Proposition 53K1279

Projet de loi modifiant le Code d'instruction criminelle et la loi du 20 juillet 1990 relative à la détention préventive afin de conférer des droits, dont celui de consulter un avocat et d'être assistée par lui, à toute personne auditionnée et à toute personne privée de liberté.

General information ¶

Submitted by

The Senate

Submission date

Jan. 26, 2011

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

European Court of Human Rights lawyer judicial inquiry rights of the defence criminal procedure detention before trial

Voting ¶

Voted to adopt

CD&V LE Open Vld N-VA MR

Voted to reject

Vooruit VB

Abstained from voting

Groen Ecolo PS | SP

Party dissidents ¶

• André Frédéric (PS | SP) voted to adopt.
• Olivier Maingain (MR) voted to adopt.

Contact form ¶

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Discussion ¶

June 15, 2011 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mr. Minister, Ladies and Gentlemen, the Justice Committee has met a long four-time session to discuss this text, which was transmitted to it by the Senate.

Our commission organized hearings during which the bars (OVB, OBFG), bodies heads of local police and federal police, judicial directors and those who could tell us about an experience on the ground concerning the presence of a lawyer, problematic that is called "Salduz", named after this Turkish convict who proceeded before the European Court of Human Rights, Court which, in a judgment of 27 November 2008, said the following. I quote it in summary: “Even though the applicant had the opportunity to challenge the evidence at his trial in first instance and then in appeal, the impossibility for him to be assisted by a lawyer while he was in custody has irreparably damaged his rights of defence.” This is obviously where the bottom line of the problem lies with the assistance of a lawyer during the first period of deprivation of liberty, which is sometimes called a guard. During this period, a person is ⁇ vulnerable. Therefore, it is necessary to provide for the necessary safeguards so that their rights to defend themselves are not irreparably violated.

The Minister of Justice recalled before the committee the content of the text adopted by the Senate. He pointed out that the principles of the judgment of the European Court of Justice arising from its case-law must obviously be implemented within the framework of existing Belgian legislation. He added that it is necessary to find an operational solution, in particular for the prosecutor’s office and the police services, and that the proposals must be able to be developed within a budgetary framework that is what it is and that must remain manageable. The jurisprudence is still evolving and will have to be subject to constant monitoring, he will remind us. In the current state of jurisprudence, however, the draft perfectly meets the requirements of the European Court of Justice.

I will pinch out not all the elements but those that are ⁇ the newest compared to what we know in our current judicial system.

First, a point concerning the declaration of rights, called the letter of rights. It is a draft law that links to the ongoing negotiations at EU level on a directive on the information of persons affected by a criminal procedure. We will not wait for the final text; we anticipate and advance the communication of rights by means of this letter of rights which is notified to the person concerned.

The principle of lawyer assistance is retained before the first hearing concerning offences that can be attributed to a person, the accused. The accused has the right to a confidential consultation with a lawyer.

As recommended by the Supreme Council of Justice, prior consultation is considered a priority condition. This right applies, in principle, to all accused persons, whether or not they have been arrested. The Senate hearings, however, highlighted the need for men and women on the ground to introduce a certain threshold in order to lead to operational and effective rules that remain financially viable. The text therefore provides that the offences that can give rise to the issuance of an arrest warrant will be retained and among them, only those punishable by a prison sentence of one year or more. This threshold has various advantages and is consistent with Salduz case-law.

The text submitted by the Senate provides for a second restriction regarding the exclusion of the litigation in matters of rolling. Indeed, it appeared that if one had to provide for the assistance of a lawyer for each prevention of rolling, one would quickly be overwhelmed since there is a question of 426 000 traffic accident findings per year. You can imagine that it would be impossible to foresee, for all of these cases, the presence of a counsel with the persons concerned.

The text also provides that the consultation of the lawyer is confidential and prior when the person has not been arrested. Furthermore, in this hypothesis, the text provides that this right of consultation may be voluntarily and deliberately waived, unless the person is a minor. Therefore, it is deprivation of liberty that gives access to another right, beyond confidential and prior consultation, namely assistance during the interrogation.

The assistance of the lawyer is part of the hearing whose objective is the search for the truth. In this regard, the respective tasks and roles of the relevant actors, in particular the police services, should be taken into account. In fact, it is the police services that ask questions to which the accused responds. The purpose of the assistance of the lawyer is to enable the control of the observance of the right of the questioned person not to accuse himself and of his freedom to keep silence. The lawyer will also have the task of controlling the treatment that is reserved for the person during the hearing, in particular in order to avoid the manifest exercise of unlawful pressures or coercion by the police, the rights referred to in article 47bis of the Code of Criminal Investigation. On this occasion, he will be able to make observations without yet being able to advocate.

It may be active there to a certain extent but in the clearly delimited purpose that I have just mentioned. All this must be able to be part of the purpose of the hearing and of all the principles governing our criminal proceedings and, in particular, the preliminary investigation. The text therefore seeks to reconcile these concerns, namely, on the one hand, the effectiveness of the investigation and, on the other hand, the rights of defence.

Where hearings are conducted in violation of the rights newly incorporated in the text of Article 47bis, § 6, the text provides that such hearings may not be used either exclusively or decisively for the purpose of a conviction.

One element that has generated a lot of questions in the Senate and which has also been re-discussed within our committee is that of the 24-hour detention period which is a constitutional deadline. Compared to the new rights that will be implemented, it is clear that the 24-hour deadline will very often be difficult to comply with. This deadline will be hardly sustainable. In this hypothesis, the investigation judge who is faced with serious indications of guilt in a crime or a crime or with special circumstances left to his judgment may issue a motivated order of extension which cannot itself exceed the period of 24 hours referred to in Article 12 of the Constitution.

Finally, the right to be assisted by a lawyer exists during the interrogation carried out by the investigating judge under Article 16 of the Preventive Detention Act.

The arrested person will have the opportunity to inform a trusted person of his choice of detention and will also have the right to medical assistance.

These are the main features of the text, as transmitted to us by the Senate. Following the hearings and the general discussion that was initiated among the Commissioners, we found it necessary to collect the opinion of the State Council, which was filed on 19 April 2011. After submitting this opinion to the State Council, the discussion resumed. My colleague, Renaat Landuyt, co-rapporteur, will intervene on this subject.

I will not read the rest of the report. I would like to outline what the discussions were about. To make my sketch, I had a huge support for what the Minister of Justice said in the report. He gave a summary of what the State Council believed to have to say. On that basis we were able to hold an orderly discussion about whether or not to change the text as that of the Senate came.

First, it should be emphasized that the State Council saw no constitutional objection to the extension of the detention period at all. He also had no problem with the fact that nothing new was arranged regarding access to the criminal file, because that is not a European point today.

According to the State Council, there could be discussions on five areas.

First, as regards the scope, and whether or not to limit the right of consultation and the right to assistance, the State Council has made a number of observations. At the end of the debate, a majority in the committee took over the situation of the contest composition. She thinks that a lawyer should be there. This is stated in the new text.

Second, as regards the definition and scope of ‘assistance’ – in particular the definition of ‘first interrogation’ and the definition of ‘interrogation’ – no majority position was reached in the committee. In this regard, I refer to the discussion texts in the report. The text that came from the Senate has not been amended on this point.

Third, however, the committee responded to the comments on the sanction in case of non-compliance with situations relating to the right of consultation or the right of assistance. At this point, a new text was approved by a majority in the committee.

Fourth, as regards the possibility of renunciation of the right of consultation or assistance by a minor, the committee has fully followed the State Council. The possibility of distance was excluded for minors.

Fifth, also on the point relating to the secrecy of the investigation and the implications of the right of assistance, a supplementary text was approved by the majority in the committee. That was my brief summary of a very good report, which I had the opportunity to write together with colleague Brotcorne. I recommend everyone to read it, especially my presentations, but I will keep them for later.

The Salduzarrest of the European Court of Human Rights must have become one of the most discussed judgments. In the meantime, there is even a salduzleer. There are both for and against, but whether one wants or not, it is actually irrelevant whether one is pro or against this judgment, because at the end of the day that judgment remains and Europe calls for the assistance of a lawyer.

Colleagues, you know that Belgium has already been warned by Europe, because we still have no legal arrangement. A condemnation is hanging in the air, the more now that even Balines have called to repeatedly highlight the lack of assistance and to initiate procedures around it. You also know that it was not a one-off decision of Europe. Currently, there are almost 90 arrests. Many countries, including the Netherlands and France, are working on adapting the legislation. This is not just about countries like Turkey or Russia.

What can we do? We can stand on the side. We can ignore that. That is not a single problem. We can continue to say that this goes too far, that this cannot be done, that it creates too many rights for criminals and that Europe would have gone beyond its booklet, but then we must be aware that the chance of acquittal of data subjects who were interrogated without assistance increases day by day, even if we know that the data subjects have done it effectively. The chance of free speech is increasing with the day.

In addition to this, the practice in this case has been the legislature and that the various bars, in cooperation with the investigative judges, have already sought solutions and organized themselves, with the result that each district has found its own arrangement. There is no homogeneity. It is not an optimal solution and it can be a source for new discussions.

Friends or enemies of Salduz, we have no choice. We had to do something, and quickly, to avoid condemnation. I am also pleased that a compromise came out of the bus. It was designed in the Senate and forwarded to us, and it was submitted by us to the State Council. After inspection by the State Council, it was found that there were not too many fundamental problems.

The problems that were there, we tried to work out with amendments.

Certainly, the State Council also says that the legislation will still be subject to evolution in the jurisprudence. So we still have to wait. That is annoying. We still do not know exactly which game we play in. This demonstrates the need for an evaluation of this legislation.

The N-VA therefore strongly insists on this, especially because a difficult task awaits the practice. We need to check and follow if the practice will be able to handle all of this.

Colleagues, in this proposal we could choose between a maximalist or a minimalist vision. We have chosen the path of minimalism. We have sought a balance between what was practically possible and what the case-law of the European Court of Justice has required of us. It makes a distinction between who is suspected or not, who is detained or not, and according to the seriousness of the facts.

For a better understanding of this legislation, I would like to give a few more points, because there are a lot of misunderstandings about it. I would like to emphasize very clearly that this scheme and this assistance does not apply to everyone.

I have already said that there is a distinction between suspect or non-suspect and detained or unarrested. This is not always the case, only at the first hearing. It is not the case that at every hearing a lawyer will have to appoint.

It is also not intended that the lawyer will answer in the place of the suspect. He must oversee the interrogation and check whether or not this is done under pressure, whether or not one accuses himself and whether all rights are respected. Not more, but also not less.

There is still the possibility of distancing. There is also the possibility to derogate from this guarantee in very serious situations, such as in terrorism cases.

A second aspect, more rights also require more time, is that the detention under this guarantee can be extended to 24 hours. Some will say that this is unconstitutional. We feel strengthened with this bill by the opinion of the Council of State, which said that this can be done.

Finally, a very sensitive point, there is the sanction. There has been a whole debate on this. Does the evidence value disappear, yes or no?

I simply want to emphasize that it is not the intention of the legislator that any evidence value of the interrogation will be lost only when a declaration has been made without assistance and only in relation to that person will not be able to serve for the conviction. In all other cases, this can be ⁇ ined.

It is very important that the Antigoon Court of Cassation, which is applicable anyway, will continue to play. Therefore, all evidence will not per definition disappear.

Colleagues, friends and enemies of Salduz, we are aware that this legislation will go too far for some and not far enough for some, but the knot had to be cut through and we did.

The legislation is here now. The practice now has a guidance and cannot simply make sense, as has happened to this day. Let us hope that in this way a condemnation of Belgium and especially an acquittal of perpetrators in the future can be avoided. We will support this.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. Much could be said and debated about the influence, the impact, the quasi-legislative character today of the jurisprudence of European and international courts, but unless we question the European or international treaties themselves, these judgments impose on us.

This is especially true because our courts and courts, including the Court of Cassation, undergo this influence, host these judgments but sometimes in very different ways. Thus, it was necessary, if not urgently, to provide itself with legislation integrating the Salduz judgment and its consequences. The text submitted to us is important in this regard.

Moreover, unusual and therefore remarkable, initiatives in various judicial districts and not the least have seen the day of lege ferenda, associating in one movement or almost the sitting magistrates, the standing magistrates, the lawyers and even, in some districts, the police services – we have heard.

Undoubtedly, we must therefore legislate, the Socialist group is fully aware of this and its vote will take this into account. But if the Parliament must act, it is of course in compliance with this Salduz jurisprudence – otherwise, it would be absurd – because without it, the current legal insecurity, which, I remind everyone, leads to non-locals or acquittals in sometimes serious criminal files, this legal insecurity will continue and will remain detrimental to the rule of law in Belgium in its principle but also detrimental to the perception of justice by the citizen, by all citizens.

First, I do not have the impression that the text from our committee achieves this goal of cutting off any dispute, any legal uncertainty and I have the impression that my colleague Mrs. De Wit has just said exactly the same thing.

Secondly, at no time, on any subject, the European Court of Human Rights does not want or intend to lead a country to restrict the individual rights and freedoms of the citizen, which would obviously be absurd. However, this is, in our view, paradoxically, the consequence of the proposed text.

Thirdly, finally, the authors of the text do not seem to me to have reached the end of the reasoning proposed by the Salduz jurisprudence on certain points, somehow as if it burned their fingers.

Some in the committee, and still today in the plenary session, have called the text an evolving one. This is very good, except that here we talk about criminal records, crime, criminal proceedings but also freedoms, individual rights, protection against arbitrariness. Apologize for a little.

Legal uncertainty, restriction of fundamental freedoms and unfinished work are, in my opinion, the major shortcomings of this text. I explain it quickly.

First of all, I believe that the text comes from a minimalist view of the role of the lawyer. It’s a choice, but it doesn’t suit me. In fact, this text ultimately contains a completely artificial subdivision considering that there are, at certain times, persons who are interrogated by the police as witnesses, persons interrogated by the police as suspects and persons interrogated by the police in detention. Ultimately, if the authors of the text have retained this subdivision, it is because they want to reduce the role of the lawyer. Because finally, when you know the reality of the field, everyone realizes that a person can, in very short time, find himself in the three situations that I just indicated: being heard as a witness, a suspect and then deprived of liberty. This is the reality in our offices.

Now what is the basis of the Salduz judgment other than the avoidance of statements which can be founded on a conviction without the assistance of an attorney, that is, without control not of statements but of the conditions under which those statements are collected? Who can tell when and under what conditions such statements will be made? In each of these three phases, everything is possible.

What’s more, not only is this subdivision perfectly artificial, but we put our own police services in an unthinkable situation: we put on their shoulders the responsibility to determine at what stage of the law, as long as this text becomes law, they are exactly. They themselves confessed to us not having the training to decide and not wanting to take those responsibilities.

So we are making a mistake. Moreover, we have a poor appreciation of the role of the lawyer, first on the principle, then in the text of the law, giving him a ⁇ passive role while we could have engaged more. I think it is a mistake!

If I dare to say this, it is that the field experiments conducted in the various arrondissements of which I spoke just recently, where experiments are ongoing, demonstrate that the role of the lawyer is quite positive in the evolution of a case. Rather than delaying information or instruction, this intervention only improves things, or even puts oil in the rows.

Therefore, the starting idea of the text, which was to take a minimalist position and consider the role of the lawyer as annoying and moratorium, is false. Reality gives me right now.

Still within the framework of the minimalist vision, I believe that this text can sin by discrimination. I think in particular of the traffic offences rejected by the text. I hear well what the rapporteur said earlier and I understand of course the practical difficulties. However, by refusing to cover all the infringements, we expose ourselves to legal insecurity, and consequently, to have to rework this text. In the meantime, there will ⁇ be non-places or acquittals that many citizens, and ⁇ some of you, will find ⁇ unpleasant and, in some ways, scandalous.

The second aspect of this text is problematic. This is the problem of the sanction for non-compliance with the presence of the lawyer at the hearings. Again, the authors of the text show an obvious and detrimental frilosity. This is a mistake in relation to the case-law of the European Court of Human Rights and the opinion of the State Council that we have.

By reviewing this case-law of the European Court of Human Rights, it is clear that there can be no conviction by using statements made in violation of the judgment in Salduz, that is, without the presence of the lawyer, as well as on the basis of the documents resulting from these statements made in the absence of the lawyer. This seems to me to be written black on white in the judgment Salduz, in the judgments resulting from it, but also in the opinion of the State Council. I believe that this "promises us beautiful days", if I can afford to express myself, in such a crucial matter. Again, let us never lose sight of the very difficult relationship that citizens have with justice. On this issue of punishment for non-compliance, the text is obviously insufficient. Therefore, we are submitting an amendment in this regard.

The third problem lies in the 24-hour retention period. Currently, according to our Constitution, any detention beyond 24 hours requires an arrest warrant issued by an independent judge, i.e. the investigative judge. This is a constitutional guarantee.

Whether we like it or not, whether we agree or not with this Constitution, this text exists and is, in my opinion, fundamental in terms of individual freedoms.

No one can reasonably claim that this text creates insurmountable problems in the level of our criminal proceedings, the functioning of our police services or the functioning of our judicial institutions, whatever they are (instructional judges, etc.). No one can reasonably say that Belgium, with a 24-hour detention period, is a country where repression and the criminal aspect of things are neglected, if one makes a comparison with countries around us that have other legislations such as France where the detention period is 48 hours. At no time can anyone claim that we are less efficient in criminal justice than other countries, quite the opposite. It is therefore a fundamental downturn in individual freedoms – I think in particular of the freedom to go and come – which, along with others, constitute the foundation of democracies worthy of that name.

Certainly, the text provides for a new motivated order of an investigative judge. But this order does not compromise all the other guarantees provided for in our Code of Criminal Investigation, such as the intervention, within a certain period, of the Chamber of Councils.

So I come to the last difficult issue I wanted to address, namely the budgetary aspect. This latter is obviously not taken back in the text, but it has long been mentioned; the actuality reminds you regularly, Mr. Minister. I think of the additional expenses that will have to be incurred in the field of justice and, in particular, in the field of legal assistance, but also those related to the organization of police services and the overtime that may have to be provided.

It must be said, like all the groups here present, we insist that this legislation can be applied purely and fully and that it is not financial problems that prevent it from being properly applied.

In order not to prolong the debate, I will obviously not cite all the other amendments we have submitted in committee on a whole series of other issues. I am referring to the report and the amendments.

Before concluding, I would like to say another word that, in my opinion, still demonstrates that frilosity, quite curious in the end, that we experienced during the processing of this text. I mean speaking of the attempt to define by amendment what an hearing was, in so far as, for some, it was really necessary that it was only "the hearing" that was concerned.

Therefore, we have received a multi-page amendment, which attempts to define what an hearing in criminal proceedings is, an hearing obviously likely to fall within the scope of the Salduz judgment.

This amendment has, fortunately, been withdrawn, except that it is part of parliamentary work and that, ⁇ one day, some, whether commentators or legislators in the future, could seize it to find trace of the legislator’s will to define what an hearing is in the pure and full sense of the term.

So let us be clear! The Socialist group, by my voice, does not find itself at any time and in any paper relating to this definition. There is, in my opinion, no definition of the term “audition” that can be used and that is found in our parliamentary work. All this is, in my opinion, only a futile attempt. Things deserved to be clarified.

In conclusion, the authors of this text were afraid. They were wrong to be afraid. We therefore deplore the minimalist transposition of this judgment into Belgian law, while, in parallel, we do not hesitate to open the possibility of doubling the period of detention fixed in our fundamental law, in our Constitution.

The European Court of Justice required us to address a legislative deficiency in compliance with the Salduz judgment and those that followed. I believe that the text submitted to us opens the way for new legal conflicts, for new appeals before the European Court of Human Rights. What therefore seems to be for some here a common sense solution, let us doubt it!

The judgment of 27 November 2008 in the case Salduz v. Turkey has far-reaching consequences for our domestic law. The European Court of Justice interprets the European Convention on Human Rights, but this judgment has consequences for various legal systems, namely the Turkish, Anglo-Saxon and Western European. They have completely different jurisdictions and a completely different criminal prosecution policy. In our system, the Code of Criminal Procedure already provides a number of specific protections of the suspect and of the rights of the suspect.

I respect the separation of powers. Of course, individual rights and freedoms are extremely relevant, but individual freedoms and rights are not absolute. They are limited when the freedoms and rights of others or of society are compromised. This requires an interest balance. As a Christian Democrat, I think that the social perspective should continue to have its rights here.

Our country was warned by the European Court of Justice. Therefore, it must act legislatively. The Senate has now made fundamental choices in this regard, which are a compromise between the minimalist and the maximalist perspective.

I read last weekend in a French-language newspaper that it is blamed Belgium that it took very long before the tearls were thrown. This is not surprising, however, when one looks at the different views of the actors in the field, i.e. of the sitting magistrates, the investigative judges, the prosecutor’s office, the lawyer’s office and the police. They have provided us with their solutions, but the least we can say is that they are not compatible and then I express myself very carefully.

In the light of the balance of interests, on the one hand, and in the light of the social perspective, on the other hand, choices have now been made. Of course, these choices can be discussed.

However, the choice presented here today gives more legal certainty. Is it the solution? This will have to be demonstrated by practice. This must be demonstrated by the judiciary. If, in the light of practice or in the light of jurisprudence, adjustments are necessary, we must have a listening ear to do so.

Colleagues, I am pleased that the amendment of Senator Torfs that excluded traffic offences was approved and that this was also confirmed here. The State Council also understood this. If we were to apply Salduz in every interrogation, in 426 000 traffic accidents, it would become practically impossible.

It is also logical that a minor cannot renounce his right to be heard and assisted, as the State Council and the lawyer’s profession have rightly requested. We have completed the assistance of the lawyer gradually: the notification of the facts in a concise manner, the prior communication of the rights, prior to the hearing, and the right to confidential consultation, at any time, on invitation or not on invitation. Only when there are arrests or there is an investigative judge, assistance comes to the lawyer’s office.

There is criticism in the field that the right to assistance is not provided in all interrogations. This is not feasible, organizational or financial. It would be an excessive burden. The right to assistance is therefore limited: in case of deprivation of liberty or before the investigative judge. If we see that there are almost 100 000 deprivations of liberty per year, which give rise to 24 000 interrogations and 12 000 confirmations of detention, we already have a huge workload with this. The State Council – which I am delighted with – has also made sense for this choice.

The way in which the right to assistance is fulfilled can also be minimalist or maximalist. Here we have made a clear, and rightly, distinction when an active role of the defendant is required, such as in a place visit in order to compare the facts, where the right to assistance is wider.

We have been discussing the sanctions for a long time. There was also some confusion during the discussions. Too often the word nullity is used that is not applicable here anyway. Indeed, an unlawfully held hearing cannot contain any evidence for a conviction, but this does not affect the case-law that the Court of Cassation has already developed at that time, in particular the Antigoon case-law which has actually also become European case-law and which stipulates that there must be no direct link.

Colleagues, if this text is later approved by this Chamber and then by the Senate and becomes law, then the affairs are not yet fully resolved. We have questions and concerns, Mr. Minister.

We have proposed to introduce the entry into force step-by-step. Finally, a compromise was reached on October 1. I find myself in this compromise, but I wonder whether anything on the ground is realistic and practically feasible. We heard the police representatives during the hearings. Two hundred and sixty additional police officers. Suppose it will be half there, Mr. Minister, it will require a lot of logistics and personnel completion before they will all be recruited.

I come to the cost price. Mr. Minister, you have been so alert to provide in the 2011 budget 180 million additional resources for Tilburg, your master plan and Salduz.

( ... )

For the report, can you tell me again, Mr. Minister, what amount is explicitly going to Salduz? Will this amount be sufficient?

We heard the comments from the French-language lawyer’s office this weekend. Of course, there are also sensitivities with the Dutch-speaking lawyer’s office. We also heard this during the hearings. Of course, the legal profession cannot work pro Deo in this area forever. In fact, this indicates a problem of legal aid in general. We have a number of questions that we should dare to consider in the coming months.

Some laws establish a presumption of incapacity, where in reality this is not always consistent with reality. In legal aid, there is also often abuse of law for dilatory reasons. Consider the asylum and migration legislation. Should we not dare to clear it out?

The Judicial Code provides for regression for those who subsequently do not or no longer appear to be impotent. The letter of the law is actually not applied and has the effect that we give resources to people who do not need it. Fortunately, the cost of access to justice in our country is low. Recently, it has been shown that Justice in Belgium has a very low threshold at the world level and that is good: legal aid is a collective good, but on the other hand we should not mutualize Justice.

Collega Terwingen has once suggested in this regard whether we should not provide for role law in criminal cases, for example, as well as in civil cases, which allows us to obtain additional resources that can be used, for example, for legal assistance in application of Salduz. In this context, we actually say that legal aid to those who commit crimes is solidarized by those who are convicted as a result of committed crimes.

There is also the problem of Brussels, Mr. Minister. There is one point of contact filled by the local bars, but what about Brussels, in its specific situation? Both language communities are active in the same field, but do not maintain the same methods and vision. This creates a risk of inequality between the lawyers of both language groups.

All these challenges will be faced in practice in the coming months. We will see if the extension of the detention for 24 hours will pass the constitutional test. In any case, the State Council did not comment.

I think that all these problems need to be followed carefully anyway. You announced an evaluation that I think is right. If it requires adjustments, we must make those adjustments in any case. In the meantime, I think we can steep off the shore with full zeal. As far as we are concerned, and as we have already said during the interventions, in practice the free choice of the lawyer must also remain absolutely free in that regard. This should continue to be the case, even though permanent services have been used before.

Mr. Speaker, I have a small comment. I’ve heard about role-right in criminal cases, but it’s usually the prosecutor’s office that brings things to the role, that is, the government. It is a misconception to introduce role-right in criminal cases. That point will not be discussed today, as it is about Salduz, but that will happen during a next discussion.

I would like to discuss this in the coming months. My intervention was an invitation to do so and you have eagerly accepted it, for which I thank you.

In any case, we must dare to admit that the European jurisprudence, the Salduzarrest, has as a consequence that the Belgian State will have to invest a bunch of additional resources in the assistance of those who have committed crimes. Then there are two options. Either we tell it to all citizens and therefore also to the honourable citizens who work day and night and do not commit crimes, or we try to solidarize those who commit crimes in this regard. This is a debate that we can engage in the coming months.

Dear colleagues, it is a honour and pleasure to be able to speak after Mr. Verherstraeten. I apologize for the difference in style and content.

As for the current text, I think that we will now be the cause of many problems. I partially agree with the reasoning of colleague Giet, but my conclusions are different. With this legislation, which must come into effect, we take enormous risks in practice. I do not understand that. Since the Salduz jurisprudence there has been an evolution in the field and in the cassation jurisprudence, which led to a certain stability.

I am literally quoting from a process-verbal of a hearing in the Brussels district, in connection with serious facts.

It is expressly stated in the minutes that the person concerned acts as follows: “You also inform me that after consultation with my lawyer I have the possibility to request a new hearing. If I would be placed under an arrest warrant, I have the possibility to request a summary hearing in accordance with Article 22(3) of the Act on Provisional Detention, which is a hearing by the investigative judge, which can be attended by my counsel.”That is the practice today, without a law text, which, if one looks at the case of the Court of Cassation, is actually consistent and stable, and which therefore does not involve the risk of not causing novelty.

My stance, and the stance of the sp.a, remains that we must make a legal arrangement to establish the stable practice of today, namely that one is pointed out that in case of detention one can have assistance from the investigative judge, that one knows that one can always consult his lawyer, one is pointed out. They can add that you always have the right to remain silent, even before the investigative judge, while your lawyer is there. It is a very simple system, it is legally stable and in practice affordable and executable.

What we now propose is a drama for tackling tax fraud and is a problem in tackling roaming gangs, to name the two extremes. I try to explain myself more closely.

The Council of State makes the reasoning, as also made by colleague Giet, that who says a, should also say b. Only, by the way, it is not nice for the Council of State to ignore a case of cassation, but let us call this a constant, it is an internal Belgian problem. They take the jurisprudence of the Court of Justice of the European Union; I also think that we should not question the Court of Justice of the European Union here, but one must want to interpret it and look at it in its context, which the Court of Cassation always does. Any jurisprudence following facts abroad in another legal system should also be taken into account in the assessment of the jurisprudence, which the Court of Cassation always does in practice.

The State Council thus provides an illustration and inspiration for the procedural lawyer. The State Council’s opinion asks to explain what an interrogation is from a very theoretical but legally correct approach. The second question is what a first interrogation is. The next question is what “can do distance” is. How is it described in the aforementioned terms?

The State Council thus provides the inspiration for the possible discussion in practice. Let us be honest, this is a discussion that is being used too much, because it can be supported by some formalism.

Such formalism is stopped in the present bill by means of the sanctions provision. The bet is, of course, that one does not want to conduct his trial on the basis of the following argument: we were witnesses at that time and suddenly we became suspects. Such a legal assessment must be made by a police officer. This is the first time that a person’s capacity – a witness who suddenly becomes a suspect – is not determined by a formal act before the court, as in the case of prosecution or contemplation; it is determined by the police officer. He must determine them.

You may already think of the problem when discussing tax fraud, asking one of the accounting staff about how the fraud system works. When is the person concerned interrogated as a suspect and when is he interrogated as a witness? Once the testimony has been recorded, when should the hearing then stop? The major discussion afterwards will revolve around whether the police officer stopped the interrogation on time. Did he give the applicant the correct explanations in time?

On the contrary, the practice allows, through an additional formulation, that a person can always consult a lawyer and that, if he is to be detained, he can always step with his lawyer to the investigative judge. Although the above-mentioned simple statement is already being used in the largest district, it is not sufficient, because we have even wanted to regulate by law that European directives that do not yet exist are already translated into a legal text. It must be done! Therefore, we want to advance things already with a form of current legislation. The result is that we will get fugitive criminals. That is what we are creating today.

I repeat that we are for fair trials and for a fair defense of the people. What is introduced here, however, is formalism that foundenes Fressen is for the defense of the two extreme categories.

The legal profession, and I know that world, is already preparing for a new market that is becoming open. There is a new market that is preparing and one is even willing to protest to sit at the state treasury.

Who are the two categories that will be able to respond to that formalism? Those are those who in our system are regarded as impotent on their own, especially the circular gangs. The pro Deos System will go very quickly.

We already know that there is a lot of formalistic behavior of lawyers who are overpaid. You can specialize in it. By the way, the offices are organizing for this. I know what I’m talking about, because I know the industry a little.

You should not be blind to that either. At the moment, no concrete right of defence has been improved. This is a category of people who can count on all the support of the system.

Another category concerns the others, who do not need that support. Let me take the example of the malicious tax fraudsters, of which we also know a few historical processes. If they put their better-paid lawyers on the application of such texts by ordinary police officers, I promise you many new nonsense.

However, if we followed the wisdom of practice and of the Court of Cassation, we would shut the door for further reasoning in the direction of formalisms that have nothing to do with the rights of defence.

Therefore, my final plea is to think again together with the senators. Adopting a minimalist attitude in these is something different from concluding a compromise that still leaves the door open for many discussions.

This legislation has given the defense of circular gangs and the big tax fraudsters much more inspiration than before. This is a text against which you cannot refrain. One must oppose it if one is for a security policy that still ensures fair processes in our system.

We are not a country where the processes are not conducted fairly. Because of these introduced formalisms, they will not be fairer tomorrow, on the contrary.

I think you should think again about what you want to approve here. If in a few months there is a major incident about another release due to one of the formalisms that was not observed, then many of you who have approved this draft here will no longer have the right to protest.

I thank you for your attention.

Mr. Landuyt, I would like to point out that your sp.a. group in the Senate has approved this proposal. Did you announce the position of the SP?

It is bicameralism.

Mr. Speaker, allow me to answer for a moment.

Mrs. De White, that is such an argument ad hominem, even if it is a group of people.

What I advocate here, I have also advocated with my colleagues-senators, lawyers and whatever professional categories are present, with the conviction that this is the position of sp.a.

I repeat that we are in favor of the rights of defence. We also support a practical security policy.

You must be honest; if you know the practice, you know that with the introduction of this bill, thanks to formalism, the inspiration is given to complicate even more processes.

Imagine yourself in the place of the police officers who now realize the top priority of holding and picking up the roaming gangs. This must now be done with the texts of our Parliament. Police officers should ask themselves whether they know exactly what they are doing. Formalism involves the number of hours and there is a certain time prescribed for consultation in case one is in that capacity. From October 1st, everyone will be able to do this. Well, I promise you a lot of pleasure in listening to police officers.

I think that as Members of Parliament we should also consider whether our translation of principles into formalism in practice serves the right thing.

Many ideologists in your group should know that we are making a text here for those who benefit from the system. There are always two extremes: those who can exercise all possible social rights on their own, such as lawyers at the expense of the State, especially the roaming gangs, and those who can afford everything, who have thousands of euros left to put specialized lawyers on their case, without having to talk about the violations themselves. You cannot be blind to this reality. What you wish to approve today is a step forward in the formalisms of our law, which will lead to no more, but less security on the ground.

Mr. Landuyt, I have listened to you well now and in the committee. You are more than sufficient lawyer to know that there must be an answer to the jurisprudence developed in the European Court of Justice.

We have pointed out that you are making certain choices that are contrary to the current case-law of the European Court of Justice. You say that we should take the risk and that we will wait until there is a sentence.

I think that for a lawyer of your caliber a little positive attitude. You take huge risks with this position. Thus we risk being condemned, which is nothing. I assume, I am convinced, that individual rights and freedoms are dear to you too.

Mr. Verherstraeten, I agree with your qualification on the caliber. Exactly for that. This is about the package of case-law after the European Court of Justice. The main principle is that one must integrate the requirement of a lawyer’s assistance into the own legal system and one must as a whole determine what a fair and fair trial is. In our legal system, the heaviest decisions are made by the Court of Cassation, decisions that can lead to release. The European Court of Justice will come later to sanction us as a government or not.

What, however, is more, and what one as a lawyer should understand, is that one introduces in this text 3, 4 or 5 new terms that lawyers already do water teeth over the interpretation that one can give to it.

I have given you an example of how tax fraud investigations should be conducted. There is a system in Brussels that, in my view, works and is fully in accordance with the Court of Cassation and is therefore stable.

We wipe this system out of practice and we say that we are going to do more. After all, every policeman must now judge for himself when someone suddenly changes from a witness to a suspect: a legal qualification in the hands of the police interrogator. This is unseen in our system. That is new.

This will therefore give rise to discussions afterwards, when the investigation is completed, allowing the basic process-verbal, which explains everything, to be declared invalid. In fact, the law introduced in June 2011 stipulates that one can no longer use such PV because one has not informed the person concerned according to the correct formalisms and has given time to consult with a lawyer again. These are additional formalisms that have nothing to do with treating someone in good faith and fair. With this text you introduce new legal concepts and new legal situations that will lead to new invalidities.

I invite everyone who approves this to the first discussions in this Parliament when a gang or a too big criminal is released. Then I would like to point out again that you have approved certain texts here that make such a thing possible. It is for no reason necessary to translate future European directives into legislative texts, as the Minister wants to do. It must be done. That is just taking risks. In this case, I ⁇ ’t want to be the responsible minister who will do something like this before 1 October 2011 in that way, who will make sure that all those police officers will do that. Police officers are seen in these cases as problem cases. According to these rules, the police officers are apparently the criminals that need to be caught. We would be better at helping them to tie up the criminals.

Mr. Speaker, Mr. Minister, colleagues, after this one-sided and pessimistic approach of Mr. Landuyt, I begin positively. I break a lance for the people on the ground: police officers, officers, prosecutors, lawyers and magistrates who do their best to put the European Salduz jurisprudence into practice by organising the consultation or assistance of a lawyer after a first hearing.

The doomscenarios that colleague Landuyt cites are, in my opinion, distorted by the practice and by the fact that Salduz already works and is being applied today.

As legislators, we hang behind, even though many questions have been asked and bills have been written in this house since 2009. I would like to mention in these my colleagues, the ladies Van Cauter and Taelman. There, Mr. Minister, has been drawn to your wrist repeatedly. We hang behind. Even so far, people on the ground already assume that the law has already been amended. I am referring to an anecdote I experienced this morning as a lawyer.

This morning, very early, I was barely out of the bathroom, I was called by a police officer to – as we say with a new verb – go “sals”. I drove to the police station. Just before the client entered, the police officer explained to me that there is a new legislation, that people who are interrogated for the first time now get the right to assistance or the right to speak with their lawyer before the first interrogation. When I wanted to explain to him that the debate on the law amendment would take place in the House this afternoon and that we would approve that tomorrow, he fell completely out of the air. He said that he thought it was already law and that they are already doing it.

Thus, I want to make everyone aware, first, that it is already being applied in practice and, secondly, that what we do here is very important, but that we must also have a great deal of respect for all people in the field who have long been making a great effort to apply the Salduz jurisprudence.

Mr. Minister, at the beginning, our group focused on how to reconcile the requirements of European jurisprudence in the most feasible way with the daily practice of the police, the prosecutor’s office and the investigative judges. How can the rights of suspects be reconciled with the safety of society? This is the balance exercise we had to do, both in the Senate and in the Chamber.

At this point, the hearings in the Senate and in the Chamber have been very interesting. They were very extensive, even though we as committee members sometimes felt that we should try to reconcile water and fire. In the hearings, one was unanimous in the loud call for a clear law. In practice, Salduz is already applied, as I said, but in a different way. There are many good practices, but it is high time that the law gives clear instructions and clearly specifies which system should be followed.

There have been hearings. The State Council issued an opinion. There was a constructive discussion in the committee. As always, we have heard different opinions. However, it was remarkable that within the same political family, we heard the maximalist vision, on the one hand, and the minimalist vision, on the other. During the discussions we stopped for a long time on a number of points. I would like to mention one: the definition of an interrogation.

Should or should not the definition of interrogation be included in the law? We continue to have doubts about the choice made to not include the definition in the law. In fact, the State Council’s opinion literally stated that it is necessary to define or at least define the concept of “interrogation”. An intermediate solution was chosen, but the Open Vld still has questions about it.

Everyone, both for and against, you, Mr. Minister, and the people who will have to apply the law in practice, is aware that the text is not ideal. There will ⁇ still be comments, but as legislators we can say that we have made an attempt to come up with a as viable set of rules as possible.

For the Open Field, three points are very important. The first point is the 24-hour deadline. In the Senate there were extensive debates on this subject, but in the House those discussions were slightly shorter. We are not blind to the practical difficulties concerning the deadline within which something must be done, as stated by some colleagues, and therefore this text makes it possible to extend the 24-hour deadline once. We supported this by compromise. You know our position, Mr. Minister. We have always been in favour of incorporating this extension into the Constitution. While many held their breath for the State Council’s opinion on this point, the State Council did not object to this compromise. This is an important point.

A second very important point for us is the financial implications. I have heard here say that this is a new market for a certain group. One would jump into that market and loot the treasury. I think the clarification in the text is very important. I quote: “Only if the person interviewed has insufficient income, he or she will be able to claim the partial or full free of charge.” I am convinced that it is first and foremost the duty of the lawyer not to automatically assume that if one is called to go “salduce”, this will be either within the framework of the second-line assistance. No, this is not how it works. First of all, solvency should be considered. A solvent client pays his lawyer. Only in the other case, in the case of insolvency, can one resort to the second line aid system.

There was a point about retroactivity. Mr. Minister, I asked you a question about this a while ago. Will lawyers who have already had “salduzd” in the past period eventually receive compensation from the second-line aid? You answered very clearly that there is no retroactivity, but only a fee, only points, as soon as the law comes into force, normally seen in the autumn. From a certain point of view, there is a lot of reaction. However, as you explained in the committee, there must first be a law, a system under which honors are awarded, which determines how many points will be awarded before it can be paid out.

A third and last point that the Open Vld has insisted on is the evaluation. I have already said that everyone is aware that the present text is not an ideal text. Therefore, we repeat our request to ensure that the law is evaluated within a certain time. Mr. Minister, you answered in the committee that this evaluation is planned within the year, both qualitatively and quantitatively. The necessary budget is available. I would like to ask you to confirm this explicitly again.

Ladies and gentlemen, I will decide. The Open Vld has been constructive both in the Senate and in the Chamber in the discussion of this very important bill. We will support the bill. Again, I advocate proper application of the text and its evaluation within the agreed deadline.

Unfortunately, I must accuse some of you of a lack of courage and courage. We sit here as a representative of the people, elected by our voters, and we must make our vote valid for our internal law. We are not the elite slaves of the European Union, and I don’t say “Europe” because that’s very different. We are not the roots of laxity.

I heard the N-VA say they had no choice and I heard CD&V say they had to choose between a minimalist and a maximalist vision. When I hear Mr. Landuyt, I even doubt the truthful content of those versions. I fully support Mr. Landuyt. I think we are here just a false discussion when we talk about the so-called choices.

What matters is the finality, the purpose; the judicial system must provide sufficient safeguards to protect the rights of a suspect. Everyone agrees on this.

Our current system of internal law provides that guarantees with the investigative judges and the council, of which I am convinced. It is a sui generis system, difficult to compare with that of other countries and ⁇ not to compare with that of countries such as Turkey, Bulgaria, Romania, Ukraine and just mention it. This is about the judgment-Salduz for a large part, that is sometimes forgotten.

The perfect world does not exist. There are ⁇ convicted in prison who are innocent and there are ⁇ innocent people who are punished, including in our system. But the application of Salduz, colleagues, creates an imbalance. The identity, solidity and feasibility of our legal system and of our police system are placed on loose screws. We must dare to say that, we must make that sound loud. There have already been people with a lot more cars than I pointed out. Some foreign ministers have already condemned the European legal institutions. The President of the Constitutional Court also made critical comments. Let this be a debate, not in which the EU is put in its shirt, because I have respect for the European institutions, but in which the EU is in fact justified and in which one says: until here and not further. Unfortunately, this debate is being abandoned today.

I agree with colleague Landuyt that today we are causing a lot of problems of which we can see the beginning but not the end. The formalism that is now intended to be introduced will not, in my opinion, lead to much fewer innocent people left out of the cell. However, it will result in a significant number of convicted persons, or persons who normally should have been convicted, escaping their justified punishment.

Giving rights to a suspect is indeed a characteristic of civilization, colleagues. Let everyone agree on this. However, the legs of the chair can be squeezed to the extent that they break. This is what Salduz does with our legal system, I am convinced of that. Of course, not everyone will benefit from formalism. Especially the thick fish will do so, not the small garnals that pro Deoadvocates have with little experience. Let us be intellectually honest.

It will also create a new class of lawyers, the Salduzpleiters. They will be the forerunners of a certain class justice, allowing thick fish to swim away. I am convinced of that.

By introducing the Salduz warranties, which should normally apply in systems such as those of Turkey, Russia, Bulgaria, Romania or Ukraine, the police will become more dismotivated and the current balance will be broken. You do not have to listen to me, but I hope you listen to what colleague Landuyt had to say about this. For once, we are objective allies, colleague Landuyt, and none of us can do that.

Colleagues, we will talk to each other over a few months when the first incidents occur.

Mr. Speaker, Mr. Minister, dear colleagues, we can lament, we can consider that we are changing the judicial or legal regime, that tomorrow ⁇ we will no longer learn Roman law in our universities, that our criminal procedure that instructs on charge and discharge has come into being because we have been increasingly influenced by the Anglo-Saxon model. Maybe that is the direction we are going. We may regret this, but at the same time we are bound by international obligations and a whole series of treaties, except to put these treaties into question or to consider that the case-law of the European Court of Human Rights does not have to impose itself in our internal order.

If, on the contrary, we consider that this is the case, it is necessary, Mr. Minister, that we move forward and that we respond to the prescribed or, one can say, to the orders that are given to us. We know, in fact, that if we do not do this exercise of integration into our internal legal order, we can be punished and see all our procedures challenged and misplaced, resulting in a complete collapse of our judicial system.

We are forced to act.

To apply the principles outlined by Salduz’s jurisprudence, one could hear the supporters of two theses within the same political family: the socialist family. We have heard, on the French-speaking side, on the one hand, the whole thing to the lawyer – if I can call it so. A lawyer always and everywhere, in all circumstances, anticipating thus the obligations imposed by the judgment Salduz. On the other hand, I hear Mr. Landuyt tells us not to go too fast, to do only what we are really obliged to do, and to content ourselves with anticipating this at the level of the judge of instruction. According to him, that would be enough.

I don’t know who holds the truth, but I know that we must meet our international obligations and that we need to find functional and practicable answers.

What guided me in the examination of the texts was not so much the fact of giving an accused, an accused, additional rights as to guarantee the respect and the principle of a fair trial. In a fair trial, especially in criminal proceedings, there are necessarily three parties. There is the prosecuting part, namely the public prosecutor or the investigative judge in certain cases, the person prosecuted for the offence, crime or crime and, finally, very often the injured or the victim. In all the discussions and again in the debates we have this afternoon, we often forget this third part. The fair trial is one that allows each of these three actors to have rights and be heard in the proceedings.

Sometimes I feel that some here would like more and more rights to be granted to accused persons, not that these rights are not justified. However, it may create an imbalance, or even a discrimination, between the rights of the accused and those of the victim. I would not like to hear in this same tribune, some time after the implementation of too laxist principles, that, in the end, the victim has less rights than the accused and that she has less the word in the trial. This accusation, we already hear it enough! This imbalance should not be aggravated.

It should not be that the entirely legitimate objective of improving the rights of persons heard in the course of an investigation ultimately allows those same persons to escape prosecution for purely procedural reasons. This is why the exercise we engaged in was difficult.

Its result, about which I have had the honour to report to you, is a balanced text, which takes into account these different obligations and necessities. Nor would I want that tomorrow, in a police station or before an investigative judge, one is no longer in a position to conduct investigations that allow to resolve crimes, crimes or offences. It is still necessary to be able to sometimes put the accused or suspect under pressure in the search for evidence.

Let us not forget, in fact, that at the judicial level, even at the criminal level, we are in a system of collaboration on evidence, even if the accused or suspected person has the right to remain silent. I would not want that tomorrow those who shout to the greatest laxism are also those who tell us that we never stop finally releasing people for purely procedural reasons.

Mr. Minister, we will vote on the text as it is proposed but I do not say that we will vote on it with enthusiasm. As we have said, we are in a highly evolving system. We don’t even know what the case-law of the European Court of Justice will be made tomorrow, but we need to move forward and that this text can be voted and put into practice.

Mr. Minister, I really ask you, as well as the Minister of the Interior, to ensure that the police commissariats, the police authorities, the judiciary and the bar have effectively the material, human and financial means to be able to apply what we are going to vote. I feel that this text could remain a dead letter if police and bar, in particular, did not collaborate in its implementation. I have no big problem with its implementation by the police because it is a structured, hierarchical, organized body, which depends on the federal state, which has a minister of guardianship, and which will have to adapt. This does not mean that efforts should not be made for the training of police officers, for adequate premises to be made available, for the confidentiality of the meeting between the lawyer and the person being heard to be truly ensured. On the other hand, it seems to me that there will be much more difficulties with the bar, which is a completely independent body, composed of people who exercise a liberal profession. Of course, these people will enforce the law, but they can create some difficulties for you if they are not convinced to participate in a useful collective work.

We know that the implementation of this text will disrupt current judicial practice. We know – and those who do not know must be aware of it – that what we implement will somewhat disrupt the current functioning of justice, which is not already brilliant in itself.

Indeed, we all know that when a fact has occurred and a lawyer will have to go to the place of an hearing, he may eventually be called on the same day before another court where a case has been settled for several months or, waiting for such a date or judicial solution, for years. During the session, he will not be able to comply with this obligation in order to meet the prescribed text that we will vote soon. The text will therefore create practical implementation difficulties, thus undermining the functioning of our judicial system.

Mr. Minister, in order to alleviate the legal uncertainty to which some have appealed to denounce the fact that our text did not go far enough, the bars agreed to try to anticipate this uncertainty by already organizing stays, being available 24 hours a day, according to sometimes divergent modalities depending on the bar.

You must be aware of the effort made. I invite you to reflect again and to review your position taken in response to my question regarding the possible compensation, with retroactive effect, of all those lawyers who have invested in the name of legal security. You should respond to this legitimate request on their part in the case of practicing this legal aid.

We all know that legal aid, whether we like it or not, from the moment we implement this Salduz legislation, will increase, probably explode, but no one today is able to say with certainty what it will cost to SPF Justice. What will be the cost of this legal assistance as part of the implementation of this legislation, probably followed by others, such as lawyers of minors or the family court? In fact, various legislations are in perspective, or even in the process of finalising, and they will have a cost.

In addition to implementing in our internal order the principles set out in the case-law of the European Court of Justice, we must be aware that new financial resources will inevitably need to be released in order to ensure the application of the new provisions. I therefore call on all those who, at one time or another, will participate in the negotiations for the formation of a government.

Mr. Minister, we will vote on this text, not with enthusiasm but because necessity makes law. It is necessary, in fact, that a text promptly guarantees this legal certainty, especially at the level of the bar.

And as you said, this legislation will quickly have to be confronted with the realities of the field in order, then, on the basis of statistical elements, to be the subject of an evaluation. I think we are all aware of this.

Mrs. Marghem, many women have already spoken. The quota must be respected a little... I don’t want to prejudice the debate from now on.

Mr. Speaker, colleagues, the creation of this text has been a difficult childbirth when we see how much time and energy has been wasted in the debates in the Chamber and Senate. It has been a lot of work, but that is not always a guarantee of good work. I will talk about it later.

When we all knew more than a year ago that we had to intervene and adjust our Belgian legislation, no one stopped or that is so obvious from a legalist point of view. It is believed that a person should be registered in the law that a person receives legal assistance by a lawyer before and during the interrogation and that only a few articles must be amended. As soon as everyone begins to write texts and the discussion breaks out, one finds that something is not so obvious, the more given the evolving jurisprudence. There is not only the arrest-Salduz. Later, many other judgments followed, resulting in new obligations.

Let’s be clear: we must, of course, follow the jurisprudence of the European Court of Human Rights. Occasionally there is criticism of the European Court of Justice and it is said that it goes too far, that it imposes rules that we do not like, and that the legislation that has been applied for years or decades in a European country at some point considers to be in conflict with provisions of the European Treaty. This is the result of the fact that the European treaty works and thus generates justice. We should not put that criticism here. That is the feed for a good debate, but rather an academic debate about the role of supranational legal colleges and the impact they have on the legislation of individual countries. This is a very exciting debate, but we stand here once again as a member state. As a state subject to the provisions concerning the European Court of Human Rights, we must of course respect its jurisprudence.

It can also be a very long discussion about the extent to which we introduce the obligations. There has already been a discussion of the minimalist and maximalist vision. This is a fair debate. In our opinion, the above text is rather minimalist, too minimalist for us. Therefore, we did not approve the text and abstained in the committee. Therefore, we will submit a number of amendments today and submit them to the House for voting.

It is also regrettable that the assistance of a lawyer for a person who is being questioned by the police does not apply if he has not yet been deprived of his liberty. This may be another element on which the European Court of Justice will decide in the coming weeks, months or years. It is also clear, when one considers that assistance essential, that the distinction of whether one is deprived of his liberty or not is not a justified criterion.

The future will tell if we need to rectify later. One thing is certain, the jurisprudence of the European Court of Justice is in full evolution and what we record today in a legislative text may be outdated tomorrow.

Mr. Minister, I will briefly explain the amendments we submit. That is the point of my presentation this afternoon.

First, important in the text is that everyone is informed about the facts about which one will be questioned. That is a good thing, because today it is often not the case, one gets an invitation to come to the police station and one often doesn’t know why to come to the police station. To be informed about the facts about which one will be questioned is a good thing.

However, the question arises in what capacity. We have also discussed this. Should it also be indicated in what capacity one is called, whether one is called as a witness, as a potential suspect or as a victim? One will not know, one will receive an invitation and one can suspect it, but the police officer will be the only one who knows in what capacity he will question the person concerned.

Therefore, it is important that there is also a provision that at the moment when one indeed changes of status as it were, if one originally thought to be heard as a victim or as a witness but suddenly becomes a suspect, a number of communications must be made. That is essential.

It seems to us important that someone who is being questioned immediately knows in what capacity it is. That is the only way to get things done in the right way. Therefore, we submit the amendment in question again to the plenary session.

Mr. Minister, we have long debated the audiovisual recording of the hearing. We note that there is quite a broad consensus about the fact that the recording is a good means. A recording of an interrogation is the best guarantee for the correct course of the interrogation.

What is the underlying reason? What is the ground of the Salduzleer and the Salduzarrest? What is the concern? That is, when someone is interrogated, especially by police services, he will not make certain statements or confessions under physical or mental pressure. The best guarantee and guarantee we choose here is the assistance of a lawyer. A guarantee could be provided by filming the interrogation, so that, in case of discussion, subsequent control is possible.

The amendment, which we present again, aims to allow filming of the hearing when there is no assistance from a lawyer, so that discussions can be followed by verifying the circumstances under which the hearing took place.

The arguments cited that the police services are not prepared for this, that they cannot, and that there is insufficient material available, may be valid today. If, however, we find that important – and I have the impression that the point enjoys widespread support – then we should dare to decide to equip the police commissariates with the necessary equipment as soon as possible.

If it takes half a year, then it will be half a year. If it is a year, then it is a year. In our amendment, we propose that the provisions in question should come into force on 1 January 2013, for example, and that the King may decide to make the provisions come into force earlier.

If it is still too soon, then we can restore it and we can move to 2014. It is only by proposing a specific end date that there will be enough pressure to ensure that the police commissariates are equipped with the necessary material.

Mr. Minister, if we do not, we will have the same debate in two, four or six years and again and again a Minister of Justice will have to admit that we have insufficient resources, that filming is not possible and maybe there will be another ten years to wait before a provision on the subject can come into effect.

Another issue is the length of detention. Discussions have been held both in the Senate and in the House. The extension of the detention from 24 to 48 hours is completely rejectable for us.

In our opinion, the text that precedes is contrary to the Constitution. This has been done through a very clever effort in the Senate. New mathematical formulas have been invented. According to the Senate – and the House committee has scattered behind it – 24 plus 24 is not equal to 48, but to 24. Apparently, new mathematical formulas were invented.

We had hoped that the Council of State would overtake his calculator and check for a moment if he also reached 24. The Council of State, however, has been narrowed around the discussion and has not expressly commented on it, which is ⁇ regrettable. If a judge did, we would accuse him of denial of law.

The State Council may apparently allow itself to cycle around one of the most essential elements of the draft, which is also disputed, and not to make a judgment on it.

That is very unfortunate, but it will be the task of the Constitutional Court to decide on this when ⁇ an association authorized to act in court will go to the Constitutional Court to challenge the provision. That is a pity, because here today at the vote – and maybe later when the Senate will have to overcome the vote – we lay the germs for processes and further legal uncertainty.

If, within a year, the Constitutional Court finds that there is a violation of the Constitution, new legal problems may arise. We could have avoided that by either not touching the 24-hour term or by touching it, but then immediately also amending the Constitution. The Constitutional Article has been declared subject to revision. So that was also a possibility.

That is not to say that we are in favor of this, but the debate could at least be conducted correctly. Now the Constitution is being bypassed in a very sluggish way.

Another problem concerns the nullities, to which a very interesting discussion was devoted. Following the opinion of the State Council, amendments have also been made to the provisions of the draft. A proceedings-verbal in violation of the law cannot serve as evidence for a conviction. That is the basic rule. For the rest, we are in favor of the Court of Cassation in its jurisprudence further developing the Antigoon doctrine. That is in itself a good thing. However, an essential protective mechanism and a right granted to each suspect in § 4 of Article 47bis of the Bill is not subject to the sanction. This is ⁇ regrettable, because § 4 is about the letter of rights, the communication of the rights that each suspect and each questioned person has, a relatively new element in our Belgian legal order. It is nice that we introduce that letter of rights, but by not attaching a sanction to it, it remains a dead letter of rights. Disregard of the rule is not sanctioned. In our amendment, we propose to include also violations of § 4 in the list of sanctions as entered in § 6 of Article 47bis.

Finally, whoever says A must also say B. Everyone knows that today, on their own initiative, often in good agreement with the investigative judges, police services and the court, the bailies are trying to develop a method for organizing legal aid. That is a good thing. They do this in good cooperation, in a serious and responsible way. I find it especially regrettable that there are no remuneration available for these services today. The principle of remuneration may not be the most important now, but it would be regrettable to put that law into force from 1 October 2011 and only then provide for those resources. You said the funds were reserved. Per ⁇ they are inadequate. So why can’t you apply it today to the banks that organize this assistance in a correct and serious way? It doesn’t have to be huge fees – we’ve seen examples abroad where the fees are much higher – but a fair remuneration for the work done by the lawyers, often at night, on weekends or both, can be.

Mr. Minister, allow me to make a call. If the bill is approved today, then you should also quickly release the funds for the compensation, why not from 1 July 2011, in the middle of the year, even though the law comes into force only on 1 October 2011, in order to properly finance the lawyers and banks that organize it in a proper way.

Given the absence of Ms. Boulet, I will ask Ms. Marghem, who wished to speak last, to take the floor now.

To repeat the words of Mr. Brotcorne, I don’t think I’m more important than the others. I have more sense of humor than others.

I will try to say in my speech useful things without repeating what others have said very well. It would be difficult because I have an option in this debate. You may have noticed that we have reached a text that will ⁇ still evolve after a debate on diametrically opposing opinions. What have I not heard about the bar today, especially in the mouth of one or another who has practiced or who still practices this venerable profession.

It is a pity that mr. Landuyt is not there. It has been said that lawyers are “seeking a new market.” It has been said that this will complicate the action of the police and justice. Some people like mr. Giet, on the other hand, finds that the bar is poorly served in this case because the rights of defence enshrined in the Salduz jurisprudence and our bill do not go far enough in the matter and therefore do not serve the defence of individuals. by Mr. Brotcorne, on the other hand, tried to find the balance between the one and the other by telling us that in the end, this text is not perfect, which is true, but that it will ⁇ evolve, and that he has found a form of balance between “the independent and liberal pole of the profession of lawyer” – this is what I have heard – and the pole of justice. However, as I know, the judges are also independent and until proof of the contrary, they will apply the law with the professionalism that suits.

From our point of view, the bill we are called to vote today still constitutes an important step forward for persons deprived of their liberty or suspects in a criminal investigation. This is a real improvement in the respect of the rights of defence dictated by the now famous Salduz v. Turkey judgment issued on 27 November 2008 by the European Court of Human Rights.

Mr. Minister, I will tell you immediately and I have already told you about it, there are so many things to do that we are always late. If we had addressed this issue while there was a full-time government, in 2008, ⁇ the ministry’s study capabilities and the Financial Inspectorate’s calculation capabilities to determine the financial impact of this project could have helped us. This would have prevented us at least from being forced to provide us with legislation in the urgency, which may suffer from certain shortcomings, as the next jurisprudence will teach us later.

Indeed, this decision was the precursor to an impressive series, which must be of the order of the hundred today. Therefore, we cannot sweep from one side of the hand, as Mr. Landuyt might sometimes want to see us do it, a very abundant jurisprudence that compels us.

This case-law has continuously confirmed the necessity for a person interrogated by the police or by a judge, and further deprived of his freedom to go and come, to have access to a lawyer, guarantees the rights of defence, I reaffirm this.

The Belgian State is therefore compelled by this case-law to provide itself with a legal arrangement that must put an end to the chaos facing the actors of the judiciary and the prosecutors. In the absence of a full-time government, it was up to the legislator to take responsibility – which we did – because inertia risked to result in the nullity of many criminal judicial proceedings.

Mr. Minister, can we want the lawyers to ensure that they can now organize stays as they can while waiting for the law, while, on the other hand, they criticize before the courts, rightly, on the basis of European jurisprudence, the provisions contained in it when access to the lawyer has not been legally provided?

Take the example of France. The French Court of Cassation, in a judgment of 15 April 2011, recalled that the fundamental guarantees cannot be suspended while the Parliament is up-to-date. This implies that in France, in cases that have been held without a lawyer before the entry into force of the law, in cases that have not been judged definitively or that await an appeal or cassation, a conviction cannot be based on incriminating statements, such as the confession of a suspect outside the presence of a lawyer. The Court of Cassation has made a very clear decision on this matter.

It was time, we all know, that politics should send a signal to the practitioners and the justiciables.

This is, therefore, this project which is first part of the Senate and a creative work of the Senate. He worked without the possibility of being helped. There was, of course, the work done in France and one or the other element from European jurisprudence but to arrive at a text that replaces precisely a government bill, it was necessary for the Senate to find hardly a text that creates consensus.

Then the case came to the House, after an opinion of the State Council on which we also relied to reflect and advance this text, which is done at this stage.

Questions concerning the respect of the different teachings of the case-law of the European Court of Justice remained in fact suspended since the text of the Senate when this text came from this venerable institution.

Some argue that this case-law must be interpreted as going beyond these rights. For others, as we have often heard, this goes beyond the requirements of European jurisprudence. We do not think so.

The Chamber Justice Committee therefore did not hesitate to seek the State Council’s opinion to exclude the shadow zones. This opinion helped reassure the legislator on some points. The State Council does not object, for example, to the device blown to the senators by Damien Vandermeersch, general lawyer at the Court of Cassation and professor at the UCL and the Saint Louis University Faculty, as regards the possibility for the investigative judge to extend by 24 hours the period of deprivation of liberty prior to the issue of an arrest warrant. The judge of instruction may, upon request of the King’s prosecutor or of office, issue only once a reasoned order of extension of the period of 24 hours.

This arrangement was judged by the State Council "respecting the prescribed provisions referred to in Article 12 of the Constitution". In fact, it confirms that it is the judge’s order, as envisaged by the Constitution, that must be taken within 24 hours, under which the suspect is kept in detention. Through this, practical difficulties are taken into account. Thus, a balance would be established between the work of justice – and the police apparatus – and the organization of the rights of defence. All practical problems faced by the police in advance for carrying out the investigation tasks within 24 hours can thus be alleviated by extending the deadline for justified reasons, if necessary. This is an acceptable compromise, contrary to the status quo advocated by some as well as the willingness expressed by others to move from 24 to 48 hours.

The Council of State also approved other important points. I mainly think of the fact that the possibility to derogate from the right to the assistance of a lawyer, admitted in certain exceptional circumstances – such as a kidnapping or a terrorist threat – was considered legitimate by the State Council in the light of the case-law of the European Court of Human Rights.

On the other hand, he rejected several other provisions of the bill. I will not delay, Mr. Minister, dear colleagues, on remarks that I would call technical corrections. I think, for example, of the obligation to clarify that unarrested minors cannot waive the right of prior consultation with a lawyer. This correction is in fact part of the logic desired by the legislator in the original text. Several amendments in this direction have been adopted by a large majority.

But I would like to emphasize three fundamental elements to conclude my speech.

These are three fundamental points raised by the State Council and which have been the subject of very vivid discussions within the Chamber Justice Committee.

1 of 1. The definition of the starting point of the right to assistance during interrogation. When should I be warned that a lawyer can intervene and assist the person?

2 of 2. The nature of this assistance. What can the lawyer do when assisting the person?

3 of 3. The sanction provided for in the event of non-compliance with the right to the assistance of a lawyer and all other rights recognized to the person heard, whether suspicious or deprived of his liberty.

Following the State Council opinion, the MR submitted amendments on each of these points, which we considered essential to ensure a satisfactory, realistic and balanced legal response in relation to the requirements of the European Court of Justice as interpreted today by the State Council.

As regards the definition of the starting point of the right to assistance during interrogations, the State Council considers that the case-law of the European Union imposes the right to the presence of a lawyer during a police interrogation, when one is deprived of his liberty: the famous 24-hour detention period. But she believes that the criterion that prevails is hearing as such. According to the State Council, "it must be taken into account the fact that a person is heard on facts that may be charged with him." It is the definition or beginning of the definition of the hearing and therefore, from the starting point of the implementation of the rights offered by this legislation.

This is why the MR proposed to inform the questioned person, not placed in custody, of his right to go and come, as provided for in the French legislation recently adopted in this country. This amendment seems important to us because, in reality, the person will not always distinguish between his or her situation and that of a person placed in custody. You must, in fact, have the courage to refuse to answer the questions of the police and ask to be able to leave especially if you have not been informed.

All the discussion we had at that time is also the reflection, sometimes, of a lack of knowledge of practice. Some people being informed of the right to go and come will not necessarily immediately understand, in a state of stress, what it means or will not necessarily decide to leave, because they have intelligent and consistent things to say.

In your opinion, Mr. Minister, you answered us this: "It is the role of the lawyer to inform the person of this right." This argument would hold the way if access to the lawyer was not optional. Now, at this stage, when, at the police station, it is said to a person, who is not yet deprived of the possibility of going and coming and who could very well get up and go, that he has the faculty to resort to the assistance of a lawyer, it is evident that this person must feel the need. However, it is not necessarily informed about all of its rights.

It is therefore only indirectly that she could be informed, through a lawyer – and you can rely on lawyers to let them know what’s going on – that she can get out, silence, or not incriminate herself, etc., in short, that she could have the guarantee that the rights offered at this stage are well respected. I think here in particular of the possibility for a person to leave a police station if he does not wish to answer anything to the law enforcement representative who asks him questions. Only the actual deprivation of liberty guarantees the right to a consultation prior to the hearings of a lawyer or of the permanent service established by the local bar.

Therefore, there are many chances that the case-law of the European Court of Justice, which evaluates the cases in concreto (in the facts), will consider that it is already a deprivation of liberty in which the questioned person risks to self-incriminate without having been able to be assisted by a lawyer.

In the judgment Zinchenko v. Russia of 18 February 2010, the European Court of Human Rights held that due to the circumstances of the case, the accused had been deprived of the possibility to leave freely and that, therefore, the self-incriminating statements he had made had been obtained in violation of the European Convention on Human Rights, since he had not been able to consult a lawyer. I recall that this gentleman had not been formally arrested by the police since he had been arrested during a road check by a police brigade that heard him on the spot.

The MR therefore regrets that its amendment relating to the possibility of going and coming and the reminder of this possibility has not received the support of all the parties signing the bill. It was, however, a precautionary legislative precision that would have enabled, in particular, to protect police services from judgment errors. Indeed, from the moment when the police services formally remind the person who is in front of them that he can go and come, that is to say, that he is free, they cannot be blamed, subsequently, for making a mistake. This is a formal, crucial and verbally exposed moment of whether the person may or may not have access to a lawyer because he or she is deprived of his or her liberty.

The MR regrets that we have not gone far enough, which does not mean to imbalance the balance in favor of the rights of defence, but also to cover the police services of errors of assessment, in their interest.

The second sensitive point relates to the nature of the assistance of the lawyer itself. I must say that when I saw the Senate text come back, I jumped! Mr. Minister, I told you that sometimes some lawyers are more active than others. Some members of Parliament, too, are. As a lawyer, I do not see myself as a Easter candle, next to my client in a police station, without making him a sign, without trying to stop him if he says something that would be unfavorable to his thesis! When I saw the Senate text come back, I read that the lawyer could not make a sign to his client, neither by eyes nor by gesture, that he could not speak to him in the ear, that he could not stop the hearing.

The nature of the advocate’s assistance is obviously not to be a pot of flowers that does not speak, that does not breathe, that does not move next to its client! This is an effective professional assistance to ensure that the rights are guaranteed. The State Council has made reservations on this point in the sense that this bill does not provide for the active participation of the lawyer in police hearings. In fact, the jurisprudence believes that the lawyer must be able to participate in the discussion of the case, to support the accused in distress, who begins to cry, to brag or who begins to tell anything. This also happens in the courts.

The MR has fought firmly – unfortunately in vain – to make certain amendments pass. In the end, we accepted – and I return to mr. Van Hecke – to pass an Ecolo amendment, similar to ours, which allows the lawyer to request a 15-minute interruption during the hearing in order to talk again with his client. Mr. Van Hecke, if I had not supported your amendment, no one would have spoken about it, except you, and we would not have had a consensus on this aspect of things, which is very important, in the advancement of the rights of defence and the assistance of the lawyer.

We look forward to this small progress. But it might have been more cautious to allow the lawyer attending the hearings, during custody, to submit written conclusions at the end of the hearings and to consult the minutes of hearings that would have been made before and which the lawyer would not have been able to attend. This is a choice dictated by the need to ensure the effective conduct of the investigation. We have tried to move firmly, precisely, in a larger definition of the rights of defence and, at the same time, to keep the judicial and police apparatus with practical possibilities to work.

I am not saying that it is impossible to go further. Some want it and the text will evolve; moreover, jurisprudence will help it. Per ⁇ this is an interesting track to dig for the future in terms of the effective assistance of the lawyer to his client during the hearing.

My last point concerns the fundamental problem relating to the sanctions of the right to the lawyer.

The State Council has been very clear about this: in case of violation of the right to assistance, the law must provide as a sanction that statements made in violation of guaranteed rights cannot – underlined in the text – in any case be used to condemn the person concerned. The State Council leaves no doubt that any element obtained in violation of the Salduz rights must be dismissed by the judge.

The MR welcomes the modification of the texts coming from the Senate: they were contrary to this principle since they argued that "the hearings conducted in violation of the Salduz rights could not serve in a determining and exclusive way to base a judgment of condemnation". The State Council went further.

We are pleased that the Chamber Justice Committee has adopted, in particular at our request, the clear attitude of the State Council, saying that there was no question of based a conviction, in any way, on a hearing record that would not respect basic rights.

The MR also ensured that the original scope of the sanction, as delimited in the Senate, was reintegrated into the text. It is in fact fundamental that this radical, very clear sanction applies in the case of a conviction following the breach of the obligation to inform the witness, who becomes a suspect, of his right to consult a lawyer.

On this point, I would like to cut off the wings of a duck, who continues to run and who is bald: “The poor policeman will not realize the moment when the questioned person will begin – he, imagine it without telling him – to be charged with charges that could lead to a condemnation in his boss.” In other words, the witness will pass from the status of witness to that of suspect.

But it happens in the head of that "poor policeman, who understands nothing, who is overwhelmed": I have heard unbelievable things! It should be remembered that our magistrates, our police officers, especially since the reform, work professionally. From the moment a police officer feels it, during the interrogation, he can do it: he can even ask the King’s Attorney since this is how it actually happens. During an interception, the policeman works with the prosecutor’s office and asks him what his instructions are. If the parquet indicates a certain direction, things are clear and the border clearly marked.

There was therefore no need to evacuate the penalty for such a fundamental right since at that time the witness becomes suspicious and must, in view of the law, receive the assistance of a lawyer. I can see that mr. Giet wants to intervene.

I understand that there are many ways to present things and you present them as you hear them. I also would not like that one might consider that in my remarks, since except for error on my part, you refer to it, I can qualify the police services as incompetent and unable to realize what is happening.

On the other hand, you were there as I was when they themselves told us during their hearing that they did not want to turn into "legislators" and have to decide themselves, in the fire of action, in which article, in which paragraph of the law they are situated. My speech was meant to account for this concern and ⁇ did not constitute a negative judgment on the police services. This is what I wanted to correct in what I just heard!

Thank you Mr. Giet. I am very pleased to hear you also defend the police services. These people – you know me too – are quite capable of reading a law and enforcing it. In the doubt, since it is an executive force, they are part of the executive, they appeal to the prosecutor's office and obviously, the doubt is raised. I imagine that this teamwork should allow the legislation to apply very correctly on the ground.

In any case, we must not let the texts say what they do not say, we must not create uncertainty and confusion but the more accurate the text is, the more clearly our police and justice professionals will apply them, for the benefit of everyone and first and foremost for the benefit of the person arrested. I know you are sensitive and I too.

I will conclude by saying that the lack of issuance of the letter of rights has been deliberately forgotten. The failure to transmit the document of the hearing within the month following the hearing is not subject to a penalty because it was intended to avoid encountering difficulties in practice. It can be effective only after the adoption of a royal decree specifying its form and content. Furthermore, it is a measure taken in advance of European legislation.

With this reservation, we believe that providing the penalty for non-compliance with the situation of the person who passes from witness to suspect was an essential element for us. This will prevent that in this situation there is no lawyer and that the hearing that would take place in violation of this right serves to a judgment that condemns that person.

In conclusion, I believe that the bill provides an answer, for now, balanced in view of the theses yet very distant from each other on the issue. We will see at use whether the chosen system was or was not adequate. But personally, I think it is overall. Of course, he will have to do his small illnesses in practice.

Mr. Minister, we hope that you will meet very soon – I think it is already done – the bars to see to what extent all this can be financed so that this legislation finds to apply, when it will be definitive, because it must return to the Senate.

I think that the House and the Senate have quickly, in a difficult context and a very complex matter, accomplished a creative work attempting to best respond to the jurisprudence of the European Court of Human Rights.

You will have understood, dear colleagues, Mr. Minister, if this text is not perfect for everyone, for reasons sometimes very opposite, it has the merit of existing, and it must exist. We have no choice. It is primarily a response to the criticisms made by the European Court of Human Rights against Belgium. On March 2, 2010, the European Court of Justice issued a warning in the Bouglame v. Belgium case. The work carried out in the committee allowed us to adopt several reasonable amendments which, in my opinion, significantly improved the quality of the text.

Discussions of lawyers will always take place – and it is a pleasure – around the conformity of this text with the case-law of the European Court of Human Rights or about its feasibility. Dear colleagues, let us keep the pleasure and wait for the future that will surely allow us to answer all these objections.

The Minister agrees to keep the pleasure.

Mr. Speaker, it was my colleague Stefaan Van Hecke who followed the Salduz work for our Ecolo-Groen!. He fully relayed our point of view in his speech but I would like to come back on a few points.

Today, we will adopt the proposal for a law called Salduz which provides for the modalities of assisting a lawyer when interrogating his client. Any suspect can therefore benefit from the assistance of a lawyer from the first interrogation by the police. The Belgian legislation should thus be in accordance with the international standard created by the judgment Salduz of the European Court of Human Rights which, since 27 November 2008, imposes this assistance of the lawyer. This judgment is based on Article 6 of the European Convention, which guarantees the right to a fair trial.

Without this bill, Belgium would in fact at any time risk a new conviction and especially the invalidation of the proceedings. All the police and judicial work could then have been reduced to nothing.

During this debate, the Ecolo-Groen group! He defended the idea of a broad interpretation of the Salduz judgment. Indeed, the issuance of the arrest warrant remained, despite successive reforms, an area of non-law. The man who appeared before the investigative judge was alone and was not entitled to the assistance of a lawyer. However, the ECHR had condemned many countries for violating the right to a fair trial for the same reason.

This was the case in the Salduz v. Turkey case, as the Court convicted Turkey for violating the rights of defence because statements made at a time when the assistance of a lawyer was impossible had been used as evidence. This decision, made unanimously by the seventeen judges, is not isolated, but comes to complete an evolution initiated by the European Court of Justice for about fifteen years. In fact, about ten years earlier, the Murray arrest was returned. Article 6 normally requires that the accused may benefit from the assistance of a lawyer from the early stages of the police interrogation, especially if national legislation binds the attitude of the accused, during the initial phase of the interrogation, to decisive consequences for the prospects of the defence during any subsequent criminal proceedings. Following that judgment, the ECHR’s position remained virtually unchanged until the Salduz judgment.

In Belgium, a first step in this direction was taken by the Court of Appeal of Antwerp in a judgment of 24 December 2009 by which the Court recognised the right to the assistance of a lawyer from the first interrogation, based in particular on the seriousness and nature of the facts accused of the suspect. Jurisprudence has long held that the Belgian system offered sufficient guarantees to counter the absence of a lawyer during the first hearings. It is true that Article 47bis of the Code of Criminal Investigation already contained minimum rules to be observed when hearing persons heard as suspects, witnesses or victims. But neither assistance or prior interview with a lawyer nor audiovisual recording is part of it.

The Supreme Council of Justice, in its opinion of 24 June 2009 on the issue of the assistance of a lawyer, was also very informative on this point. “Convinced of the limited and often theoretical nature of the rights guaranteed by our current procedure, and in particular by Article 47bis of the Code of Criminal Instruction, if they are examined in the light of the teaching of the European Court of Justice, the CSJ proposes that the person deprived of liberty has the opportunity to interview with a lawyer before the first hearing and that it is the subject of an audiovisual recording.” So many elements were present, both at the European and national level, to venture us in this conformity of our law.

That is why our group also submitted a bill to alleviate the Belgian deficiencies. It went beyond the opinion of the Supreme Council and adapted Belgian law to the case-law of the ECHR in its maximumist interpretation, as it guarantees the greatest legal certainty in domestic law, putting Belgium at risk of future conviction by the ECHR.

Today, we have a compromise text, of course, but it does not go far enough to our sense. We are not the only ones to regret this, I mean as proof the statements in the media of the Legal Aid Bureau as well as the announcement of their demonstration on June 21. Conscious of the need to comply with the Salduz judgment, the French-speaking lawyers took the lead by organizing this assistance themselves during the interrogation before the judge of instruction. In the judicial districts of Wallonia and Brussels, lawyers have arranged stays to provide this assistance to their clients, in sometimes very different ways, depending on the districts and according to the degree of collaboration of the judges of instruction. This means that so far, lawyers have provided these stays free of charge. They had hoped for a retrospective defraud but the minister meant that legal aid would only be adapted when the law came into force. As lawyers take the lead in political reforms, they feel blurred or even punished. This is at least what they said in the media.

The Salduz reform will therefore transform our criminal procedure and orient it towards a more Anglo-Saxon model with, in the eyes of some, risks. But the vulnerability of people interrogated by a police officer or a judge is a reality; it will now have to be taken into account. Salduz will make justice more equitable.

However, we have re-submitted amendments in order to get as close as possible to what the ECHR says. During the debates, my colleague Van Hecke insisted heavily on the fact that for the clarity of the course of the hearing, the person to be heard must know whether he is as a witness, complainant, victim or suspect. Such clarity is also beneficial for investigators, especially if the quality in which the person is heard changes during the hearing. The rights of the questioned person are not the same if he is heard as a person suspected of committing an offence or as a witness or complainant. However, this cannot prevent the quality in which the person is heard from changing during the hearing.

With regard to audiovisual recording, if we give priority to the presence of the lawyer during the hearings, we believe that when a lawyer is absent, the interrogator must offer the person being heard the audiovisual recording of his hearings. The Supreme Council of Justice, in its judgment of 24 June 2009, did not say anything else.

With regard to the extension of the detention period, we want to follow the principle that the implementation of the case-law of the ECHR requires a practical and effective solution. It can therefore be justified to assume that such a solution does not require the extension of the period of detention for a maximum of twenty-four hours and that the period of detention for a maximum of twenty-four hours can be extended only in proportion to the time necessary for the implementation of the assistance by the lawyer of the questioned person.

Finally, we also redistributed amendments to prevent hearings conducted in violation of paragraphs 2 to 5 from serving as evidence for the purpose of condemning the questioned person. My colleague has already detailed them in his speech.

Mr. Speaker, these are the reasons why this text constitutes a real advance but in our sense insufficient for the rights of defence to be respected. This is what the ECHR says. That is why we invite our colleagues to support our amendments.

Thank you Madame. I now give the floor to the Minister of Justice.

I would like to thank the reporters for the comprehensive, correct report. As a result, I do not have to recall a number of points, including the debate on the nullity and the duration of the 24-hour detention, which was widely discussed in the Senate and in the Chamber and on which the State Council gave advice.

We stand ahead of the discussion and hopefully also the adoption tomorrow of a recommendation of the European Court of Human Rights, which we urgently need to translate into Belgian law. There needs to be clarification in a matter that has been the subject of very contradictory statements for a long time, as well as many initiatives on the ground. We must not lose sight of the fact that a lot of people are already taking steps on the ground. In various presentations, references were made to what the police, the prosecutor’s office, the investigative judges and the lawyer’s profession are already doing. They are already anticipating legislation; it is now up to us to address things in a coherent manner, hence the urgency. We have a duty to come up with a clear law in the short term. I would like to thank the Justice Committee for the extensive debate we have held on this subject.

I will limit my exhibition to two points. The first concerns the balance that has been found and the way we have made a great distinction in the law, the second concerns the costs and the legal profession.

First, we made a balanced choice. I explain myself more closely. When in the course of a procedure someone is suspected of a crime, there are several steps. We anticipated European directives in which we translated the letter of rights into Belgian law. In this case, everyone, regardless of his status at that moment – one cannot always predict in what capacity one is being questioned – has certain rights and those rights must also be communicated to everyone. That is the basic step and there is no discussion about it. It is the easiest form of information that is given to everyone.

On the other hand, essentially according to the judgment-Salduz – which is the most difficult step – a person who has been deprived of his liberty, i.e. at the guard à vue, must receive legal assistance by a lawyer present. This is also not subject to discussion. We all agree that we should give the lawyer full rights. There is necessarily a certain formalism, a certain obligation to adjust, in the sense that one must give the opportunity to consult, to interrupt, the lawyer must be able to come and so on. He must also be able to be present. There is no debate on this.

Only about how we arranged the intermediate category, the fundamental debate took place. The State Council has not backed us in this regard. It is the fact that the suspect has only a right of consultation. We do not have a maximalist vision. So, not for every suspect or at every hearing the lawyer must be present. We did not include this in the text. This is not feasible and not feasible. This is not necessary according to the judgment-Salduz. There should be the possibility to consult a lawyer. The accused must therefore be informed that he has the right to consult a lawyer. The hearing should be interrupted in order to consult a lawyer. There is a right to come and go. That is the essence.

We have found a balance between the easiest form of legal assistance for everyone, the most difficult form of legal assistance when someone is detained, until when it must appear before the investigative judge, and legal assistance between, when one is suspected. I think that balance can be defended.

Of course, it is also evolutionary. We will examine how the provisions are applied on the ground. I think we should give the opportunity to practice and then we will see it evolve. We will also examine how European and other national jurisprudence develops in this area and how the Court of Cassation and the European Court of Justice respond further. We will have to see if there are incidents or not. We must recognize its evolutionary character. We must see how the rights can be properly applied and how it is assessed. I have already said this in the past, and I repeat it again very explicitly: we will have to evaluate the provisions.

We will therefore immediately ask the Criminal Justice Policy Service to prepare for it, so that we can ⁇ know the first results within the year after the entry into force, to check whether it is running correctly in practice, whether it is going in the same way in the different districts, to hear the comments of the various actors of Justice. So we will have to see how one and the other develops.

We will also have to look at the practical aspects. There is, in fact, the demand for premises, the demand for audiovisual recording, the question of how the courts are organized. All of this should be taken into account in the evaluation.

In short, the choice for balance, which we make, which was made in the Senate and which we confirmed here with the Council of State, is, in my opinion, a good choice. However, we must remain critical. We will evaluate. Within the year we should receive a report from the Criminal Justice Policy Service on this.

The second point of my presentation concerns the costs and, in particular, the costs associated with the legal profession. I think I need to extend this issue for a while. The lawyer is critical. The legal profession is of the maximalist school and wants to go very far.

On an annual basis, if we count the number of correctional files, 800 000, in the number of police files, 1.2 million, it is about 2 million files in which a suspect is interrogated. If you have to invite the lawyer every time, we can provide the lawyer’s profession with a lot of additional work. I think we will have to find lawyers to do all that work.

I just want to say that the cost of it would also be very high. It is not possible today to have all suspects assisted by a lawyer every time. However, we need to look at how the current system can be affordable.

For good order, I would like to say that in 2008 we allocated approximately 48 million euros for second-line aid. This has increased by 45% in 2010. Today it is 68 million euros. So there was a huge increase of 45% in the short term, in two years. I am also very grateful for this from the OBFG.

That also allowed us to evolve to 26.91 euros per point for 2010. Given the increase in the number of points in 2011, it is 25.39 euros. That is a fair figure, especially since we were still at 18 euros in 2001.

Our government has made efforts. Serious steps have been taken to make additional resources available to the legal profession under the second line assistance.

It is a closed envelope. This is of course the subject of the debate.

It was in January 2010 that I established a protocol with lawyers (OBFG and OVB): it was necessary to set boundaries, look for means, find a control system, demand more transparency and more control, discuss the points to remember, on quality. This protocol has been executed partially; part of it has not yet been executed. Therefore, I hope to continue the debate with lawyers on the evolution of legal aid in its entirety.

A comprehensive discussion is essential. In the Justice Committee, other points were raised regarding legal aid. I hope that, as soon as possible, we will be able to hold this comprehensive debate: it will affect the legal aid and the costs incurred, thus the intervention of the government, currently 68 million euros per year.

So I will now continue the debate, because the big question is not only what the normal legal assistance is, but also what we do with the services delivered. I have said in the committee, and also at other times, that I can only strive for a law that hopefully will be passed as soon as possible, because then we know which services should be delivered and which not.

Following this, I undertake to determine as soon as possible, and ⁇ before the entry into force of the law, by ministerial decision, how the points will be fixed for the various services delivered. On this basis, in the future, all the services delivered from now on can be recorded without any problem. This is not the problem.

Now the question of retroactivity remains. It is not so easy to simply say that we will record the achievements of the past. How is this proven? There have also been several statements made about the commitments to do that for free and to take that as a responsibility from the lawyer’s profession. Of course, there is also the question of whether the lawyers were paid or not and whether or not it was pro Deo. So there is a whole debate.

That is not so easy, but I would like to commit myself to, once the law in the Chamber is approved, to sit together with the OBFG and the OVB to look at how we can find a solution for the future, for the whole of legal assistance, but also how we can come to a reasonable solution for the past. I have no problem with this.

Collega Verherstraeten is no longer present, but I have actually provided certain resources that can be added to the budget this year as an additional, new initiative. I have to put this into practice on the basis of the law. On the basis of these additional resources, I will examine how the debate with the legal profession can be conducted and finalised.

I come to my conclusion.

First, I thank you for this debate. I sincerely hope that after two years of work, we can finally reach the conclusion of this proposal. You should know that we started last year before the elections. Then there were hearings in the Senate, but as a result of the elections there was an interruption. After the holiday, we delivered a non-paper to the Senate. We have been working a full parliamentary year, in the Senate and in the House. Advice has been requested from various associations and organizations. The State Council has given its opinion. I hope that we can now finish and that we can make this law operational. I would like to thank all those who have worked on it.

Second, I am committed to taking care of the resources. I will also look at how we can evaluate everything within the year, how we can further evaluate the balance we have found, and how we can further optimize the dossier, if there are reasons to do so.

Finally, I call on everyone to participate in the implementation and to be loyal to the law that will be voted on.

The Prosecutor’s Office will prepare a circulation letter and the police are already working in full. I am confident that this will continue to be done correctly with them.

We will see how the investigative judges will continue their work. It has already been largely implemented. A consultation with the lawyer is urgently needed.

I have been sued by, among other things, the OBFG and the OVB before various courts. I hope that Parliament will help me and give me a law that will resolve the case, otherwise I will be convicted again.

I find the style strange, but that only means that the Salduzdossier is now urgently handled. The man from Turkey, who is so famous and does not know that, brings us a big step forward in defending the rights of everyone who is suspected, so I hope it will be a positive contribution to a better development of our democratic State.

July 19, 2011 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, compared to the original text, there were two changes: the proposed entry into force on 1 January 2012 and the way to use the data collected in favor of appearances where the formal and substantial conditions relating to the presence of a lawyer were not met.

It is amazing how things go well!

I would like to clarify once again that when voting on a bill that tends to incorporate in our law the case-law of the European Court of Human Rights, which tends to give more rights to a person subject to a criminal procedure, it is totally absurd to remove on this occasion in part an essential constitutional guarantee in our democratic system that constitutes the 24-hour period of guard. I do not understand the logic that governs our work, which is why the PS group will again abstain on this text.

The entry into force of the proposed legislation is extremely urgent. Nevertheless, I am satisfied that in the House we have had the wisdom to delay the entry into force of the law, allowing the actors in the field to do the necessary in consultation with the competent ministers. We have sought a balanced solution so that the cost for society can remain within balanced boundaries.

Mr. Speaker, this text, made necessary by the abundant jurisprudence of the European Court of Human Rights, has come from a work done by the Senate ex nihilo, that is, starting from nothing. In this context, without a guideline since it is the parliament that assumes its responsibilities in the absence of a government project, it is always difficult to find the justified balance between the rights of defence, on the one hand, and the functioning of the state, police and judicial apparatus, on the other.

At the first return of this text from the Senate, we had the opportunity to browse through the opinion of the State Council. On this basis, the MR had insisted for an increased presence of the lawyer and, in parallel, if he had not been able to assist his client, so that the pieces taken in violation of this fundamental right are completely excluded from the follow-up of the procedure.

This element of radical sanction, inspired by the Council of State, has now been redesigned by the Senate in a formulation inspired by the French formulation. However, this is part of a global French context that provides for the presence of the lawyer only at the stage of the investigation and not with the police interpellants. This is another context.

I therefore fear that this formulation is insufficiently radical, not only for the rights of defence, but also to avoid a legal risk of procedure and trials in the trial. That is to say that, when a case comes before a court of substance and that, for one reason or another, an element of that file, such as a hearing record, or even an initial hearing record, would have been taken in violation of the fundamental rights conferred by that text, it should not be excluded. Indeed, the sanction rejected today is not radical: it is simply prescribed that "you cannot base a conviction on the only element of this vicious document". That is why I fear divergent interpretations throughout the trial, at the risk of exacerbating it unnecessarily.

This is why the two members of the Justice Committee MR, that we are Mr. Maingain and I have submitted an amendment to try to bring back to the initial position already defended in the House at the first arrival of the text from the Senate after the opinion of the State Council. This time, we did not get a majority.

It is therefore the formulation inspired by French law, in the context that I have developed for you, which is retained in the text.

The future will tell us whether this text is sufficiently balanced, whether it ⁇ ins this fundamental balance between the state apparatus and the rights of defence, and whether it does not aggravate the trial.

The MR group will support this text but Olivier Maingain and I will abstain.

Mr. Speaker, the establishment of the Salduz Act has become a ⁇ difficult childbirth, with two discussions in the House and two in the Senate. It now adds an entry into force which is postponed to 1 January 2012.

We have already discussed the draft law. Is this law perfect? Certainly not, but it is of course necessary that we adopt the necessary legislation to bring the principles of the European Court of Human Rights into our legal system. Belgium is not the best student. Of course, we are always doomed to follow the European Court of Justice, but Belgium is doomed to pursue, because every time we make a decision, we are already a bit behind.

Mr. Minister, colleagues, I refer to an article by Professor Vermeulen that recently appeared in the Gazet of Antwerp and Het Belang van Limburg. For example, he points to a European directive that was approved by the European Commission on 14 June 2011 and which goes far beyond our legislation. The entry into force is scheduled in 2013. Therefore we still have time for this.

It may well be that, due to the evolution in the jurisprudence of the European Court of Justice, in a few months or years we will have to make new adjustments to what we will approve today or that we will soon have to make new legislative changes, based on European initiatives. Therefore, today’s vote will not be the end point, but may be a starting point for various discussions in the coming years.

Ladies and gentlemen, there are three points left for us.

First, the term of 24 hours, which is extended to 48 hours. This issue has been mentioned several times in the committee and in the plenary session. In our view, this amendment is implemented in violation of the Constitution. We will see in the future whether the Constitutional Court will ever decide on this, but it remains a crash point for our group.

Secondly, there has also been a lot of discussion about the regulation of non-compliance. An important new provision is the introduction of the letter of rights. However, it is not intended to associate with nullity or sanction. That remains a problematic situation for us, because just that letter of rights, telling people what their rights are and telling them that too, is quite essential in this whole process.

Third, it was originally planned that the law would come into force on 1 October, but that has now been postponed for three months, to 1 January 2012. We have been able to hear from the minister that this happened at the request of the police services, which are also very happy to refer to the lawyers. Apparently, both are not fully ready to start in October. I do not think that is really credible. Three months should be sufficient to enable everyone to prepare for it. This is incomprehensible, especially for lawyers.

They have known the law for a long time, and they have applied it for a long time, even before the law was made. They were also a requesting party, insisted and even wanted an extension of it. They wanted much wider rights. Now they would be the requesting party to postpone the application again until 1 January, while before the courts – let’s be sure – they will ask for the nullity of procedures when the rules have not been observed. They will also ask before 1 January. I think this is a hypocritical, incomprehensible situation. We should have remained in our position in order for the law to enter into force on 1 October.

A positive element is, of course, that in the meantime there has been a arrangement on the remuneration of lawyers.

For all these reasons, we will again abstain on this point.

Mr. Speaker, I will be very brief because the colleagues have already said enough that it was a very difficult balance exercise to draw up this legislation. This was also not evident in practice. For one it goes too far, for the other it does not go far enough. As legislators, however, we must be aware that in the meantime the sentences and the destruction of convictions continue to come. We must give an answer to that. Mr. Minister, as I said in the committee, I believe that an evaluation of this legislation will surely be urgent. We should not wait too long with this. Once this works in practice, it will be very quickly revealed where the pain points are. We must then, as legislators, be ad rem and respond asap and adapted.

Mr. Speaker, we continue to regret that supranational institutions disregard the peculiarity, achievements and guarantees of our own legal system. The only light point we see in the latest amendments to this law is the fact that the entry into force is then delayed for some time to let the actors in the field prepare for the highly changed situation that will arise, not least for the police services. With full conviction, we continue to vote against Salduz.

Mr. Speaker, colleagues, I would like to thank everyone for cooperating in approving this important draft and closing this important file before the recession.

We have already had a lot of debates on this. There was the original proposal-Defraigne that then came to the Chamber, then went back to the Senate and came back to the Chamber. This is the last discussion and hopefully also the last vote.

I think we have made a right, balanced choice between, on the one hand, the European principles, the Court of Human Rights, and, on the other hand, feasibility and affordability in the field. I think we are also consistent with what is happening in neighboring countries.

It is right that we now need to be operational and evaluate as soon as possible. A first evaluation was requested within the year. The Department of Criminal Justice will also do this.

I would like to note three other small points.

First, Mrs. Marghem, the nullity is a choice. Usually some colleagues are very happy when we choose the French route. We have chosen the French way here, but you are not happy. You will abstain.

The debate on invalidity is a ⁇ delicate and very difficult debate. I think we find a middle between the comments of the State Council and comparative laws in neighboring countries. We will have to look at how we deal with this in practice.

I think we have a good legislation. The law that was rewritten, also in the Senate, is also better written in my opinion. I think we have rightly confirmed this in the Chamber. We will see how the practice goes. I have full confidence in it.

Mr. Van Hecke, the European Regulation is an initiative of the Vice-President of the European Commission, Viviane Reding, who launched a text containing a number of proposals that have not yet been discussed in the Council of Ministers and the European Parliament.

Last Friday I held talks with the full administration of the Directorate-General of Justice on these texts and on how this should be addressed further.

It has also been committed to come to look at the practice, to see how it works concretely, before taking new steps that go even further with regard to the presence of a lawyer.

This is a debate that is still ongoing in Europe. The Council of Ministers must have the last word on this issue. The first word has not yet been spoken. So we still have the chance.

Finally, before the entry into force we have anticipated 31 December, i.e. 1 January 2012. There are several practical reasons for this. I would like to clarify again what the main reasons for me are. There are arguments for the police to move further on the ICT level. There are also the interpreters, who we want to sign a deontology.

The main reason, however, is that after consultation between the lawyer’s office and the police, we have decided that the way in which the contact between a police officer and the lawyer’s office should be established would be through an active call center.

The lawyers had organized themselves in a sort of passive methodology, saying that they would simply make available the lists of the lawyers' names and that one had only to look for someone. I have thought that it would be unacceptable for the efficiency of the operation, both for the police, the prosecutor’s office and the legal profession, to do so in such a passive way and that this must be done in an active way through a single telephone number and an active call center where one can be assisted immediately to obtain a name, to be connected and to obtain through that permanent service also certain advice when one wishes to renounce the presence of the lawyer.

This is a choice that we have jointly made and that will contribute to a better implementation of the entire law. So it is not that I want to throw the stone to the lawyer’s profession, it is a common choice of all involved parties.

Mr. Speaker, I thank everyone, I hope that we will be able to operate now and I have committed myself to collect the necessary credits within the government now so that everyone can start immediately and that this law can indeed be properly applied in accordance with European principles, also in the defense of those who are suspected at a given moment. I would like to thank everyone for their cooperation.