Proposition 53K3065

Projet de loi relatif à la procédure devant la Cour de cassation en matière pénale.

General information ¶

Submitted by

The Senate

Submission date

Nov. 7, 2012

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

higher court criminal procedure

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP Open Vld N-VA MR

Abstained from voting

Groen Ecolo LDD VB

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Discussion ¶

Jan. 30, 2014 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mrs. Minister, dear colleagues, in agreement with Mrs. De Wit, I will report on this project which comes from the Senate where it was originally carried by Senator Delpérée. This text had been drafted in collaboration with the Court of Cassation itself, which had issued a warning signal to the legislative authorities about its engaging in criminal matters.

The Court told us to face a considerable influx of appeals in criminal matters, in correctional matters and in police matters, appeals often unfounded and thus likely to overwhelm the role rather than be subject to substantial debate. The bill aims to remedy this situation by working on criminal proceedings, in particular on the means of access to the Court of Cassation.

This is how the draft introduces the obligation of the intervention of a lawyer in the appeal statement, except in the case of preventive detention, which can always be made by the person himself at the prison office, and especially in the writing of memoirs. These measures should allow for a filter, while respecting the rights of the defendants.

The discussions in the Chamber’s Justice Committee essentially focused not on the purpose of the project but on the obligation to train the lawyer to intervene in this procedure. The Commissioners had expressed a series of concerns: too short procedural deadlines, excessive formalism for the introduction of an appeal, excessive costs for the justiciable, difficulties in conducting a criminal procedure up to the European Court of Human Rights. The Minister replied that the deadlines were precisely considered in order to be able to broadly expose the means and that the required training of the lawyer was in reality only a training in the techniques of the procedure before the Court of Cassation dispensed and not the special training as required for lawyers at the Court of Cassation.

After discussions on these various points, the Justice Committee adopted the bill by 13 votes and 2 abstentions.

On my own behalf and on behalf of my group, Mr. Speaker, we will support this project.

Here is a clear, clear, precise statement!

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker of the Speaker of the Speaker of the Speaker of the Speaker of the Speaker of the Speaker of the Speaker of the Speaker of the Speaker of the Speaker of the Speaker of the Speaker of the Speaker of the Speaker of the Speaker of the Speaker of the Speaker of the Speaker of the Speaker of the Speaker of the Speaker. On the one hand, because we are aware that, in recent years, the Court of Cassation has experienced a significant inflation in criminal appeals. On the other hand, because we know that in about 40% of cases introduced in 2011, no memories had been deposited. Furthermore, because the rate of cassation remains very low in criminal matters, as ⁇ 90% of appeals are rejected.

Therefore it is necessary to act. Nevertheless, my group still has some concerns about this project.

First, we are concerned about the reduction of the time to apply for cassation, while the deadlines are already very short.

Second, the European Convention on Human Rights provides for the possibility of defending oneself. Even if the case-law of that same Court permits that this possibility not be offered in cassation, given the specialities of the proceedings, Article 6 requires that it be ensured that the rights of defence are not infringed.

Third, the proposal now requires the involvement of a specialized lawyer, which has a significant cost for citizens and makes access to justice in fundamental matters even more difficult. Also, the lawyer who followed the case on the merits may not be able to file the appeal in cassation, failing to have carried out the necessary training, while he is most able to defend his client.

My colleague noted that the sanction related to the lack of training of the lawyer, i.e. the inadmissibility of the appeal, was exaggerated and that a list of lawyers with the necessary training should at least be easily available to the eligible, which, unfortunately, is not the case.

We hope that this essential reform will not lead to excessive formalism, which would result in reducing the rights of citizens.

Mr. Speaker, Mr. Secretary of State, Ladies and Gentlemen, I agree that this bill is improving. However, one case was left untouched, even though the Court of Cassation had strongly called upon Mr Duynslaegher to amend, namely the law on special methods of investigation.

On the basis of the law, numerous petitions, fifty to sixty, are filed, and so far, I think, none of them have been approved by the Court of Cassation. Article 416 of the Criminal Procedure Code on the possibility of appeal in cassation was interpreted very strictly at that time. That would only be possible in a final ruling. I remember that from my legal studies. There was only one exception: only when there was a dispute over the jurisdiction of the court, it was the rule that the Court of Cassation could intervene immediately. This is stipulated in Article 416 of the Criminal Procedure Code.

Meanwhile, the small Franchimont Act was established, which led to a large extension of the exceptions of the second paragraph of Article 416 of the Criminal Procedure Code. Immediate cassation is possible in a number of cases, including for purification of so-called invalidities. Thus, there has been a proliferation, which from Article 2 has made an amalgamation or, allow me to say, a bulb store of all possible cassation procedures. Thus, carousels can be initiated in cases involving multiple suspects or suspects. Any suspect may at any time decide to appeal to the Court of Cassation if he or she disagrees with a judgment of the Chamber of Accusation or of the IA. If, on the other hand, the final ruling is to be waited, there is no infringement of the rights of a suspect or suspect.

The consequences are limitations and excesses of reasonable time. Even when there is no limitation or excess of the reasonable period, there is often a period between the facts, trial and final execution of the sentence. This is not logical in the whole spirit of enforcement policy. This leads to the fact that especially the fat fish, the big criminals, who can pay expensive lawyers, resort to it and all the procedures can continue to stretch.

If one had used common sense and had followed the legal logic of article 416 of the Code of Criminal Procedure, one would have taken that point immediately. It is a missed opportunity.

On the rest of the bill we have little to note, but since the point outlined threatens to create class justice, we will surely refrain.

This very technical document was drafted by the specialists. Nevertheless, as has already been said in the committee, there remains one question on our part: the text no longer allows for defence without a lawyer.

Furthermore, you will always need to use a specialized lawyer, who has already received an undefined training. Our colleague Brotcorne noted this in his report, because we talked a lot about it. We also long questioned the Minister in order to obtain clarifications on the exact meaning of the expression and on the content of this training. But she had some difficulty calming our worries.

We were lucky that the former chairman of the Court of Cassation was in the public by chance; he was able to make it clear. He talked about information rather than training. Look at how interesting things are going on in the industry!

Furthermore, having a specialized lawyer and not being able to defend themselves without the support of a lawyer will have an additional cost for the citizen; this risks restricting access to justice and creating a new inequality among prosecutors.

Therefore, we will abstain from voting on this bill.