Proposition 52K1730

Projet de loi modifiant les articles 189ter, 235ter, 335bis et 416 du Code d'instruction criminelle.

General information ¶

Submitted by

The Senate

Submission date

Jan. 8, 2009

Official page

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Status

Adopted

Requirement

Simple

Subjects

judicial inquiry judicial investigation legal process criminal procedure

Voting ¶

Voted to adopt

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

Party dissidents ¶

• Renaat Landuyt (Vooruit) abstained from voting.
• Olivier Maingain (MR) abstained from voting.

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Discussion ¶

Jan. 15, 2009 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mr. Minister, dear colleagues, I am therefore responsible for reporting, on behalf of the Justice Committee, on the discussions that have occurred, in the last two days, concerning a bill from the Senate and amending Articles 189ter, 235ter, 335bis and 416 of the Code of Criminal Investigation, but also a bill filed by Mrs. Nyssens aimed at amending Article 416, paragraph 2 of the Code of Criminal Investigation in order to bring them in conformity with the case-law of the Constitutional Court concerning particular methods of investigation.

I would like to point out that I am doing this report on my own behalf, but also on the behalf of my excellent colleague Mr. by Landuyt.

As part of his introductory presentation, the Minister of Justice wanted to clarify that the bill aims to remedy the great legal uncertainty resulting from recent jurisprudence, and more specifically from a judgment issued on 28 October 2008 by the Court of Cassation which emphasized that the interpretation of the Chamber of Accusations of Gand regarding the presence of the Attorney General was not correct. The public prosecutor must be present at this stage of the proceedings.

Furthermore, based on the judgment of the Court of Cassation in question, the Court of Appeal of Ghent declared, in a judgment of 6 January 2009, the nullity of the public action based on the evidence arising from the aforementioned particular methods of search.

Ten deliberations have already taken place following this decision. A small hundred cases that have been treated in the same way by the Accusation Chamber of Ghent risk, therefore, to experience the same fate if not acted quickly.

In order to remedy this situation, Article 2 of the bill under consideration amends Article 189ter of the Code of Criminal Instruction. In its current wording, this provision already allows the court, on the basis of concrete elements emerging after the control of the betting chamber, to assign the latter to check the legality of the application of the particular methods of search, observation and infiltration. The article is supplemented to empower the judge of the substance or the Court of Cassation, in the event of an incident, to act the same.

Article 3 is intended to put an end to differences in interpretation as to the scope of Article 235 as regards the presence of the Attorney General when the parties are heard by the Accusation Chamber.

The Minister also expressed opinions on the other articles of the proposal and, in particular, on Articles 4 and 6.

The Minister concluded his presentation by emphasizing that the bill under consideration deals with a specific and punctual problem. However, this is not a deeper reflection on the law as a whole.

In the general discussion, many colleagues spoke: Ms. and Ms. Baeselen, Laeremans, Nyssens, Van Cauter, Van Hecke, Giet, Landuyt, Terwingen and Van de Velde. It follows that all the speakers, taking into account the context, subscribe to the bill, in order to avoid the release of criminals and criminals. They also believe that there is an emergency. The majority wanted to emphasize that the legislator must thus intervene to repair the consequences of an error of assessment by the Accusation Chamber of the General Prosecutor’s Office of Ghent, an error committed despite the directives of the College of General Prosecutors, which interpels.

Some are wondering when the Minister of Justice will play his role with regard to the public prosecutor so that he assumes the responsibilities that are his own.

It was also emphasized that the draft under consideration concerned only the legislation on specific research methods and not the common criminal law and that it was aimed at solving a specific problem. Several members insisted on the need for a thorough reflection on the entire legislation concerned, referring to other problems raised in judgments issued by the Constitutional Court, but also on the need to take a position on the Grand Franchimont, not to mention the reform of the court of assises. Others regretted the fact that the judgment of the Court of Cassation known, it was not resorted to article 441 of the Code of Criminal Instruction. It was also referred to Article 189ter.

Finally, what about possible appeals against the law we will vote tonight and the new role entrusted to the Court of Cassation?

The Minister emphasized the following points. The bill is a repair legislation not to be confused with a comprehensive reform of the legislation on particular research methods. A preliminary draft was prepared by its predecessor, recalling that the legislation had already been amended in 2005. He subscribes to the idea of looking again at the Grand Franchimont and finding solutions to the issue of procedural incidents and nullities. It is also important that Article 2 refers to the manner in which the Chamber of Accusations has performed its role and not the substance of the control. Therefore, it is not a control of the legality of particular methods. In other words, what matters is to examine whether the procedure has been properly followed.

Regarding the application of Article 441 of the Code of Criminal Investigation and the follow-up given by its predecessor to the judgment of 28 October 2008, the Minister points out that several attitudes were possible and were submitted to the Attorney General of Ghent. Finally, the use of Article 441 did not appear to be the right solution. Ultimately, the previous minister preferred to wait for the Court of Appeal to decide on a specific case.

The bill also allows to settle the hundred cases concerned, but when the MPR legislation will be reviewed in its entirety, it will be necessary to decide whether or not the powers thus assigned to the Court of Cassation will be ⁇ ined. Finally, Article 3 of the draft ends the differences in the interpretation of Article 235b regarding the presence of the Attorney General when the parties are heard by the Accusation Chamber. The Minister also responded to the objections raised by the OVB. As for the role entrusted to the Court of Cassation, he insisted on the fact that in the state, necessity made law.

Several amendments have been submitted. Van de Velde who withdrew them after the explanations of the minister. Therefore, after the vote of all the articles of the bill, it was adopted unanimously by the members of the Justice Committee.

You are rewarding. On my speaker list for the general discussion are the gentlemen Baeselen and Van Hecke, and the ladies Van Cauter and De Schamphelaere. If no one else asks the word, the speaker list is closed. Does Mr. Baeselen abstain from the word? Then I give the word to Mrs. Van Cauter.

At this hour of your turn, Madame, you become more popular by considering the gift of bondage.

Mr. President, colleagues and colleagues, Mr. Hamal has detailed this draft. I will not do it again. Our group will effectively support this draft because the interference in the rights of defence, currently provided by the legislature, is reasonable and strictly proportionate to the importance of the objective to be achieved, namely to avoid impunity, and because it is compensated by a procedure that allows an independent and impartial judge to examine the legality of the procedure.

An additional means is effectively provided. In case of legal incidents relating to the control of the special methods of investigation, observation and infiltration, the court of substance and, where applicable, the Court of Cassation may reconsider the accusation chamber.

Furthermore, the right to appeal remains intact, but this is bound by certain deadlines, which benefits the legal certainty.

Mr. Speaker, I will conclude. Mr. Minister, I am addressing you directly. I continue to regret that you did not use the key you held in application of Article 441. I fully hope, and with me some of my colleagues, I assume that the key that the legislator now makes available will still apply today.

Mr. Speaker, the pleasure is not on my part to keep my colleagues here even longer. I have a few very short remarks for the parliamentary report, as the legislation will probably also be analyzed by the legal practice itself.

First, it is not a neck-over-head legislation. The proposal was discussed, amended and approved in a meeting of the Senate Committee of more than three hours and in a plenary session in the Senate of one and a half hours. In our committee we have devoted almost three hours to it and now there is the debate here. For one page legislative text goes far beyond the parliamentary statistics of energy, presentations, speakers and political attention.

Secondly, it is also not a referral legislation. There is no violation of the separation of powers when the legislator corrects shortcomings or shortcomings in the law, even when they have come to light in, for example, a judgment of the Constitutional Court or of the European Court of Human Rights. These judgments can be better clarified, enforced and written in a new law. This is also the case when the decisions of the Court of Cassation have not yet had the time to truly realize themselves in a uniform jurisprudence.

Third, it does not constitute a substantial change to the existing procedures relating to special detection methods. The control by the KI remains assured. It is a new procedural legislation, which also makes the legislation immediately applicable to pending proceedings. Of course, it is a small correction, which in the given circumstances aims to avoid further negative consequences such as impunity of an isolated jurisprudence at a time when other actors have not fully taken their responsibilities.

There is a need for a deeper parliamentary debate. This has already been promised by the Minister of Justice. A review of the special detection methods is urgent. In addition, ⁇ even more importantly, the question arises in the field of invalidity whether there is an absolute or a relative invalidity when the defence interest is compromised. A too tight system of injustices can lead to widespread injustice and jeopardize the safety of society and individuals. In recent weeks there has been a philosophical debate in Flanders about the relationship or non-relation between law and justice. As political leaders, we want a well-considered balance between the security of society and the rule of law. We hope that this debate will be held in the Justice Committee.

I will also try to keep it brief. I think it is clear that this parliamentary procedure is not really the normal course of affairs.

Of course, the problem has been raised and the government must quickly find a solution. Parliament had to be involved in this and, of course, a swift intervention was required. I have already said last week that all that hasty work that has now occurred – because it has gone very quickly – might not have been necessary if intervention had been taken early.

The government has assumed that the judges would basically make a wise decision and that they would not make that radical ruling. I think there is a wrong bet on this. Then the emergency procedure was initiated but the evil had occurred in the meantime.

Mr. Minister, you also announced that after this short correction law there will be a series of other amendments to the BOM law. We have asked you not to rush to work. You know that the Justice Committee in February will conduct a number of analyses of existing anti-terrorism laws, including the BOM legislation. I think it is ⁇ important that we do this evaluation very thoroughly in the Committee on Justice and only then begin the work to make any other changes. I think we should take the time to make good legislation.

I will return to the previous draft. Mr. Minister, we will support this, but I must tell you: ⁇ not from the heart. Not only because of the history and the guilty failure of the government, but especially because of the legal approach. We have already talked about this: this proposal also addresses ongoing dossiers. This is always especially delicate.

Furthermore, I always find it very difficult to deal with the inequality in treatment in the various files, especially when we look at what the Court of Cassation can do.

The Court of Cassation may also decide to send the file back to the KI in order to clean the file there of possible nullities and to be able to resolve necessary legal incidents. However, the Court of Cassation is the only genuine court that has to decide on the legality control. Just that control they will give a piece out of hands by sending the file back to the KI. I think this is an unprecedented intervention, even for the Court of Cassation. We will temporarily remove them. You have announced that this will hopefully become a temporary law that after a few months or years will no longer have to exist, will be able to be abolished and in practice will exhaust. We are actually dealing with opportunity legislation.

A fourth element is my greatest concern, Mr. Minister. Will this system pass the test of constitutionality? I am very afraid of that. I fear new procedural incidents and I fear that the Constitutional Court will intervene because of a different treatment. At that time we are in a third intervention of the Constitutional Court. I hope it will survive the test, but I am afraid.

Need breaks the law. The bitter pill will have to be swallowed by the Senate and Chamber. As a lawyer, I feel very uncomfortable about this and I think of many colleagues with me. What we are voting now is actually a bit of legal horror but then you should apparently close your eyes for a moment and go pick up popcorn. I think we should still bear in mind the fact that what we do today is absolutely not obvious, but it apparently serves a social interest.