Proposition 52K2127

Projet de loi relatif à la réforme de la cour d'assises.

General information ¶

Submitted by

The Senate

Submission date

Sept. 25, 2008

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

judicial reform appeal criminal procedure criminal court

Voting ¶

Voted to adopt

CD&V LE PS | SP Open Vld MR

Voted to reject

N-VA FN VB

Abstained from voting

Groen Vooruit Ecolo LDD

Party dissidents ¶

• Peter Luykx (CD&V) voted to reject.

Contact form ¶

Do you have a question or request regarding this proposition? Select the most appropriate option for your request and I will get back to you shortly.

Discussion ¶

Oct. 29, 2009 | Plenary session (Chamber of representatives)

Full source

There are two reporters, in particular Mr Libert and Ms Els De Rammelaere.

Mr. Speaker, before we proceed with the discussion, I would like to point out that, given the importance of the whole reform of the Court of Assises, which we all have been waiting for a very long time, we would appreciate it if at least one member of the Government had trouble attending the session and the discussion. Personally, I find it logical that it would be the Minister of Justice.

Mr. Speaker, Mr. Tobback, I agree with your opinion, but the Minister has been removed for a moment. I just left him the message that he should return. He will be present as soon as possible.

Can we agree with the following proposal? We only listen to journalists. Of course, it is not more than appropriate, fair and fair that the Minister, once the discussion begins, is present. I know, however, that he is coming. First of all, I would like to give the word to Mrs. De Rammelaere.

I thank you for your understanding.

Mr. Speaker, colleagues, in the past few months, the Court of Assises has often been in the spotlights, not only because of uplifting, often mediated processes but especially because of the annulment of various judgments by the Court of Cassation, because the obligation of motivation was not fulfilled.

You will undoubtedly remember that Belgium was condemned by the European Court of Human Rights in early 2009 because the courts of Assisi did not motivate their judgments. The discussion of the proposals for the reform of the Court of Assises, which were already pending in the Senate, was hit by the aforementioned condemnation in a current acceleration.

Despite the fact that the judgment referred only to the lack of justification of the judgments, the complete reform of the procedure before the Court of Assises was further examined.

The basis for the reform was laid in 2004 with the establishment of the Reform Committee of the Court of Assises.

This multidisciplinary committee examined two possible solutions in an interim report of 8 March 2005. First, the abolition of the court in its current form and second, its preservation provided that this is accompanied by the necessary modernizations.

The Commission subsequently prepared a number of reform proposals in its final report in 2005. The bill subsequently submitted to the Senate is based on the chapters of that report. It looked at ways to improve the effectiveness of the procedure, streamline the powers of the Court and respond to current expectations regarding the justification of judgments.

The Senate initiated the discussion of the proposal in November 2008, discussions which, as stated, were put under pressure by the judgment-Taxquet.

Finally, in July 2009, a compromise text was approved in the Senate. This text provides for the preservation of the Court of Assises and the people’s jury. That was a fact that was no longer questioned by the Chamber Committee.

After the first general discussions, the House decided that the present proposal should be examined to the judgment of people from practice. Both representatives of the sitting and standing magistrates and of the Orders of the various bailes were heard. They gave each with their own professional experience and those of colleagues their views on the reform proposals approved in the Senate.

On certain points they were movedly agreed, on other points they were clearly on a different line. Thus, they differed in opinion about the presence of magistrates at the jury’s deliberation on the debt issue, while then they all consider the preservation of the assistants alongside the chairman important.

In addition to the hearing, the Justice Committee also received the opinion of the State Council. Given the high urgency and scale of the draft law, the State Council has limited itself to a non-exhaustive examination and focused on the essential aspects of the proposed reform, in particular the distribution of powers between the Court of Assises and the Correctional Court and the justification of the judgment of the jury.

Subsequently, the State Council was also asked for an opinion on the so-called purification of invalidities. These aspects will be further discussed by the co-rapporteur, Mr Libert.

In addition to the draft law, transmitted by the Senate, four other bills were also submitted, three by the sp.a and one by the Open Vld, which limited themselves to introducing the obligation of motivation in the debt question without questioning the further functioning of the court.

The draft law of the Senate was amended extensively in the House. In the first reading, 224 amendments had to be discussed and voted, which resulted in the present text.

I will give you some adjustments, without becoming too technical.

As regards the magistrates, the original draft law provided that the court was composed only of a magistrates assisted by a jury. Depending on the complexity of the case, the President could be assisted by two assistants. In the committee, however, an explicit majority was won to maintain the current system of three professional judges as a rule. The draft was amended in that sense. The current state of affairs was ⁇ ined.

From now on, the President of the Court of Assises must have completed specialized training. Exceptions are prepared for the presidents who can be exempted because, for example, they have years of experience. In the case of an abandoned minor, at least two of the three judges must have completed the continuing training provided for therein.

The number of judges remained at 12. While jury members can now be between thirty and sixty years of age, the Senate ruled that at the age of 21 people have the wisdom, maturity and intelligence to be part of a jury. This was done outside of parliament. There, the commissioners considered the age of 21 not mature enough to belong to a jury. In the commission, an age fork was detained from 28 to 65 years.

In order to provide the jury members with the opportunity to make the necessary professional and family settlements, it is provided that the jury shall be composed two working days before the beginning of the actual proceedings. The jury will also have to attend an information session so that they can prepare for their tasks.

New is also the anticipated parity. Only two-thirds of the jury members may be of the same sex. Taking into account the comments submitted during the hearings, this requirement was not retained for the deputy representatives.

Of course, the European Court of Human Rights was also addressed and the mandatory justification of the question of guilt was provided. First, the jury alone, without the judges, will judge the question of debt; then the jury will discuss the motivation with the chairman and the assessors.

If, when drawing up the justification, the court finds that the jurors have manifestly mistaken about the main reasons that led to their decision, the court shall forward the matter to a new session with a new jury. This measure already exists today. The adjustment lies in this, that it can now only if the accused is found guilty. The Senate’s draft drew the open to the innocent. This was repealed by amendment in the House so that this also remains with the old system.

Regarding the procedure, an adjustment was provided that now takes place in a preliminary session, preceding the hearing on the merits. During this session the list of witnesses will be drawn up. The jury is not present.

During the discussion on the preliminary session, the initial proposals were discussed through an amendment. Proposals to settle procedural matters at this session were ultimately not stopped in the Senate, nor in the Chamber, given the negative opinion on the subject of the State Council.

Regarding the planned limitation of the jurisdiction of the Court of Assises, the State Council gave a negative opinion. The bill introduced a new distribution between the court of assises and the correctional court. Crimes sentenced to a maximum sentence of twenty years imprisonment would now be dealt with directly before the correctional court with correctional facts. Furthermore, nine additional categories of crimes would be eligible for correction, provided that mitigating circumstances are taken into account. However, according to the State Council, this is not in accordance with the principles of equality and legality, which ultimately led to the preservation of the current system of distribution of powers, though with an expansion of the crimes that can be correctionalized.

Mr Libert, co-rapporteur, will have an extensive discussion with you on this subject.

Finally, I can inform you that the amended bill was adopted in the committee with 10 votes against 3 abstentions and 1 vote against.

So far, my report on the bill. Collega Libert will explain some specific changes in more detail.

Mr. Speaker, Mr. Ministers, dear colleagues, it is my responsibility to highlight three main aspects of this reform of the Court of Assises: the first aspect is related to the penalty and competence of the correctional court, the second concerns the purge of nullities and, the third, the motivation of the judgment of the Court of Assises.

Regarding the question of penalties and the jurisdiction of the correctional tribunal, the draft that came to us from the Senate, in its article 13, provided that the correctional tribunal would be competent not only for crimes, of course, but also for crimes for which the prescribed sentence did not exceed twenty years of imprisonment, as well as for a whole series of crimes listed in eight categories. It should be clarified that these eight categories were initially punishable, according to the last paragraph, with a prison sentence of up to twenty years.

It therefore arose from Article 13 of which the correctional tribunal was now aware of crimes whose sentence did not exceed twenty years of imprisonment, as well as eight other crimes listed in paragraph 2 of the same provision. Among these eight crimes, we first find the six crimes for which correctionalization was already planned as well as two other crimes added: the evil obstacle to traffic that caused the death of a person and the false testimony that would have caused a person to be sentenced to life imprisonment.

Furthermore, the draft directly attributed a competence to the correctional courts to judge the perpetrators of certain crimes and to pronounce against them penalties that could be criminal penalties, without however being able to exceed twenty years of imprisonment.

The Council of State, after examining the draft and before the examination in committee of the House, made remarks which are essentially of three orders. The first concerns the implicit aggravation of penalties, the second concerns the question of mitigating circumstances and the third concerns the question of prescription.

Regarding, first of all, the implicit aggravation of penalties, the State Council draws attention to the fact that the reform produces radical effects different from those provided by the mechanism of correctionalization of certain crimes known in current legislation.

Indeed, the correctional tribunal could now decide, in view of Article 13, on criminal penalties, that is, deprivation of liberty penalties of a longer duration than that of imprisonment penalties that can currently be pronounced in the event of correctionalization of crimes.

In the case of correctionalization of a crime, the current system requires that the correctional court that hosts this offence will not be able to condemn to a criminal sentence. He will be limited to a sentence not exceeding five years, ten years in some cases, very precisely when he is seized for a crime initially prosecuted for a sentence of ten to fifteen years.

This aggravation, the State Council continues, implicit of the punishment in comparison with the system in force, appears as a logical consequence of the system but it remains not less that the legislator must reflect on this consequence and must check, on the occasion of the reform, whether the scale of penalties for these offences qualified as "crimes" should not be revised.

Another note of the State Council concerns the mitigating circumstances. This comment goes in the same direction. The Council of State observes that, if the admission of the mitigating circumstances or of a cause of excuse permits in the present case the return of the accused to the correctional tribunal, the fact remains a crime and the correctional tribunal is no longer obliged, still in the light of Article 13 coming from the Senate, to pronounce only a correctional penalty but can, on the contrary, pronounce a criminal penalty which, itself, shall not exceed twenty years of imprisonment. On this point, the State Council continued, it is up to the legislator to examine whether this is his intention.

Finally, as regards the prescription, the State Council notes that, from now on, the correctional tribunal should apply, as the case may be, special rules relating to crimes or those relating to crimes. This would include the prescription of public action concerning crimes judged by a correctional court which would now be ten years and not more than five years. On this point, too, the State Council continued, the legislator will have to consider the opportunity to extend the limitation period for the crimes in question.

The Commission, concerned to meet the observations of the State Council but also the sensitivities of one and the other, came, in a rather consensual movement, to find a solution that consisted first of all in removing purely and simply the article 13 that I just mentioned and which concerned the competences of the correctional tribunal.

The consequences of this removal are as follows. Since we are in the perspective of the project as voted by the commission, there is the maintenance of the current system of correctionalization. Inquiry courts will therefore continue to assess the mitigating circumstances but this system will undergo a series of adjustments, which are three-order.

First, the list of crimes likely to be correctionalized will be adjusted. Amendment 135 thus amended Article 218 of the draft, which later became Article 230. In this article, it is specified what would be the mitigating circumstances. The text states that mitigating circumstances are only possible in the following cases:

- First, if the sentence provided by law does not exceed twenty years of imprisonment. The following lists fourteen types of offences that are over twenty years old but likely to be correctionalized.

- Secondly, the sentences that may be issued by the correctional tribunal will be revised in order to break this uniformity of sentences that can go, in the Senate project, up to twenty years. Thus, through amendment 128, article 4 of the Senate draft, which became article 2, will re-level and re-sequence penalties. Independently of the penalties provided for crimes up to five years, Article 2 specifies that, in the case of crimes, there will now be penalties that may be up to ten years if it is a crime punishable by imprisonment of ten to fifteen years, of fifteen years or more if it is a crime punishable by imprisonment of fifteen to twenty years, or of twenty years or more if it is a crime punishable by imprisonment of twenty to thirty years or life imprisonment.

The third regulation concerns the prescription period. In the new article 5, it will be raised to ten years in some cases, in particular the one where the offence is a correctionalized crime punishable by twenty years of imprisonment.

This is how the sentences were taken by the commission regarding the jurisdiction of the correctional court, and this is how they were re-sequenced.

I come to the second aspect: the purge of nullities. Let me first point out the problem.

During the 1998 reform within the framework of the so-called Franchimont Act, an article 235bis was inserted into the Code of Criminal Instruction. In its paragraph 5, this article introduces a system aimed at avoiding the repetition in the same case of successive debates on the same arguments essentially procedural, and more specifically nullity.

Paragraph 5 is essentially formulated as follows: irregularities, omissions or causes of nullity which have been examined before the Chamber of Accusations can no longer be examined before the judge of the substance without prejudice (thus except) in relation to means affecting the assessment of evidence or which concern public order.

You will have understood that this purge of nullities is only very partial in so far as it concerns only the arguments that the defense has chosen to present in the Chamber of Accusations, but leaves it free to spread its arguments between different courts without really creating a mandatory passage where all the procedural arguments must be exposed.

In other words, a lawyer seized from a defence file having found a cause of nullity could choose not to invoke it before the Chamber of Accusations to reserve to invoke it before the Court of Assises, which, of course, is a cause of disturbance of the debates since it is also subject to a judgment that should be delivered, which would eventually be subject to an appeal in cassation. Therefore, the deadlines would be substantially increased. This is the reason why the three presidents of the courts of assises that we audited were quite in favour of the mandatory and non-facultative purge of nullities, inasmuch as they would have wanted to force the defense to assert its grounds of nullity before the chamber of charges and that, if this had not been done, it would have been too late to assert them before the judge of the substance, in this case the court of assises.

This is stated by the Professional Union of the Judiciary. To counteract the double holding of the same procedural debate, the most practical solution is to fully valorise the role of the Prosecution Chamber by amending paragraph 5 of article 235bis of the Criminal Investigation Code. Irregularities, omissions, grounds of nullity or means affecting the assessment of evidence or concerning public order should be compulsory – this is the difference between optional and compulsory – submitted to the single Chamber of Appeals during the hearing on the rules of procedure without the possibility of submitting them to the judge of substance.

That is why we have proposed an amendment that has unfortunately suffered criticism from the State Council, the latter considering that moving from an optional purge system to a mandatory regime would undermine three principles. First, the Council of State considers that it is up to the judge of the main proceedings and in the present case to the jury of assises to assess the evidence submitted to it. Second, he recalls that it is up to the legislator to be able to justify, in the light of Articles 10 and 11 of the Constitution, the reasons for establishing a specific rule and to ask the question: "Is the procedure before the Court of Assises so special that it justifies a stricter regime of purge of nullities than in common law?"

More fundamentally, the State Council questioned the compatibility of the amendment with the requirements of a fair trial. “It may be admitted that a plea arising from the existence of an irregularity, omission or cause of nullity or arising from the existence of a cause of inadmissibility can no longer be raised before the Court of Assises when it has been debated before the Chamber of Accusations.” "On the other hand, it seems doubtful that one can condemn an accused without such means ever being examined by an investigative court or by the judge of the substance."

A second amendment was introduced, still addressing the purge of nullities. You will remember that in the current system of optional purge, if the arguments are raised before the Chamber of Accusations, they can no longer be raised before the Court of Assises, except, says article 235bis, if it is the means derived from public order.

This exception contained in the current text concerning the means which are related to public order has already been analyzed by many commentators of the doctrine as emptying the rule of article 235bis of most of its substance, since in criminal matters, all the rules are of public order. Therefore, it is misunderstood to introduce an exception on this subject. Thus, the Court of Cassation, in a judgment of 9 January 2002, itself pointed to this exception by specifying that it must consider itself in a restrictive manner, "under the penalty," the Court of Cassation specifies, "to deprive the rule of the said article 235bis of any scope".

Therefore, recalling the conclusions of the Commission for the Law of Criminal Procedure, contained in the Grand Franchimont, we have proposed to remove, in Article 235bis, § 5, the exception concerning the means concerning public order. The State Council approved this amendment in some way in so far as it was expressed as follows: "Amendment No. 1 aimed at removing the exception concerning the means concerning public order, no rule of law superior to the law seems to hinder this." This amendment was therefore adopted.

The third aspect is that constituted by the motivation of the judgments of the Court of Assises. I will first address the current situation by making a brief reminder of the Taxquet judgment, before addressing the recent case-law of the Court of Cassation, to finish with the text of the reform of the draft and the text finally adopted in a committee.

With regard to the current situation, pursuant to Articles 336 and following of the Criminal Investigation Code, the jury is called to answer by "yes" or "no" to each of the questions posed by the President of the Court of Assises. No comments are attached to the outcome of the vote. It follows that the decision on the guilt of the accused is not otherwise motivated. This is the case in Taxquet judgment issued by the European Court of Human Rights on 13 January 2009. In that judgment, the European Court of Justice ruled that the absence of motivation of the jury’s answer to the questions asked had as a consequence that the trial at which the accused was convicted was not fair within the meaning of Article 6 of the European Convention on Human Rights.

The reasoning of the Court of Justice contains in particular the following clarifications. Judgments must indicate sufficiently the reasons on which they are based. The extent of this duty may vary according to the nature of the decision and must be analyzed in the light of the circumstances of each species.

While Article 6 § 1 of the European Convention on Human Rights obliges the courts to justify their decisions, this obligation cannot be understood as requiring a detailed answer to each argument. It is therefore not about obliging the court to answer all the arguments that may be raised, for example, by lawyers in their conclusions.

There was then recent case-law of the Court of Cassation, in particular a judgment of 10 June 2009. In that judgment, the Court of Cassation stated that the jury’s decision on the indictment must highlight the considerations that convinced the jury of the guilt or innocence of the accused and must indicate the concrete reasons for which he responded positively or negatively to each of the questions.

On the proposed reform, as it came from the Senate, I briefly read the article 151 of the Senate Bill, which is located immediately after the reading of the answers to the questions that are asked to the jury: "The court and the jury then immediately withdraw to the Chamber of Deliberations. Without having to answer to all the conclusions submitted, they formulate the main reasons that led to the decision on guilt or innocence." As regards this text so drafted, the State Council indicated that this provision was in accordance with the case-law of the European Court of Human Rights as derived from the Taxquet judgment of 13 January 2009.

Nevertheless, when the committee had to examine this text, it appeared that the terms "guilt or innocence" were ⁇ too restrictive and that it was appropriate to extend their acceptance by replacing them with the terms "their decision", the text becoming now: "Without having to respond to all the conclusions submitted, they formulate the main reasons that led to their decision".

Why exactly this change? To draw attention to the fact that the reasoning should not be limited to the main question but also to subsidiary questions, in particular concerning problems relating to aggravating or mitigating circumstances.

For or against the motivation of the judgments of the court of assises, this constitutes a large debate whose interest will not escape anyone. As for us, as legislators, this was an obligation imposed on us by the European Court of Human Rights.

As a conclusion, in order to initiate a debate which would here have only a purely intellectual interest, while retaining its full meaning, I will read what the Professional Union of the Magistrate has written to us concerning the principle of having to motivate judgments.

The principle of the people’s jury that deliberates alone is inseparable from the principle of secret ballot, since it is the secret character of the vote that guarantees the independence of each jury and its freedom of vote, regardless of the personalities that make up the jury. The weaker, shy or vulnerable jurors are protected from this and, with them, the real expression of twelve distinct voices and not the only opinions of potential leaders. However, the principle of secret ballot is not compatible with a coherent motivation of the decision. In order to express the reasons that have been taken to take a decision, it is still necessary to express those who have spoken in the sense of the decision made. Will a jury who has voted or will vote in favour of the acquittal be asked to express the reasons for the conviction to which he has not taken or will take any part? It must therefore be agreed that the principle of motivation of the decision, as imposed by the European Court of Justice, imposes the disappearance of the secret ballot in favor of a deliberation – which will obviously remain secret –, as it is practiced between professional magistrates, allowing to obtain both a majority and a motivation involving the adherence of this majority.”

I would like to thank Mrs. De Rammelaere and Mr. Libert for their excellent report.

Before we continue the general discussion, we will return to the oral question of Mr. President François Bellot to the Secretary of State Philippe Courard.

Questioning (voortzetting)