Proposition 53K2934

Projet de loi portant des mesures diverses visant à améliorer le recouvrement des peines patrimoniales et des frais de justice en matière pénale (I).

General information ¶

Submitted by

PS | SP the Di Rupo government

Submission date

July 9, 2013

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Subjects

fine legal expenses claim criminal law confiscation of property

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Discussion ¶

Dec. 12, 2013 | Plenary session (Chamber of representatives)

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I refer to the written report. We will, in turn, speak for our group.

Mr. Speaker, I will be brief, given the advanced hour and the fairly extensive discussion in the committee.

The purpose of this bill is to improve the collection of property penalties and court costs. This is also the title of it.

First, a criminal enforcement investigation will be set up to enable police and prosecutors to actively search for the property of a convicted person — the latter is very important — and then confiscate it.

The idea behind this legislation and its purpose are very noble. It is obvious that Justice is missing a lot of money because recovery is not done in an optimal and efficient way today. The question, however, is whether this measure will be the solution and will be practical. People are now beating themselves on the chest with this measure, but there are things that can already be done.

Before making more legislation and rules, one might need to examine the existing instruments. For example, I think of the criminality of fraudulent incapacity. Wouldn’t it be better to use it, to improve that instrument and to invest in it?

Second, a new procedure is introduced. It is not a simple procedure and there have been a lot of questions asked about this in the committee. You know that difficult procedures can lead to procedural errors. We all know that when a procedural error is made, the whole thing is on its head. That is the risk that this legislation carries.

In addition, a criminal enforcement judge is granted certain investigative powers that an investigative judge does not even have. I think that is quite extensive.

Finally, something that has caused a lot of discussion in the committee is the abolition of the possibility of postponing the declaration of confiscation. Mr. Secretary of State, I see you shaking no, but in the committee you said yourself that it was an interesting track. There was an opinion from the Supreme Council to propose an alternative and work through a deposit. You found it interesting, but you fell out of the air when you heard that advice.

You found that an interesting alternative. The delay is not allowed. There have been enough cases cited to show why it might make sense. You would not want to do that, but you would consider an alternative. You do not do that and you also put that advice down next to you.

What happened, Mrs. Van Cauter? An amendment that provides for the moderation power of the judge, but also that is an already existing instrument.

A lot of legislation is being made to confirm things that already exist. Additionally, no estimate has been made of the cost sheet, nor of the impact on the judicial staff. That staff will go on strike.

Not only do we say that, but the Court of Auditors is also of the opinion that no efficient policy can be conducted without a complete analysis. This advice has also been submitted here, which I am very sorry.

As I said at the beginning of my discourse, the title of this law was a “improvement”. I welcome the goal and I am glad that you take an initiative, but the question is whether this solution will really be an improvement.

Mr. President, Mrs. Minister, Mr. Secretary of State, colleagues, I naturally agree with the Secretary of State, when he states that crime must not pay. I am pleased to find that work and collaboration are salaries. I would therefore like to express my appreciation to the Secretary of State and thank him for his readiness to listen.

When we listen effectively to each other and when we work together, there are opportunities for improvement. I can only say that you have just confirmed that the design has actually improved. You must admit that the majority cooperates, which indeed leads to good and better legislation.

Mr. Secretary of State, I have stated from the beginning of the discussion that the usual means of enforcement in the field of collecting criminal fines should also be improved. In fact, if we keep in mind that only 30 % of the fines and confiscation declarations – I may still be optimistic – are effectively collected, we know that there is a problem.

The problem is situated, if not entirely, in the way the different actors can collaborate. Therefore, you agreed to establish a consultative body so that cooperation and the collection of fines can be strengthened in a general, structural way with the resources already available today.

Mr. Secretary of State, it is obvious that this new type of enforcement investigation, which is useful and necessary, can only be used proportionally and with respect to the right perpetrators. Of course, we are grateful to you for the fact that the instrument will not be able to be used against the civil liability party and that you have accepted an amendment in that sense. This party has not actually committed any crime. It would therefore be disproportionate, unfair and unfair to confront him or her with such an enforcement measure.

An amendment also stipulated that the rights of civil parties will also be strengthened not only in theory but also in practice. They will be able to access the criminal file, so that they also get knowledge of the assets that are being discovered. In this way, they will not only receive compensation on paper, but will also be able to effectively proceed to the recovery of the damages to which they are entitled.

Finally, colleagues, it is not insignificant that the deferred notice with deferred notice no longer exists and that the judge is given a moderation power. That is new, colleague De Wit, because that moderation power now exists only in the money laundering legislation. Now this becomes possible in all cases where a declaration of deprivation is issued or imposed, so that the punishment is indeed proportionate and the reintegration of the punished in society can be assured.

I only have to thank my colleagues, because they have often listened to my advice and to eventually come to something that was acceptable for everyone.

Mijnheer de staatssecretaris, bij de eerste lezing van het ontwerp was de wijn soms zuur, maar als het leven citroenen brengt, dan moet men er limonade van maken. You have permitted it. Thank you therefor.

As far as I am concerned, I will not be as enthusiastic as colleague Van Cauter and colleague Landuyt.

To begin with, the lawyers via avocats.be expressed their very vivid concern to see a text “so contrary to the very essence of the Belgian criminal procedure” – the words are weighed – be adopted by the Chamber.

I will list the reasons why we will not support this project.

First, in the name of a budgetary objective and based on the principle that the legal instruments available to prosecutors, recipients of domains and/or criminal fines, are not sufficiently effective, the project establishes a ⁇ intrusive procedure. This justification is not supported by any serious study, which has been repeatedly pointed out by colleagues of the majority, ⁇ in the debates.

Secondly, this project also establishes a special patrimonial inquiry, an enforcement criminal investigation. As I browse the report, I read a question from Mrs. Marghem: "Isn't a cannon used to kill flies?"

Third, the strengthening of procedures is not counterbalanced by a control mechanism worthy of that name. The fundamental guarantees underlying the criminal proceedings are evacuated, exposing the convict to proceedings that could seriously violate the rights of defence.

Fourth, with regard to the execution of pecuniary penalties, the adoption of the draft will constitute a dangerous shift point towards a system incompatible with the basic rules of a democratic state. Ecolo-Groen was not the only one to report this, but also field actors who were not audited within the committee but whose critical opinions we were able to read.

Finally, any person suspected of an offence still enjoys the guarantees of Article 6 of the European Convention on Human Rights and the guarantees recognised by the law of criminal procedure. It is contrary to these principles to conceive, as the project today does, a right of execution of property penalties amputated by these individual guarantees.

Indeed, if the crime does not have to pay, as colleague Van Cauter said, it is not less that the execution of the criminal penalty cannot be done at any cost, not especially in contempt for the rights of the convicted and respect for the basic rules and procedures of our state.

That is why, Mr. Speaker, we have not supported and will not support this text today.

Mr. Speaker, colleagues, I would like to emphasize once again that this bill is the result of the questions of the College for the fight against tax and social fraud, and especially the demand for better instruments, to ensure that we get better inputs by the introduction of the criminal enforcement investigation in the stage of execution of the final convictions to the confiscation of illegal asset benefits, pronounced in criminal cases. The recovery of fines and court costs may also fall within the scope of this investigation. Therefore, we cancel the deferred declaration with delay, we extend the limitation of the deferred declaration to ten years from now on, we optimize the execution of pecuniary sentences and we create a specialized recipient at Finance, specifically for the execution of the deferred declaration of illegal asset advantages. All this should lead to the fact that in the case of crimes with a significant financial and social impact, criminals will be able to be addressed much better in order to effectively pay for the confiscation of the illegal asset benefits. This should be a goal for all of us.

Mr. Speaker, I would like to thank the members of the committee for discussing a complex whole thoroughly.

I disagree that this should raise the fear that procedural discussions will reappear. This is much more thorough.

I think almost the whole committee agreed that when it comes to convictions, the recovery of funds derived from fraud or criminal actions becomes much more efficient and effective. Almost no one disputes this goal.

When you want the means to fight big fraud, as Ecolo-Groen demands, you have to do it from start to end! The beginning corresponds to the detection and the end corresponds to the time when the penalties are paid. If we continue to say that we go too far and that we need to be more careful, we will never succeed. I'll keep your presentation, I think it's pretty impressive.

I would like to thank the committee members for the positive discussion. On all sides apparently exists the question that even in this case after a conviction, an efficient execution of punishment is ensured.