Proposition 53K2428

Projet de loi modifiant la loi hypothécaire du 16 décembre 1851 afin d'instaurer des privilèges en faveur des victimes d'infractions pénales.

General information ¶

Authors

MR Daniel Bacquelaine, Philippe Goffin, Marie-Christine Marghem, Charles Michel
Open Vld Carina Van Cauter

Submission date

Oct. 2, 2012

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

civil law mortgage damages victim

Voting ¶

Voted to adopt

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

Contact form ¶

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Discussion ¶

Jan. 23, 2014 | Plenary session (Chamber of representatives)

Full source

These two proposals were discussed at the meetings of 9 January, 16 and 26 April, 15 May and 11 December 2013 and 8 January 2014. A full session of the committee was devoted to hearings. This means telling you whether the subject matter was of importance in terms of the objectives pursued and the care the Commissioners took in examining it.

These legislative proposals aim at an ever-increasing recognition of the victim of criminal offences who is facing, even in the most serious cases, the almost impossible recovery of the amounts to which he is entitled as damages and interests. Indeed, the state, which enjoys a privilege, and even the lawyers of the convicted, are always paid before the victim. Judicial costs, and they are sometimes significant, especially in large cases, will be payable before any other creditor, except those recognised in this article 19 of the Mortgage Act.

The bills introduced a privilege of both furniture and real estate, as long as the convicted person is not completely insolvent, for the benefit of the victim on the property of the convicted person in payment of damages and interests. The privilege of the State with regard to the costs of proceedings arises from Article 2.1° of the Law of 5 and 15 December 1807, whereas the privilege of the lawyer for the defence of the convicted person arises from Article 2, 2° of that same law.

The hearings that were conducted in the committee allowed to amend or improve the text on a legal level, thanks in particular to the contribution of Pr. Jacques Van Compernolle who suggested changes aimed at greater legal certainty and a more precise framework for the notion of victim, rightholder and subrogation. This hearing, and the discussion that followed in the committee, mostly allowed to limit the scope of the bill to only victims of intentional acts of violence. Since the Act of 1 August 1985, victims of intentional acts of violence or their close relatives may, under certain conditions, apply for financial assistance from the State. The aim of this law was that the state contributes to the compensation of victims if the perpetrator is not identified or is insolvent. Of course, this compensation does not allow the victim to receive full compensation, but it contributes to this. It is actually plain.

The amendment that was submitted allowed to grant a privilege that will be bound only to damages and interests of a victim with a right or indirect victim of intentional acts of violence. The advantage of this furniture privilege will be to be classified in the hierarchy of article 19 of the Mortgage Act before the State privilege in terms of recovery of court costs.

While reluctance had been expressed within the Justice Committee, in particular with regard to a budget deficit that could have resulted for the SPF Justice budget, due to this privilege extended to the victim of any criminal offence, the privilege provided is precisely framed and framed by the elements taken from the 1985 Act establishing the compensation fund. The state budget should therefore not be burdened, as the fund should be able, thanks to this provision, to intervene less frequently than at present. This was also a question from the Court of Auditors, which had been requested to clarify the work of the Commissioners.

As regards the property privilege, it will be registered only when the judgment is flooded in force of thing judged and on the date of the mortgage registration.

This is the end of my report.

Regarding my group’s point of view, he welcomes that this proposal can be voted and therefore increase the measures we take in this assembly to recognize the victims and give them the means to see partially repaired their damage. I express hope that this provision will have as much a symbolic value as, effectively and very directly, concrete in the aid to victims.

Mr. Speaker, Mrs. Minister, the text that is being voted today, in so far as it improves the place of the victim, can only receive our support. The initial proposal went, indeed, far too far for us in that it competed too much with the SPF Justice budget.

The risk for the SPF Justice budget was indeed enormous and let us not forget that it serves to return it and that if justice cannot be rendered, there will be no victim in the legal sense of the term nor author and the judicial truth cannot be established.

Nevertheless, the text has been amended to maintain the objectives aimed at, while limiting the cases of application to the victims affected by intentional acts of violence who are the most vulnerable.

The parallelism with the Fund for Victims of intentional acts of violence helps to better secure the budget of the Department of Justice which is not already in an ideal situation, you will agree.

For all these reasons and in order to improve the fate of the victims, my group will therefore vote in favour of this text.

Every step towards better compensation for victims of criminal offences is a step towards more consideration of their victim status, a step that helps them to rebuild themselves, to turn the page, to move forward. This is especially true for victims of intentional acts of violence, murdered in the depths of their being, physically and psychologically, and who often find it difficult to get up.

An overwhelming finding: today, these victims have no privilege over the assets of their aggressor; they pass after all the privileged creditors. In many cases, when their turn comes, nothing remains in the property of the perpetrator of the criminal offence. A ⁇ shocking situation, you will agree.

A compensation fund for victims of intentional acts of violence can sometimes intervene, but it operates on a flat-rate basis, since all damage is not always encountered, and following a long and tired procedure.

The proposal voted unanimously in the Justice Committee – it must be emphasized – undoubtedly fills a significant gap in our legislation. It creates a privilege on the mobile and immovable property of the convicted aggressor, and this, for the benefit of his victim. This privilege precedes the privilege that the State possesses in the framework of the recovery of judicial costs.

It is a political choice, a heavy and meaningful choice: we have decided that a victim has the right to be compensated before the state. Changes have been made to the original text in order to rally this unanimity; you have understood it through the criticisms of my colleague from the PS.

This is the limitation of the notion of injury. The victim has suffered a physical or psychological injury directly resulting from an intentional act of violence constituting a criminal offence. Therefore, it is the most serious cases that will give right to this privilege. This is a great start. We will see over time whether or not this concept should be expanded.

There are two very important changes. On the one hand, the fact that the privilege cannot benefit the legal subrogate, because it is the victim itself that is targeted and not, for example, its potential insurer. On the other hand, we provide that legal and conventional mortgages previously registered at the time when the decision is flooded in force of thing judged have priority over the privilege of the victim; the opposite could, according to the doctrine, lead to insecurity of third parties.

We understand this argument and we have incorporated it.

The MR therefore welcomes the vote of this bill, which was its priority in matters of justice, at the end of this legislature. This is a significant step forward in terms of rights and the defence of victims’ rights, which is part of the right line of action undertaken by our former colleague and friend, Jean-Pierre Malmendier.