Proposition 53K0041

Projet de loi modifiant le titre préliminaire du Code de procédure pénale en ce qui concerne les nullités.

General information ¶

Author

Vooruit Renaat Landuyt

Submission date

July 29, 2010

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

criminal procedure

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP Open Vld LDD MR

Abstained from voting

Groen Ecolo

Party dissidents ¶

• Bernard Clerfayt (MR) voted to adopt.
• Peter Luykx (CD&V) voted to adopt.
• Olivier Maingain (MR) voted to adopt.
• Damien Thiéry (MR) voted to adopt.

Contact form ¶

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Discussion ¶

Jan. 10, 2013 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mrs. Minister, colleagues, the Justice Committee discussed these bills during the meetings of 30 November 2010, 24 April 2012, 8 May 2012, 5 June 2012, 12 June 2012 and 11 December 2012.

During the meetings of 5 and 12 June 2012, the committee held hearings. A number of prominent speakers spoke, including the first chairman of the Court of Cassation, the chairman of the Court of Appeal in Brussels, Ms. Massart, counsel of the Court of Appeal in Brussels, Mr. Damien Vandermeersch, Attorney General at the Court of Cassation, Mr. Bart De Smet, Deputy Attorney General at the Court of Appeal in Antwerp, Mr. Karel van Cauwenberghe, President of the Association of Investigative Judges, Mr. Pierre Monville, representative of the OBFG, and finally Mr. John Maes, representative of the OJB.

I will briefly discuss the contents of the initial texts of the two submitted proposals. First was the proposal submitted by colleague Landuyt, in which he proposed to apply the sanction of invalidity in the criminal proceedings, as in the civil proceedings, only if there is a concrete injury to interests. Furthermore, the bill stipulated that the sanction of invalidity in criminal proceedings can only be applied if the law has explicitly imposed that invalidity.

Then there was the bill of myself and colleague Sabien Lahaye-Battheu. That proposal stipulated that the automatic exclusion of evidence cannot be applied if there is an unlawfully obtained evidence in a criminal case. In the absence of a legal arrangement, it would be the court that would decide, taking into account, inter alia, the consequences of the irregularity, in the light of the concrete circumstances and the interests in the case.

In our bill we have proposed three possible sanctions, in particular reduction of the penalty, exclusion of evidence or inadmissibility of the criminal action.

Following the hearings and thorough deliberations, a majority amendment was finally reached, which was submitted and approved in the committee on Tuesday 11 December 2012.

The finally adopted text effectively provides for the registration of the Antigoon Law Doctrine, as it is commonly called in the legislation. Where in our law there are investigative courts that check purification and nullity, the regulation in this regard is established by law. However, when a judgment court has to decide on the legality, the system created by the Court of Cassation is applied.

This judiciary has evolved over the years. Nowadays there is no longer a pure exclusion of evidence. From systematic proof exclusion we have evolved to proof exclusion as the exception.

In the renowned Antigoon Arrest, the Court of Cassation ruled that irregularly obtained evidence leads to exclusion of evidence only in three cases, first, when the observance of a certain formal condition is required on penalty of nullity; second, when the irregularity committed has compromised the reliability of the evidence and, third, when the use of the evidence would be contrary to the right to a fair trial.

These are just the three criteria that will be entered into the law.

Some will rise up and have risen that that step is not going far enough. However, it is effectively a significant step forward in terms of clarity and legal certainty. From time to time, the Court of Cassation must remind the lower courts of what is stipulated in the Antigoon Law doctrine. In the future, the new regulations will at least be clear and give rise to greater legal certainty.

Colleagues, on my own behalf and on behalf of my group, I can add that we would have preferred approving a further text. In any case, it is a first step in the right direction to bring justice and justice shorter together. We will therefore support and approve the present text.

Mr. Speaker, colleagues, I refer to the written report and to the oral report submitted by colleague Van Cauter. I will limit myself to a few substantive remarks on behalf of our group.

The headlines of the newspapers did not lie this morning: “Remission after procedural errors is restricted.”

Colleague Landuyt, I must congratulate you for having masterfully played the media, as we know them. You’ve once knocked yourself on your chest and said, “Look what we’ve done now, isn’t that fantastic?” There were, of course, immediate reactions, probably from people who had not yet read what it was about. After all, you said, “Look, we are addressing the procedural errors.” However, I can only congratulate you on that media moment, colleague Landuyt, and not so much on the bill itself.

Because, colleagues, the appearance is deceiving. In reality, there is no powerful solution that addresses procedural errors, not at all. It is, as colleague Van Hecke said during the discussions in the committee, “an empty box with a very large strap around.” I cannot say it better.

What is it about? We all know the problem. When perpetrators, certain of proven facts, ultimately are not prosecuted because there were procedural errors, or errors in the provision of evidence, there is always commotion. No one is happy with that. It is a difficult problem that requires a balance between, on the one hand, effective prosecution and punishment and, on the other hand, the collection of evidence, the rules for it and the relevant sanctions. Police and investigative judges must respect the rules. We live in order in a rule of law.

Colleagues, this extensive problem touches the heart of our judicial system and therefore deserves a thorough debate. I miss this thorough discussion here. I lack a clear vision. You know that the great law-Franchimont has been on the table for years, but that nothing is done about it. Work has been done, the texts are ready, but nothing happens. However, there were these two bills from amongst others colleagues Landuyt and Van Cauter. We held hearings and the State Council issued opinions, but this shows that the Council is quite rejecting the proposals submitted.

In order to avoid the whole problem being re-referred to the Greek calendar, and to be able to say that one was working on it, ⁇ in view of that media moment, a final amendment has been submitted in which nothing more or less has been done than to pour into a law text the Antigoon judgment, a fixed judgment that has evolved further since 2003.

There is no doubt that there are many good intentions behind it, and it may provide a backbone to the judges, but in practice little or nothing will change and this bill has no added value. It has the merit of being there, despite all the good intentions.

Colleagues, this majority always has a mouth full of major reforms, including in the judiciary. Big words are used and big announcements are made, but when it comes to it, like today, there’s actually just a little rumble in the margin. This is a missed opportunity.

If you really want to change something, take the great Franchimont back. If that is too difficult, no longer adequate or no longer appropriate, let us start with the highly needed new Code of Criminal Procedure. Attacking to the rules of nullity only makes sense if one also reforms the criminal procedure law. Call a government commissioner and set up a committee, it doesn’t matter to me. Of course, this will take a lot of work and time, but properly legislative work takes time and should not be limited to flashlight policy and great announcements. Legislative work must be done in the long term, because one needs to think about it.

Minister Turtelboom wrote the reform of the criminal proceedings in its policy note, but let us be honest: until now it still shines out in vagueness. However, we will not escape it, because soon there will be the European Salduz Directive that will have a huge impact on our process law. We will have to do that work. I therefore call on the members of this Chamber once again, with the words of Mr Van Biesen: "Do not wait, do not talk, do."

Let’s start with a new Code of Criminal Procedure, with – and that is very important – transparent and clear rules. It is not about setting rules before, between and after everywhere; there must be clear and transparent rules and thus the risk of procedural errors could easily be reduced.

Concerning this proposal, I would like to specifically add the following elements. We have already held the discussion in the committee, but here, in the form of compromise between the majority parties, the Antigoon jurisprudence is simply incorporated into legislation. That in itself is not bad. Hearing sessions were held on this subject. Look at the reporting. Among other things, the Chairman of the Court of Cassation was asked whether it makes sense to transpose that Antigoon judgment into legislation because the rest of the proposals proved to be useless. He actually picked up his shoulders and said that this could provide a hostage, but that we should definitely do this well-consideredly. This had to be done carefully and we had to seek advice from specialists. However, you did not want to do that, dear people of the majority. It had to go quickly, because one had to have its media moment. Therefore, they have no longer wanted to consult those specialists on a completely amended proposal. In other areas, they also refused to listen to what was said during those hearings. There were also some technical issues. Cassation has very clearly developed a jurisprudence with a number of criteria. There are three main criteria and a number of subcriteria. It is very important that it has been said that if one wanted to incorporate that jurisprudence one had to take everything, the global package.

You did not do that and only three subcriteria were retained. If one is not fully committed to something, then one is better off. In this regard, it should not have been started and it should have been left the judiciary as it is.

Why are these criteria important? Without the inclusion of all necessary criteria as developed in the case-law, there is a distinction between evidence obtained for Belgian authorities and evidence obtained abroad. In fact, there is the 2004 law relating to mutual legal assistance, which included everything. There is also a different terminology. So now there is a nuance difference, with the risk of violating the principle of equality. It was not the intention of the proposers of the amendment to create problems, I think.

In translating the Antigoon jurisprudence into legislation, one had to first make an inventory of what was prescribed on punishment of invalidity. However, it had to be done quickly and they did not want to do so. However, this topic deserves a thorough debate, but it was not intended to be carried out.

Colleagues, do not believe the headlines from the newspapers, because the solution now proposed is not comprehensive. It concerns only the irregularity in the provision of evidence, but still does not solve anything in the area of judicial proceedings. Therefore, only one part is addressed and the solution is by no means complete.

Colleagues Landuyt and others, you are proposing here a political compromise, undoubtedly with many good intentions, which may provide a hoverboard to the court, but that in practice will change nothing — the jurisprudence was already there. It does not provide a comprehensive solution and advice is ignored. One even scares possible advice from specialists, because there could be comments. You’ve had your media moment now and that’s what it remains.

I fear that there will be no release now more or less due to procedural errors since this has been poured into a legislative text. This remains a missed opportunity. This is, colleague Van Hecke, an empty box with a very large strap around. It may not harm, but it will ⁇ not benefit. Our group will therefore abstain from voting.

I will speak from my bank.

I would like to confirm that what is now emerging is, in fact, simply the downfall of the jurisprudence that the Court of Cassation has built up. This jurisprudence is now incorporated into the legislative framework.

Initially, the proposal of colleague Landuyt was presented, which also included a number of new concepts. However, after the hearings that we held and after the discussions that were held, we have taken the jurisprudence into a bill, which provides greater legal certainty and what, according to the professors, in the hearings was also proposed as a minimum change.

If we want to go deeper into the nullities, then the present proposal is therefore only a very small element. We must fundamentally further reflect on how to deal with a concept as substantial nullities. It is not just about irregularities in the proof-making process. So I think we still have a lot of work to do.

This morning, there was indeed a lot of commotion about the proposal presented today. Everyone could read in the newspaper or hear on the radio that from today the police services are allowed to make procedural errors in the meat and that all this could happen without any risk of sanction by Justice. For example, illegal home searches could be carried out on the ongoing band. This is of course absolutely incorrect.

I was also surprised to hear that, because there were some criminal prosecutors who are always quick to comment on what is happening. These prosecutors can also be called prosecutors. I find their statements surprising, because they are still lawyers who are not known as if they would normally advocate without knowledge of the dossier. However, this time they were wrong. I think they were inspired by the original text of Mr Landuyt, but did not notice that the committee reformed Mr Landuyt’s original proposal quite thoroughly. Therefore, they misunderstood the text.

What the present text aims at is to define the case-law of the Court of Cassation in legislation. Not more, not less. At least, that was the intention. Let us look at what the case-law of the Court of Cassation exactly means. It is about the famous Antigoon jurisprudence, which represents three main criteria and in which six subcriteria were also developed. The majority parties have registered the three main criteria in the law and the six subcriteria are not discussed; they are not added to the law. Now the majority says they have imposed a fantastic law.

In practice, nothing will change. One simply clicks a fixed jurisprudence of the Court of Cassation in a law. There is a lot of paper and time wasted in the commission, nothing else. It is a large box with a very large red strap around. Mr Landuyt is pleased with this. He can show it in the press. His bill was approved. Criminal prosecutors see a huge change that has not come out of itself. There is a lot of commotion for nothing. It is a big storm in a glass of water. We will therefore vote against.

Mr. Speaker, colleagues, the nullities in the criminal procedure law have long remained in an absolute flou artistique. There were and still are no clear uniform rules. The Court of Cassation eventually intervened meritoriously by creating some clarity through judicial practice. This happened through the so-called Antigoon arrest. However, that was not sufficient. Every normal-thinking person reacts frustrated and disappointed and even angry when a criminal is released or acquitted on the basis of what is called “procedural errors.”

I can still remember the images of a distracted then-minister Jo Vandeurzen when it turned out that the killer of Kitty Van Nieuwenhuyzen egg was released afterwards. Only with a legal “trick of the foor” was it possible to keep him in prison for a while. There are almost monthly numerous other, heavenly examples of acquittal or release of a guilty on the basis of procedural errors.

Honourably, colleague Landuyt, followed by the Ladies Van Cauter and Lahaye-Batteu, has submitted one after the other bill to incorporate the prevention and repair of invalidities in the criminal procedure law into legal rules. Personally, I was a little more fascinated by the Landuyt bill, without compromising the Van Cauter - Lahaye-Batteu bill.

Collega Landuyt, Willem Elsschot wrote that between dream and deed are laws and practical objections. If I can parafrase: between a parliamentary legislative initiative and a final legislative text, political compromises stand in the way, and in this case also the State Council.

We have nothing against the State Council and nothing against honest political compromises, but as members of the opposition, we do not have to plunge for them.

We appreciate the out-of-the-box thinking, as this has happened in the original bills. We were therefore disappointed when it turned out that the amendment to the original bill concerns the mere takeover of the current cassation court. This jurisprudence of the highest jurisdiction, with which the legal world is ⁇ familiar, is now cast into a law. That is of course easy. On this basis, political compromises can be found, but simply entering judicial practice into a law makes parliamentary work quickly superfluous. However, this is not exactly the case, because this does not mean that nothing changes. In fact, the courts and courts see the precedents of the Court of Cassation become law and they must now, on the basis of the law, compelledly focus on what they previously could apply optional.

Everything the Court of Cassation gave them is now cast into a law and this will prevent a number of incidents. I am convinced of this. Courts and courts can no longer afford certain foliets and fantasies. Keep in mind, however, that the solution offered by the Court of Cassation through jurisprudence does not provide a solution for most cases of nullity. We can be grateful for the case-law of the Court of Cassation, but this is not the ultimate solution. If one incorporates this into a law, not everything concerning nullities is resolved. Forget the illusion of the day, forget the talk that some lawyers and prosecutors have raised in the media today. This, of course, does not save anything.

The original proposal-Landuyt was better, sharper and more efficient than the current text and the current case-law of the Court of Cassation. The original proposal was based on the fact that nullity can only play when a legal form requirement is ignored – those legal forms are once needed – or when interest damage can be demonstrated. This also applies in civil law. Collega Landuyt has intended to transplant a technique from the civil law into the criminal procedure law in order to be able to come somewhat easier there to an assessment of a dispute about a possible procedural error and about whether the investigation was hindered by this. If someone, a suspect, believes that he has been harmed in his rights of defence, then he will have to prove this in some way. In criminal procedure law, the courts are also often assisted in this, which can impose remedies on their own. Fundamental rights were therefore not at all ignored in the original proposal. That was a good proposal for us.

We present it in the form of three amendments. We do not have the habit of doing this often, but today we do. Mr Landuyt will be pleased. He will have to be happy, because he understands that with this he receives more than support from us. We will submit the amendments. If they are not accepted, we will refrain from the text presented today, for it is not sufficient. It is going in the right direction, but it is not enough.

Mr. Speaker, Mrs. Minister, dear colleagues, the bill that is being discussed today fits in the struggle against a formalism that no longer has anything to do with justice. The original proposal continued and I am very pleased. My proposal was and is to make the same operation of years ago from civil law into criminal law: if there is a formal requirement, then it is annulled if it is expressly stated in a law, additional if there is also an express and specific interest injury.

After the hearings, several experts have said that this practice in criminal law is not easy. It would be the ideal situation to do so, but that implies that one has a clear overview of all the essential nullities that exist, and also of the fact that in the jurisprudence, in practice, not by the legislator but by the judges, in good faith, various nullities have been created or different formalisms have been sanctioned in this way.

So they say, if one really wants to take a step in the direction that I like too, especially the direction of less formalism and more justice, that one must then strengthen the line of the existing judicial practice. It should also take into account what the European Court of Human Rights assesses now and then.

Therefore, if one wants to ⁇ a balance between, on the one hand, obviously necessary or formal regulations for the defense of human rights and, on the other hand, the ambition to create a safe community by enabling a good policy of prosecution, prosecution and punishment, then one must use the criteria that were created at the end of the ride each time. Put it at the beginning of the ride and use, therefore, an old, well-known technique: give a certain state of affairs, once one has legally drawn up through practice, after releases, force of law, thus the next step is that each judge must align itself even more with the criteria created in the law.

What happens here is a small step for a legal scholar, but a big step for justice.

I predict to you that in practice it will become a little harder for judges to pretend that the legislator has desired some sort of nullity. Today’s legislature’s message is: make every effort to identify errors in the research, but make sure that one can still make the maximum use of the work delivered. In other words, through another path, we are one step closer to the reasoning that one must actually look at a formalism in concrete.

In that sense, I am confident that the three criteria, which are not followed everywhere in our courts and which are continually contested in the procedures, become lawful and can no longer be ignored.

Whenever a judge finds a mistake in the investigation, he must check in the law whether the non-compliance with that formalism leads to the nullity. If that is the case, he must declare invalid. If that is not the case, he must follow a second reasoning, in particular whether the non-compliance with that formalism affects the credibility of evidence. If that is the case, he must declare invalid. If this is not the case, the process will continue.

We also ask the judges to check whether the formalism that has not been observed is of such a nature that the further course of the process would no longer be fair and to intervene if necessary. This is what the European Court of Human Rights says. In other words, now it is clear to every judge that he should not simply be seduced by the formalism of some well-inspired lawyer.

I thank my colleagues for their support.

The present bill is a framework for a good interaction between the legislative and judicial authorities. Through the proposal, the principles of the Antigoon Judiciary are now anchored in the law.

I think it is a good first step to ensure that certain procedural errors do not more or less spread.

After the hearings, several speakers-experts have said that it is good to include the Antigoon criteria in legislation. I think the bill is a first step in the right direction.