Proposition 52K2215

Projet de loi relatif à la lutte contre la piraterie maritime et modifiant le Code judiciaire.

General information ¶

Submitted by

CD&V Leterme Ⅱ

Submission date

Oct. 21, 2009

Official page

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Status

Adopted

Requirement

Simple

Subjects

legal process navy piracy criminal procedure penalty maritime transport

Voting ¶

Voted to adopt

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

Voted to reject

Vooruit

Abstained from voting

Groen Ecolo

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Discussion ¶

Dec. 17, 2009 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, to the great satisfaction of my colleagues in a few moments, I refer to my written report.

Mr. Speaker, colleagues, at this late hour we may be able to discuss today’s most romantic theme. I will try to be brief. We have conducted a fairly thorough discussion on these bills. We had an exciting, lively discussion about it, but also with the necessary political and legal aspects.

The first thing that emerged when we started the discussion was that in Belgian law actually already exists a law that can be used in the fight against piracy. It is a famous law from 1928, which is 80 years old. The question was, then, why one has now chosen to draw up a new bill and why one has not simply used the law of 1928 to build on it further. Also, the question arises why the advice of the Council of State has not been followed and has tried to regulate it through the Criminal Code.

Apparently, however, this was a difficult exercise, since the law of 1928 was primarily intended for the merchant ship. When we asked whether this law from 1928 still applies, we were very proud. Apparently, we were expected to ask that question. Colleagues who were not there in the Justice Committee, I can tell you that there have been cases of convictions for piracy in Belgium based on the law of 1928. There was apparently a verdict in Antwerp that condemned Greenpeace. The Piracy Act of 1928 was used to condemn Greenpeace. Greenpeace had probably once seized a ship in a ludique action against environmental pollution and were therefore considered pirates. If this is the case, it would be better to abolish the law.

The choice of a completely new law, of course, also has its consequences. It is actually very funny and sad at the same time to see, Mr. Minister, that at the moment we begin in the committee to discuss a law on piracy, which actually needs to be made to enable the operation-Atalanta for the Somali coast, which own operation has already ended for Belgium and the ship is already sailing back to Belgium. At the moment, the ship is on its way. It may return again, but the treatment here was very urgent.

You need to look at the agenda, Mr. De Croo. This is a point of high urgency that we need to discuss and approve tonight. I have also asked if there may be pirates in the space waiting for our law. Apparently not. You also suspected this, but apparently this is not the case.

Mr. Minister, why do we need to resolve this at high urgency? I understand that a legal arrangement is necessary if we want to cooperate at international level in the future. The first text was discussed at the Council of Ministers in July. The second version is dated 18 September. The end of the mission was December 16. However, the agreement to start the operation has been more than a year old, namely from November 2008. So it took more than a year to make a legal arrangement, to give the military a legal framework within which they can operate. If that is good governance, Mr. Minister, then you have provided the proof of this today.

They are figs after Easter.

In fact, Mr Minister. In any case, the legal arrangement is necessary to regulate the duties of the military: the way they enter ships, how they enter ships, visit the vast, seize things, and so on. It is good that it is regulated, although we learned during the discussion that apparently many elements were already regulated through international treaties.

I hope that this law will not be a free letter for our military to massively capture Somalians or Puntland residents and bring them to Belgium. Not every fishing boat with nets is populated by pirates. I hope that our military will use their common sense. Considering the numbers of crimes committed by our soldiers abroad, I dare sometimes doubt that.

More interesting is the ability to prosecute and condemn any person participating in the activities. This includes the data providers, the persons who make material resources available, and the financiers of these pirate groups. We need to look at the organization. The people who repair the dirty work, being the people in the boats, do not earn the big money. They risk their lives to fill the pockets of the contractors in safe places. If we look at the amounts of the ransom, we can conclude that it is not the pirates themselves who get rich. Hopefully this law will be applied primarily against the people behind the scenes.

We have asked many technical and legal questions. We also received good answers in the committee. Mr. Minister, you were – I can say this – assisted by excellent staff, who are present here. They had to wait very long – the whole afternoon – for the discussion of the present draft. It is clear that your employees know the matter well, just as they know all the international treaties that have been concluded on the subject. They also taught us the aforementioned treaties. We are all specialists in piracy. It is a pity that the upperpirate, Piet Piraat De Crem, is no longer present to participate in the discussion.

However, I still have some doubts about the practical implementation of the law. We talked, for example, about how the hearing by an investigative judge should be conducted here in Belgium. The interrogation with a pirate must take place within 24 hours after the arrest, by telephone contact or radio contact. It must be done in all confidentiality. I would like to wait for a moment to see how this will work out in practice.

When the Belgians again become the victims of piracy, we could overcome the pirates and the pirates could be transferred to Belgium, I fear that lawyers will clear the procedure well. I hope there will be no free speeches. In the law, because of the rules, as well as the distances and the technical means that will be used, there are many chances of mistakes.

Mr. Minister, I therefore hope that the necessary preparations will be made when a mission leaves. I hope that the commander is well acquainted with the law and can draw up sound process-verbal. I hope that the procedures are well agreed. If we carry out such an operation, it will also cost money. Pirates arrested should be transferred to Belgium as soon as possible. This will happen with an airplane. However, your colleague De Crem always has aircraft available for all kinds of transportation.

But let us work on it so that, if we ever manage to catch one pirate, the procedure will end well and we will not be faced with a freedom judgment.

First of all, let us not mistake the enemy. The pirate groups are not random groups of young people. Piracy is becoming increasingly organized crime. It is primarily the fight against such crime, which we will have to carry out.

There is a large, practical problem in this regard, which has been addressed in particular by Mr Landuyt – I don’t know if he will explain it further. That is the problem of the civil party setting, because it is in the hands of the federal prosecutor to decide where the trial will take place. This will give victims fewer rights than in ordinary proceedings.

Mr. Speaker, I will close my presentation. I hope that this will end the evening session in a romantic way.

At night I always take it seriously. However, I would like to ask for the attention.

It is not unimportant that Belgium also develops its own legislation on piracy. You must remember that at the international level we are still a maritime country, which now occupies the twentieth place, if we look at the ranking worldwide. In my opinion, it is good that a regulation has been drawn up, because the consequences of piracy are, for the Belgian population and ⁇ coastal residents, sometimes very concrete. We have experienced this with Pompeii for a decade.

Therefore, dear colleagues, I would like to point out a painful forgetfulness or error in the legislative text. With the text, we provide for a criminal legal arrangement if the diplomatic roads wish. In fact, that legislation is good for the country and, internationally, for the shipping companies, but not perfect for the population itself. We have a specific arrangement for international crimes or crimes abroad and the civil parties. In this text, however, we grant less rights to the population, than in similar situations far away from home and with fewer ties to the home country.

Specifically, I regret the provision that the federal prosecutor itself judges on the opportunity of prosecution. Moreover, it is literally stated that the civil party statements are only admissible after the decision of the federal prosecutor. The public is therefore, in such cases, unlike the files in all other subjects, entirely dependent on the federal prosecutor.

If the federal prosecutor decides to do nothing, then the civil party, contrary to the general principle of law, can do nothing more. Therefore, we have submitted three amendments to refer to the existing regulation in similar situations, with the aim of declaring general law applicable in this matter as well.

I repeat it. What we arrange here is good for the country’s diplomacy and for the protection of our shipping companies, but there is little understanding shown for the families of those who have experienced it. I assume that, as with other crimes, we always give victims the right to initiate persecution. I do not understand why we do not do this here. Unfortunately, we cannot approve the second bill.

Mr. Speaker, I would like to say a few words about this important bill in order to show our Dutch-speaking colleagues that French-speaking people are also interested in the law of the sea.

The objections made by the previous speakers, including Mr. Landuyt, are not shared by the CDH.

In my opinion, mr. Landuyt makes a very ideological reading of a bill that tries to translate international conventions into our criminal law. It is obvious that piracy is essentially governed by international texts and by UN conventions, and the difficult exercise that was entrusted to us was the adaptation of these concepts of international law into our domestic criminal law.

by Mr. Landuyt blames, in particular, that a large discretionary power has been given to the federal prosecutor in Belgium. I would like to tell him that this provision is not intended at all to benefit ship owners at the expense of victims and families. Why did you give the Attorney General a discretionary power? This is because, depending on the circumstances, the federal prosecutor will assess whether the case should be handled here and how.

In conclusion, I consider that the Committee on Justice has provided a significant work, but that the room for manoeuvre to translate concepts of international law into Belgian law was not large.

I hope this text will meet some needs, although I don’t think it will be used often.

Mr. Speaker, as Mr. Landuyt pointed out, Belgium is currently the 20th shipping country in the world, according to a report published two days ago by the United Nations. It is very important that Belgium also assumes its international responsibility in the fight against piracy. Therefore, when it comes to the extension of the anti-piracy missions, Belgium must further assume its responsibility. The projects provide the necessary resources for this purpose.

What stands out here is an arrangement for military and military convoys. The law of 1928 still applies in full jurisdiction to the merchant ship.

Let me begin with Mr Landuyt’s reaction on the powers of the federal prosecutor. This has been debated in the committee for a long time. The Minister of Justice has clearly emphasized that after the decision of the federal prosecutor, all rights can still be exercised. In the words of Mr. Van Hecke, it should not be the intention that for every pirate we encounter on a Belgian ship, we should have the ambition to fly over it to Belgium. We must have the guarantee that the fight against piracy is effective and that those pirates are indeed punished. If they are found in territorial waters, then this happens preferably in the state, as is registered in the agreement with the Seychelles. Another option is international tribunals such as those in Kenya. Only in the last instance, if there is no other guarantee of effective prosecution somewhere in the region where the pirate is found, we must transfer him to Belgium.

That’s why I think the federal prosecutor’s filter is a good thing, because we shouldn’t have the ambition to let pirate aircraft fly over and over. I think this is far from intended, unless you wish to organize this, but we have also talked in the committee that this could have possible consequences. I think this is not desirable.

Colleagues, the pirates of today are no longer the pirates from movies, Piet Pieraat or the pirates with the eyelid. Piracy is a form of terrorism and international crime. I advocate that our country continue to take responsibility in this regard.

Mr. Speaker, I would like to take the word briefly for the Comprehensive Report, because I know that it is being followed very closely.

I want to emphasize that my reading of the text is not an ideological reading. This text should be read together with the existing rules in the Code of Criminal Procedure. Mr. Speaker, you will remember from the time of your ministry that we have never had diplomatic problems with the United States, because we had provided, at the time, under the impulse of the Prime Minister, that our courts had criminal jurisdiction in international conflicts. That was because we wanted to address a concern of the family members and the victims of crimes that occurred also outside our country. We considered it our vocation to ensure that people are entitled to the truth through a civil party, through a trial.

This resulted in exaggerations. A correction has been introduced in the law. In Article 12bis of the introductory chapter of the Code of Criminal Procedure, the civil party setting, the initiative of the population, was somewhat restricted. There are four cases in which a federal prosecutor can say he does not intervene.

In this existing article 12bis we have always provided, except for diplomatic matters, that the people may appeal against it. We have always guaranteed that fundamental right to truth through a criminal procedure for victims and their families. I cannot emphasize this enough.

What we do here is less than what is provided for international crimes or crimes abroad without any connection with a Belgian victim. Here we have crimes related to Belgian victims and their families and we give them fewer rights than in the general arrangement. There is no one method prescribed to do anything on the day that the prosecutor, for internationally important reasons, considers that he is better not to do anything. Then the Civil Party can do nothing.

It is not because the minister says he can do something, that the text of the law changes. Here, literally in this text, it is stated that if the federal prosecutor decides not to initiate criminal prosecution, we deprive the common people here in Belgium of the right to find the truth even further through a criminal prosecution. It is a pity that this has not been modified.

Mr. Speaker, I found the response of Mr. Waterschoot clarifiable. He says that it is not actually the intention that we transfer all the pirates who capture the Belgians to Belgium and that there should be as many attempts as possible to resolve it in Kenya or on the Seychelles. Therefore, it is ⁇ not intended to let all the pirates come here. If it can’t be otherwise, then. However, I thought that it was precisely the purpose of this law to allow the court proceedings in Belgium to be conducted when Belgian ships are involved. This seems to me also logical, just because of the possibility of civic party setting. What will we do? If there are Belgians involved, will we say that we have a law but that we will not do this, that we will not use aircraft but that we will do it in Kenya? Will they be told to the victims that they can go to Kenya to stand up for a civilian party? Will we do so? When I hear you, it’s like we’re going to pass a law that we won’t or will only apply exceptionally. I don’t think that was the purpose of the law.

I think you have made it clear that it is the intention of the law to use it when there is a link with Belgium. That also seems logical. When one says a, however, one must also say b and use an airplane. Then it will also be so. So I don’t know who is giving the right interpretation, the minister or Mr Waterschoot. I think the Minister will explain this immediately.

Mr. Speaker, colleagues, I refer in the first place to the report because the issues now discussed have already been discussed extensively in the committee, on the basis of the amendments submitted. The debate on this was held.

In fact, a original methodology has been developed here for those situations of piracy. Piracy is a new phenomenon in which we are facing a gap. With this legislation we create opportunities to respond to them, especially since we are also involved in European missions such as Atalanta. However, it can also occur in other circumstances than the Somali. Hence the initiative that has led to a coherent, double law. She is useful, good and original in the sense that she also allows to respond in a very accurate, direct way.

Indeed, the federal prosecutor has the power to decide, on the basis of a number of criteria, where the case should be brought. If there are Belgian victims, if it is essential for Belgian interests, he will of course fight to prevent the case in Belgium. That is obvious.

However, it may also be possible to decide, on the basis of concrete elements of the file and as appropriate, that it will be handled by the jurisdiction of the flag State of the ship, or that it will be handled by the jurisdiction of which the perpetrator is a national, or by a jurisdiction of a third state, and so on. He has certain possibilities. He can develop a specific strategy based on the concrete data of the file, which can be very different.

It is the obvious priority of the federal prosecutor, if Belgian interests are affected or if there are Belgian victims, to bring the file to Belgium if possible.

The problem that colleague Landuyt talked about, the so-called subordination of the victims, seems to me not correct. Every victim, of course, has every opportunity to file a complaint, to turn to the Court of Justice, to say to the prosecutor’s office and especially to the federal prosecutor: “There is a problem!” Also family members, and others, can turn to the federal prosecutor.

In short, the federal prosecutor can be caught, can be motivated, can get all files, can get all elements. The case can be followed by him, up to and forth. The only thing that is said is that the civil party-position – which is classic in such files – must be postponed until the moment a decision is made.

The right is not deprived, there is only an element of timing. The civil party statements – which are typically made before the investigative judge – are here by Article 5 only admissible after the decision of the federal prosecutor. That is not the deprivation of the right, only a certain timing is set, to allow the federal prosecutor to develop his strategy in the interest of the whole case. If he has developed his strategy in these international files, the injured person can develop his civil party attitude.

Therefore, the possibilities remain unshaken for all victims to turn to justice, not only to file a complaint, but also to become a civil party. This has already been answered in the committee. I repeat this. I think it is right to assert that no right is deprived of victims who wish to appeal to justice.

A question to the Minister for the report.

What does a civil party do if the federal prosecutor decides not to initiate criminal prosecution?

There is still the possibility of becoming a civil party. The Federal Prosecutor’s Office then made a decision. I quote: "Civil Party statements are only admissible after the decision of the federal prosecutor to carry out the criminal action." If he has chosen a direction in some way, a civil party position may occur.

I think the logic is very correct and very correctly developed. I think this is a good law and that these amendments are best rejected.

If I can conclude my general intervention immediately, Mr. Speaker, I would like to immediately thank my employees who have been waiting here for 12 hours for the discussion of this bill. They followed this very carefully and I want to thank them for their presence.

(The applause)

Shortly before the report.

Mr. Minister, how do you see a civil party position when there is no criminal action? According to this text, the prosecutor is the only one who can decide whether or not there is a criminal action. Can you point out to me situations in our law in which someone can make a civil party without a criminal action?

No to? So I think you should stop telling things that are not right at all. You are telling the colleagues and above all the people here that you give them the right to stand as a civil party while you first have the door closed by the federal prosecutor. The rest is not serious. I advise you to re-read your criminal lawsuit course from before.