Proposition 51K2305

Projet de loi modifiant certaines dispositions de la loi du 17 avril 1878 contenant le titre préliminaire du Code de procédure pénale, ainsi qu'une disposition de la loi du 5 août 2003 relative aux violations graves du droit international humanitaire.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

Feb. 21, 2006

Official page

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Status

Adopted

Requirement

Simple

Subjects

international humanitarian law international criminal law crime against humanity war war crime war victim criminal procedure

Voting ¶

Voted to adopt

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

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Discussion ¶

April 20, 2006 | Plenary session (Chamber of representatives)

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I am referring to my written report.

Ms. Lilly is included in the discussion.

Indeed indeed . She is in the building, I will call her.

I know my glasses have a certain age, but I don’t see Mrs. Lalieux.

( ... ...

It is the gallantry that makes the president ask for patience from his colleagues when he is told that Mrs. Lalieux is coming.

I’m always told he or she’s coming, but I never know where.

by Ecce Mulier.

Mr. Speaker, Mr. Minister, Dear colleagues, I would like to thank Mrs. Deom for her report. I will speak briefly on behalf of the Socialist Group in this debate on the bill amending certain provisions of the law of 18 April 1878.

The project we are discussing today has a double objective. On the one hand, he wants to respond to the judgment no. 62/2005 of the Court of Arbitration of 23 March 2005; I will not make any comment on the path chosen by the government to respond to this first annulment decision, because this latter seems to me to be the right one. On the other hand, it wants to give effect to the judgment issued on 15 April 2005 by the Arbitration Court on the "prejudicial questions concerning article 29, § 3, paragraph 2 of the law of 5 August 2003 concerning serious violations of international humanitarian law".

On this second point, I would like to make a few considerations. I think it is important to bring all the clarity about this change and to draw the consequences that are necessary. by

It was recalled in previous debates, the objectives that were at the basis of the so-called "universal competence" law, even if they had to be tempered, remain. The need to continue the fight against impunity for violations of international humanitarian law remains the starting point of our approach. We cannot remain indifferent to these atrocities. Yes, we must prevent abuses from being committed here and there! Yes, it is essential to give people from countries ruled by dictatorial regimes, such as the Burmese junta, the opportunity to see their perpetrators condemned, a fortiori when they have acquired legal status of political refugees! Yes, we must all fight together against this Burmese regime! by

To this is added the logic of legal reasoning which can humanly lead to unfair situations. I can share with others the feeling of indignation at reading the briefness of certain judgments made by different courses on the subject. Remember that it is ultimately about explicitly confirming the primacy of the pre-existing international obligation arising from the Geneva Convention of 18 July 1951 on the Status of Refugees and its Additional Protocol to the Law.

Thus, while the Court of Arbitration responds to the Court of Cassation by a decision that states for law in this case the unconstitutionality of the provision, the Court of Cassation recognizes the discrimination denounced by the Court of Arbitration, but said, being for her a matter falling within the material criminal law, "that it was not up to her to repair the error of the legislator or to compensate for his forgetting and the void thus created, nor was it up to her to take the risk of interpreting the will of the legislator".

The solutions advanced by each other, given the symbolism of the matter, ⁇ deserve that all legal solutions be discussed and thoroughly discussed.

Thus, one could also question the mechanism established by the law of 5 August 2005 by entrusting the Court of Cassation with the power to decide on dismissal of the Belgian courts, which is indeed a final decision within the meaning of Article 7 of the Judicial Code which would prevent the recourse to an interpretative law, while it is the highest court in the country that calls for legislative intervention. In other words, here it is in no way about imposing a decision on the courts.

That being said, Mr. Minister, you said, during the examination of this draft, that an appeal for cancellation is currently pending before the Arbitration Court, on the same grounds as those that led to the judgment on the preliminary question. This could lead to a withdrawal procedure.

What I wish is to give hope to these justifiable political refugees and to promise them that one day they will be able to assert their rights before a jurisdiction of a democratic country that hosts them. It would be to recognize the suffering of a whole people and also denounce the activities of multinational corporations that take advantage of this suffering and this totalitarian regime.

We will therefore vote on this text, but with a regret: that of not being able to save a few justiciables — which international conventions would have allowed — because of a legislature forgotten during a debate a little too fast at the constitution of this government.

Mr. Speaker, Mrs. Minister, this bill aims to improve the 2003 law, as it allows to follow the decision of the Court of Arbitration of 13 April 2005 according to which the law of universal jurisdiction was contrary to the Constitution, in so far as it would impose the dismissal of Belgian courts, even though a complainant is a refugee recognised in Belgium at the time of the initial commitment to public action.

The bill, which will be voted today, thus assimilates the refugee recognized as a Belgian citizen within the meaning of the Geneva Convention on the Status of Refugees, to the Belgian citizens as regards the application of the transitional regime to the file that has been the subject of an act of instruction under the Law on serious violations of international humanitarian law.

Nevertheless, the fact that they have opted for a law rather than an interpretative law prevents Burmese refugees, who have been kicked off, from introducing a new complaint and thus seeing the instruction of their file reopened.

Onkelinx said in a committee that the question had been asked to the International Humanitarian Commission and that the International Humanitarian Commission had answered that it was not possible to develop an interpretative law because the case-law on the matter is constant. It would have been necessary that the original provision could reasonably be interpreted otherwise, including the recognized refugee, which was not the case. As the Minister said, therefore, one cannot resort to an interpretative law. Therefore, it is not possible to admit retroactive facts, new provisions for the benefit of the outcast Burmese.

This would be a violation of Article 7 of the Judicial Code, he said.

The aim was to avoid any new legal uncertainty. I understand this, but by doing so, the Ecolo group considers that it is admitted that a company such as TotalFina-Elf which has been active in Burma since 1992, shortly after the beginning of the regime of the military junta, can still today feed the Burmese junta in foreign currencies thus allowing this dictatorial regime to sustain itself, to wash money from drugs, to crush its population and thus to prevent the democratically elected government in 1990 from being able to sit. This company is proud to be in this country in these conditions! In addition, it was able to use Burmese workers under the regime of forced labour, under the pretext that it built a few schools and a few care dispensaries for Burmese children who live in areas devastated by the passage of gas pipelines.

Madame Gerkens, M. From the Eynde aimed you interrupt if you allow.

Mrs Gerkens, I wanted to ask you a question about the logic of the reasoning you followed here.

You complain that a military regime, a military dictatorship — the word is not too strong — like the regime in Burma, can still be supported indirectly because, for example, schools were built and attempts have been made to alleviate the most severe needs of the population on the ground.

However, I have the impression — you may contradict me, if I am mistaken — that you regret this given the criminal nature of the regime in power and given the fact that it is not at all a democratic regime.

You will undoubtedly remember — it is still very recent — that at this moment the European Union still so-called humanitarian — I use that word, because I currently have no other word — is helping the Palestinians, despite a regime like the Hamas regime having it right now. I would like to admit that the Hamas regime has come to power in a democratic way. For the rest, however, it is a regime that — I will use an euphemism — is not recommended.

If it is said that despite Hamas, the Palestinian people can be helped, for which there is much to say, then the same logic should still be applied to the whole world, right?

Regarding Palestine and Hamas, which has just been elected, I would tend to say: it is elected and must make arrangements to manage its country. He will be judged on his actions. So far, Hamas was not a government party. If he establishes a regime that violates the rights of citizens, it is obvious that my judgment on this government will be identical to that of the Burmese junta.

That said, there are also Burmese refugees who have filed a complaint on the basis of our Universal Jurisdiction Act, which has been amended. However, we have omitted to specify in this law that the refugee has the same access to justice as the Belgian citizen. In doing so, the recourse to the law is rendered obsolete.

Another problem concerns the company TotalFina. International bodies, including the ILO, have expressed the idea that it is impossible to invest in Burma without supporting the military junta in place. States and companies were therefore asked to cease any economic relationship with Burma, and therefore with the junta. There are testimonies from several European and international organizations showing that TotalFina’s contribution supports this junta.

I say it and repeat it: if a government of another country, but of the same type, violates the rights of its citizens in a similar way, I will obviously take the same position. I will likewise support a Palestinian refugee in Belgium who wants to file a complaint against X because his rights have been seriously violated. And I hope that he can use this law in the same way.

Mr. Speaker ( ...

But Mr. Van den Eynde, that is obvious! “De minimis non curat praetor.”

Thank you for the quote.

Mrs Gerkens, I can follow your reasoning, at least where you ask for the logic in connection with our legislation. You are completely logical in that. I did not comment on this from the beginning.

I just want to say this: they are shooting with all possible weapons at companies that are currently investing in Burma. I have told you that I also think this is a dictatorship. I have the impression that these companies are even blamed for supporting education there. Even that is criticized. It seems to be much less for Hamas. You say you want to wait for what Hamas will do. You don’t have to wait since Sunday.

On Sunday, a bloody attack was carried out in Tel Aviv which was supposedly approved by Hamas while a minister in the Hamas government said it was an act of self-defense. At that moment, I think everything is clear and ready. I do not exaggerate when I say that the Hamas regime in Palestine, even if it is elected, where this is not the case in Burma, should be treated in the same way as the regime in Burma.

I persist and sign if you consider that what happened on Sunday is a first clue. However, in Belgium, I am not in a position to make an objective judgment, based on concrete facts. There are international bodies for this; if these international bodies assess the way this government behaves towards its citizens and lead to the conclusion of a violation of rights, I will hold the same position.

My position regarding TotalFina and the Burmese Junta is also covered by international reports and recommendations. It is not my personal interpretation that allows me to adopt this position: it would be too subjective and would not be based on sufficiently clear facts.

To return to the subject of my intervention, my reproach to the bill we are adopting is that after having opted for an article stipulating that "the law also applies to refugees" rather than for an interpretative law saying that "the law, as it existed, concerned refugees from the outset since, in our Constitution, refugees and Belgian citizens have the same access to justice", doing so, the Burmese complainants are prevented from seeing their affairs reopened and revised.

I am offended by this situation that prevents us from taking care of the company TotalFina in particular. Others fled Myanmar and followed ILO recommendations, while Total is pleased and proud to support the junta.

I will therefore allow myself to submit an amendment, derived from the amendment I had submitted to the Interpretative Law. This amendment would allow the re-opening of the files: it would therefore entail a retroactive effect of this law for the decisions passed in force judged and rendered by the Court of Cassation, so that they can be withdrawn and reopen the files.

I have another regret for this bill: it does not provide for the possibility for the complainant party to be heard before the Accusation Chamber, which decides whether or not to initiate prosecution by listening only to the opinion of the federal prosecutor.

As a committee, I had introduced an amendment to allow the complainant to be heard by the Accusation Chamber. This amendment was rejected: it was argued that this phase of the judgment was not a judgment of substance, but a judgment specifying only the admissibility or non-admissibility of the complaint. However, the decision on this admissibility also depends on the capacity for prosecution in a country other than Belgium. In my opinion, it is then important that the complainant can also be heard so that the Accusation Chamber has the most comprehensive view possible.

This is even more true as this would enable compliance with the recommendations of the latest report against torture, which, within the framework of universal jurisdiction, calls on States to grant victims the right to an effective remedy by giving them the power to initiate public action through the constitution of a civil party and by any other means allowing the state to fulfill its obligations as effectively as possible. The same concern is reflected in the principles and guidelines of the right to compensation for victims of violations of international humanitarian law, enacted by the United Nations.

Finally, I know that if, today, complaints were filed in Belgium by Burmese refugees, they would be considered admissible. Nevertheless, I feel that the courage of those who have dared to complain is undermined. We finally denied Belgium’s ability to claim itself as a defender of human rights and respect for them, despite statements made to the press. I remember, in particular, statements made by the Minister of Justice concerning other crimes against human rights. Everything will be done, she said, so that these people can be tried in Belgium. Nevertheless, the judgment of complaints that were filed on the basis of a law that we had passed and that allowed individuals to claim civil claims, will ultimately not be possible.