another element mentioned, to which it is necessary to answer, is what is happening in the Senate as part of the discussion on the "great Franchimont". There is no reason to delay the examination and vote of this draft amendment to the 1990 law because a discussion is currently taking place in the Senate on the reform of the Criminal Code. For me, it is right that the Vice Prime Minister reminded us that only one element was discussed in the Senate, namely the presence of a lawyer when a person is arrested. This does not, therefore, concern all the provisions which are submitted to us.

This allows me to come to another point, raised during a discussion held within the framework of the committee, namely to extend the period of 24 to 48 hours of the measure of deprivation of liberty before an investigative judge intervenes. For me, there is no need to react in precipitation.

Why Why ? The first difficulty is the Constitution and in particular its article 12: after this 24-hour period, there must be the intervention of the judge. This is a constitutional problem. The second element is that this is a relatively difficult debate: let us recall the permanent balance between prison and freedom, the permanent balance between the presumption of innocence and the punishment before the letter.

Let us also remember the danger of perverse effects, resulting in a certain paradox. Indeed, we want to judge more and more quickly, but at the same time we are willing to give more time to the prosecuting party, namely the police services and possibly the King’s prosecutor. This could compromise the equality of the parties before the trial, including the criminal trial.

In any case, this administrative arrest exists.

I think there are a number of positive points to be highlighted in this bill. I will put five.

A first positive point is this sovereign decision of the investigation judge regarding the release. I recall a practical case that I mentioned in the committee: in the current state of affairs, when we have a confirmation in the council chamber, because we are waiting or because the council chamber and the judge of instruction are waiting for the conclusions of an expert, there is maintenance for the needs of instruction. Three days later, the investigation judge receives in his office the expert report, for example a DNA examination, confirming that the person in prison is not the perpetrator of the incriminated fact. Do we find it normal to wait for the next appearance in the council room? In my opinion, not at all. The investigation judge is able to assume his responsibilities and, on the basis of this new element, to release him. Is it necessary to provide for an appeal in the chief prosecutor of the King in relation to this? I do not believe. The judge of instruction is a responsible person, it is a magistrate. He has taken responsibility for issuing the arrest warrant, he can also lift it and release that person.

A second positive point is the limitation of the monthly control of preventive detention for punishable facts of the Court of Assises. I will not go back on this debate, we all have in mind the situation that has arisen, and it seems to me that this measure could encounter some difficulties.

The extension of the period of validity of the detention document constituted by the decision of the Accusation Chamber, from fifteen days to one month, constitutes, in my opinion, a third positive point. This is a great thing. This was also reflected in a proposal submitted by our group leader, Mr. by Giet.

Fourth point: clarification of the system of sanctions for invalidities is also the subject of a lot of debate. At the moment, we have in the law nullities but we do not have a penalty, an element yet quite special. I will therefore recall this individual freedom guaranteed by the Constitution; I believe in fact that, from time to time, it is necessary to tap the same nail several times. The procedure provided by the law must be followed scrupulously. If there is a need to revise the 1990 law on preventive detention, it is precisely because it is silent on the legal consequences of non-compliance and nullities. And if essential stages of the procedure are not observed, it seems to me that this constitutional principle must have its full and full effect. The result is the release.

Fifth and last indispensable and fundamental point: the prior interrogation of the arrested person constitutes an essential element to which a nullity that carries all its effects must be attached. It is undeniable that the person must be interrogated, that he must know the reasons for the interrogation as well as the elements of incrimination, and that he must be able to express his observations. This represents an essential part of the procedure on which the Board Chamber will decide within five days.

I think this fundamental element is indispensable. The same applies to the hearing minutes. In fact, it seems to me that a person must be warned that an arrest warrant will be issued against him and for very specific facts. This is an exceptional law. We also deal with an exceptional character of nullity.

Strengthening the control of long-term instructions is necessary to verify the progress of instruction. We are in the framework of an exceptional law that has an exceptional character. It seems to me that the investigation judge must report on his investigation before the Accusation Chamber. This is the least of things. In conclusion, this reform has unavoidably positive effects. The whole will be, as in the framework of the law of 1990, to see what the magistrates will do about it. by

My party will vote for this law.

De laatste spreker in de algemene bespreking is by Mr Marinower. Then, will we discuss the articles, unless the minister gives a small answer after the discussions? And yes ? As you want.

Mr. Speaker, Mrs. Minister, colleagues, there have indeed been very important hearings held in the context of the discussion of the present draft. That was also necessary, and it was ⁇ historical, in that sense — although I do not have the years-long experience of others — that all those involved in the application of that law have heard, from the prosecutor general to the chairs of the council chambers — a smaller and a larger council chamber — to the chairman of the College of Prosecutors of the King, and the bailes. We have heard little about it, but they have also been heard during those hearings. I will return to it later. Their opinion is, I think, not always to be neglected, ⁇ not in this case, since they are the very regular users — if you allow me that term — of the legislation on interim detention.

Mr Wathelet correctly reminded us that this legislation is still an exceptional measure. The deprivation of liberty is the exception and freedom is the norm, not vice versa. Occasionally, there is the impression that things are being put on their heads, and I am pleased that colleague Wathelet said this at the beginning of his speech.

Is it just about fighting the overpopulation of prisons? No, of course not. It is about more than that. But is there a problem of overcrowding prisons? and yes. There are, of course, different points of view from the beginning. There is the position of Mr Van Parys. I think I quote him correctly, as I have already done on another occasion. His point of view is — if I can summarize it — the following. First, there is no overpopulation; there are too few prisons. Second, if the period of interim detention exceeds six months, there is a reason for this. I would like to summarize the two main points.

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Yes, it is a very short summary. I say that too: it is very short and very cru summarized. The position of Mr. Laeremans on this subject is identical. However, one cannot look at a number of things.

Then there is the approach of those who say: 35% to 40% is a figure that is simply picked out of the air. It is cited by Mr Liégeois and it is said that this figure does not take into account a number of elements that must be taken into account. But I — and not only I, also Mr. Verherstraeten for example — have regularly asked questions about the overcrowding of prisons that leads to tensions and other problems. For example, in December, I asked a question in response to once again disturbing figures about the prison in Antwerp. As of December 6, 2004, 615 male detainees were held in the Antwerp prison for 391 available places and 49 female detainees for 48 available places. Among those 664 detainees, there were 530 — versus the normal population of 391 — who had not been definitively convicted and 71 who fell under the law of protection of society.

As for that legislation, you know that it is not the first time and it will not be the last time that questions will be asked about it. Recent statements, although contradicted by others by someone who was employed as a volunteer in Merksplas, indicate that urgent action needs to be taken.

Is this just about fighting overpopulation? and no. That is not a goal in itself, as you rightly said, Mr. Wathelet. This is an analysis of the application of the 1990 Act. The law of 1990 had to offer a solution to everyone, the user, those who would fall under it or fall within its jurisdiction, those who had to deal with it in the everyday area. What do we fix? It could not benefit. The application of the 1990 law has not provided the solutions that we all expected of it, no matter how much effort has been made.

In the meantime, I will add some other figures. The colleagues who have attended the hearing recall that in the committee discussion there have been long sessions of council chambers and AIs in which the detainees and their counselors, even at the end of a full-day session, should still have the right to see their case handled in the same adequate manner as those who had the luck to appear to the first one that day.

As regards the purpose of the legislation presented herein, it was very clearly stated during the hearing that it is intended to make the procedure under the provisional detention law more smooth and efficient.

Mr. Liégeois – whose arrival was already a little controversial before his arrival; his colleagues will still remember the discussion in the committee – has, of course, also provided more material than what is shown in the reporting of his presentation. I read in the documents from the hearing, in the letter of 23 November from the Attorney General of Antwerp to the Minister of Justice: "There can be no objection to the introduction of new modalities of provisional detention. There is no objection to seeking alternative ways to give the provisional detention undergoing in prison a genuine exceptional character. This is also in line with the intention of the government, which can be referred to the Council of Ministers of 30 and 31 March 2004. It is therefore also appropriate, in the place where it is imposed, to apply some nuances to the fairly cordial representation of what was said by Mr. Liégeois at that time. Other reports and writings published at other times should also be taken into account.

It is clear — in which our group can perfectly fit — that it cannot be a single measure. Moreover, this measure alone did not have the ambition, we thought to understand, to resolve the whole problem of the provisional detention. There is, and we are all convinced of, much more needed. Mrs. Minister, you will not blame me for this, but I had said in view of our discussion in the committee that I would ask you for statistical data on the treatment of cases of persons in provisional detention, both for the council and for the accusation chamber. What was it mainly about? I especially wanted to know the percentage we were talking about.

Mr Liégeois and the College of King’s Prosecutors have said that the figures in question are not sufficiently or sufficiently known, that we need to have more statistical data. I think this also applies to the parliamentarians who would have faced this.

I have already said this on the occasion of the committee meeting last week. Therefore, the response I received from your services was so sad and so little contributing to the debate. I requested statistics on the number of judgments, statistics on the number of judgments and, above all, statistics on the number of measures taken in which persons who were found under an exceptional measure, which is still and remains the provisional detention, were put on conditional release.

To my regret, I must note that the response of your services, according to the data I received about it last week, was that only partial data is available. I must also note that before the release with conditions up to twice I get the comment: "An important note on these data is that not all cabinets have given an answer. The statistics are incomplete."Incomplete in this case means that they are not very useful. The statistics are not complete in this regard. I can only quote from the answer given last week.

During the debates, following a comment from a Brussels investigative judge, the discussion was reopened on the extension of the period from 24 to 48 hours before an arrest warrant would be delivered.

So far there has been no consensus on this. There has been a consensus to explore the track. During the debate, you also partly undertook to have this investigated by the competent services.

I note that Mr Wathelet also agrees with regard to invalidities which would punish a certain failure to deliver an arrest warrant. In this, it is in fact no different from what is happening in the other branches of law.

Interesting is also the analysis of the 1990 law. Please allow me to move to the exhibition of the Order of the Flemish Balies. I quote: “As early as 1990 the legislator sought a legal arrangement that would allow to measure the number of cases of application of provisional detention and thus counter the overcrowding within the prison.”Old-staffholder Cools from Mechelen says: “The legislative change in 1990 has proved useful, but it must be established that the problem of overcrowding has continued to exist despite the noble purpose of this law. Everyone agrees that the intended reduction in the number of applications of interim detention has not been achieved.”

I am fully aware that Mr. Berkvens, among other things, in his response pointed out another form of crime that, among other things, since the fall of the Berlin Wall, has arisen since 1990, namely round-trip gangs. You absolutely do not hear me claim the opposite. It is only so that, as was also correctly cited by the representative of the Order of Flemish Balies, the provisional detention is not an investigative measure and most ⁇ also should not be a penalty in advance in the face of judgments that would later fall to the ground.

The examples of Mr. Van Parys and Mr. Laeremans show that by the legislative amendment in question a criminal — I do not speak of the facts he/she has committed — can be released after a decision of the investigative judge against which no opposition is possible from the prosecutor’s office. Liégeois’s letter of 19 October 2004 — another element of the written reflection of the hearings — refers to an incident in Mechelen in which a murderer was released, but not by error of the investigating judge. In that regard, I refer to page 2 of the letter of 19 October 2004. The main point of the case was that the council did not make a decision. I point out that such facts can occur and that mistakes should not be sought only with the investigative judge.

Secondly, it is also true — that can also be said — that in too many cases the prosecutor’s office asks month after month for an extension of an arrest warrant. In many cases, the Chamber of Councils will pronounce this extension in order to be confronted, at a certain moment in a case in substance, with a stance of behavior according to wisdom. This is also for. One does not exclude the other. The testimony given on behalf of the two orders of balies referred to this.

What Mr. Marinower says is correct.

There are individual situations where errors occur and abuse is made. This is in every legal system. For this, there are appeal systems and one can go to the Chamber of Accusation.

Just in terms of errors, the appeal procedure is also useful. If an investigative judge has an excessive responsibility and, as a result of blackmail or pressure, must release a person or, in the event of an error due to a poor interpretation of the file, releases a very dangerous person, it is very useful for the prosecutor’s office that there is an appeal. All the texts and all the hearings have shown that there are not so many issues. Why would one necessarily want to abolish the possibility of appeal if it can prevent serious criminals from being unjustly released. I do not understand your logic in this regard.

Mr. Laeremans, you can also not settle with the article on the nullities in the face of certain forgetting in the arrest warrant such as failure to refer or failure to hear the suspect. No mistake is made here. In civil law, invalidities are registered.

On your other argument I will come back later.

Mr. Marinower, you misunderstand me. I am not saying that mistakes should not be corrected. The investigative judge should be given time to correct the mistake. Only then can one think of release. Choosing a release for the sake of a small mistake is too far-reaching. The risks are too big. Without new facts, there is no further argument to bring the person concerned back.

Mr. Laeremans, we discussed these two elements at the committee meeting. I will close the paragraph of the nullities, in which colleague Wathelet could find himself. I note that.

You have a different opinion. I can only say that I wanted to point out the following. The examples referred to both you and Mr Van Parys in Mr Liégeois’s presentation suggest that those examples were cited on the basis of an error of guess by the investigating judge, and that therefore everything goes wrong. I only wanted to demonstrate that the report of Mr Liégeois shows specifically that in this case it was a jurisdiction that had committed this error, in this case the Chamber of Councils in Mechelen. That is the first point I wanted to address following your intervention.

I will also refer to Mr. Berkvens, who has been quoted here a lot. Mr. Berkvens rightly says that the figures from 35 to 40%, due to the lack of more in-depth analysis, are little meaningful.

Mr. Berkvens also refers to the problem of overpopulation that dates back to well before 1990. In the intervention of Mr. Laeremans, I note, on the other hand, that he, on that point, boldly admitted that it was not only about the minister’s predecessor, but indeed about predecessors.

As regards this problem, I return to the period since the law of 1990. I think the analysis, not only on the occasion of this discussion, but also on the occasion of other questions and other discussions, has pointed out that it is more. With the application, there is a problem. We all agree on this: there is a problem with the application of the law of 1990. Mr. Minister, I think from the speech standpoint, by the way, the following should be recalled. In the presentations we have asked your attention for the often archaic circumstances, which we have described, in which work must be done, especially when it comes to large files with multiple suspects that occur. I do not abuse this opportunity — I have also cited it in the committee — but I use it to remind you. In the committee you correctly pointed out the possibilities of burning on CD-ROMs, and so on. I pointed to the reality on the ground. That reality is that burning on CD-ROM does happen for the very heavy, more well-known assistive matters. But for the criminal files with which one and the other are faced daily, today we are in a situation where one bureau or one prosecutor general will allow to scan files, and the other not.

On the other hand, we refer to the comments we made in the committee.

In conclusion, we note that this is a number of punctual amendments to the provisional detention law. Whether this will cause the number of persons in interim detention to decrease or not is difficult to predict. Let us only hope that in any case the numbers and the numerical material will very quickly become more complete, so that for each of us we have the same numbers and there is no throwing with numbers either left or right. I refer to the answer I received last week, which was mostly incomplete in that regard.

However, there are positive points. We recognize that a number of positive measures are being taken. We will approve this bill, convinced that other structural measures will be necessary in the very near future. I thank you.

Mr. Speaker, the lawyers who advocated the cause of this case did so brilliantly. I would therefore allow myself to refer to their arguments in the context of the general discussion.

I would also like to mention the interventions of Mr. Van Parys and Mr. and Wathetet. They have different views on the bill. Maybe Mr. Wathelet feels more prompt to defend the objectives of the project under review, not because of subsidiary feelings due to the spirit of the 1990 law but rather because of his daily practice of courts and courts. Together, they submitted amendments, one of which I find completely relevant. Indeed, it highlights that through the discussions we have had in the committee — lively discussions during which many amendments were accepted — a mistake has slipped that could cause problems.

This project deals with a delicate subject; it is working on a balance between, on the one hand, the presumption of innocence and, on the other hand, the need for public security. I would not want this bill to be adopted with a collectively committed mistake at the time of commission work. Therefore, Mr. Speaker, I declare in plenary session that I support one of the submitted amendments. I think it would be better for this amendment to be returned to the Justice Committee to be analyzed.

I will first discuss the draft before going back to the article and the amendment.

Mr. Speaker, I appreciate the response of the Minister of Justice, who roughly admits that at least one point can give rise to serious problems. It is precisely about the point where, in the absence of determining the validity period of the judgment of the council, the most serious criminals will have to be automatically released after one month. I think the Minister recognizes the problem routinely.

The minister says that release is a collective responsibility. That collectivity is then — evidently — limited to the majority, Mr. President. First, we did not approve the point. Secondly, at the end of the voting on the amendments, we had requested that the text be examined in a quiet manner, in order to avoid the emergence of matters which are now necessary. Therefore, the collectivity is limited to the majority, Mr. President. I would like to use this nuance.

I can fully agree with this. I just wanted to suggest — there is something wrong with the sound installation; I hear all kinds of metal sounds in the background — that, if we have to review amendments, we will hold the article-based discussion next time and now send the draft back to the committee.