Proposition 54K0540

Projet de loi modifiant le Code d'instruction criminelle en ce qui concerne la possibilité de transmission d'une maladie contagieuse grave.

General information ¶

Authors

Open Vld Sabien Lahaye-Battheu, Nele Lijnen, Carina Van Cauter

Submission date

Oct. 30, 2014

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

AIDS infectious disease medical examination sexual violence victim criminal procedure

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP DéFI ∉ Open Vld N-VA LDD MR PVDA | PTB PP

Abstained from voting

VB

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Discussion ¶

July 8, 2015 | Plenary session (Chamber of representatives)

Full source

The reporters are Özlem Özen, Sophie De Wit and Stefaan Van Hecke.

I refer to the written report. Since my two colleagues have abandoned me, I cannot give a real report.

Mr. Speaker, this bill is, at first glance, a proposal like any other, but yet it has a special meaning and we note a deep human feeling temperature. In fact, it fits into a long series of legislative parliamentary initiatives, including the work of the special committee on sexual abuse, to improve the position of the victim of sexual abuse.

The retention of attention to the harm caused by sexual violence on people has led, among other things, to the extension of the limitation period. Additionally, there was a right of speech for aid workers and the use of the Sexual Aggression Set was encouraged. The emphasis was placed on a good flow of information between all involved actors. I would like to mention just a few of the measures taken. In other words, a lot of work has been done to address this issue, to make things change concrete and to make victims of sexual violence feel that there is social involvement in what happened to them and that they are not alone or unprotected in front of it.

However, there is still a lot of work to be done in the store. We must remain vigilant and put the latter ever higher in the legislative work. We must cover in legislation all aspects and consequences of sexual violence and more generally of crimes that harm the physical integrity of others. All aspects are undesirable and therefore they all need to be removed and answered.

According to recent figures from the prosecutors, in 2012 approximately twelve thousand dossiers were opened concerning assault on honour or rape. The victims suffer not only moral damage, but often also serious physical injuries. In addition, they are still at risk of being infected with a viral condition, such as HIV.

In some cases, the probability can be up to 1 in 100. Of course, it is important that the victims are treated appropriately immediately and that they receive antivirals within 72 hours. The cost of the treatment is up to more than 1 000 euros per month. Additionally, the medication may have serious side effects and not only hunt social security, but also the victims themselves, simply because the suspected perpetrators refuse to undergo a HIV test or a test for other transmitted diseases. This is ⁇ true of acts of sexual violence. However, the same applies to other forms of violence, for example when an officer is bitten by a detainee or when an incident occurs in an emergency.

The bill, which we are voting here today and which was unanimously adopted in the Justice Committee, therefore aims to require a suspect or a third party to undergo a test in order to avoid unnecessary and expensive preventive treatment, but above all to free the victims from weeks of uncertainty and fear. Through the test, it can be determined whether the persons are carriers of the HIV virus or of other serious infectious diseases such as hepatitis B or C, which may be transmitted to the victim at the time of the crime. The premise is that the suspect voluntarily cooperates with the blood collection, but in case of refusal, the King’s Prosecutor may order the removal of a quantity of the jaw mucosa, although with the permission of the investigative judge. In case of refusal, we deliberately choose the saliva test. Thus, we avoid the risk of infection of a doctor or of accompanying judicial or police personnel in the event of the suspect’s resilience in a blood sample.

It is not intended to link criminal consequences to the results of the analysis. According to doctors, it is almost impossible to prove that the suspect has transmitted the infection to the victim. However, we can limit the suffering of the victims as much as possible by not exposing them to unnecessary medication when it turns out that there is no risk of infection.

Of course, we also set rules on the communication of the report by the expert who carried out the study, where the results of the analysis are not shared more than necessary for the proposed purpose and where the steels are destroyed as quickly as possible.

We are aware that the new law must respect a number of international and national legal rules, which protect, among other things, physical integrity and the right to privacy. However, those principles provide for exceptions. In other words, they are not absolute if the facts concerned have a legal basis and are responsible in the interests of public order or morality, or are motivated by the aim of preventing criminal offences.

We believe that the new legislation passes the scrutiny of proportionality. As the chairman of the Privacy Committee has already pointed out during the hearings, a blood test is obviously a violation of a person’s integrity. However, the question arises whether that right should not deviate from the same right of the victim to physical and mental integrity. As a victim of a crime, her or her integrity has already been violated, and almost always in a more brutal and violent manner than the intervention required to take the test.

In a reasonable balance of interests between the two interests in this conflict of fundamental rights, it is evident that the claims of the victim prevail over those of the suspected offender or even of the third party concerned. As the text is now drafted, such a blood sample is a limited measure, which hardly violates physical integrity. We also have a number of precedents. Its execution will also be done by a physician, which will provide the necessary guarantees to act professionally, with the least damage.

Personal data may only be collected for specified, explicitly defined and legitimate purposes. The description of the purposes pursued should therefore be so accurate, detailed and complete that it can be properly verified whether the personal data collected are adequate and relevant and not excessive in relation to the purpose of the processing.

The explanatory note to the bill therefore expressly states that it aims only to provide optimal care and support to the victim and does not aim to criminalize HIV or other transmissible diseases and/or to criminalize the transmission of such diseases when this is not done intentionally.

A pilot project is currently underway in the judicial district of East Flanders, Ghent. According to the first signs, it is going very positively.

With our proposal, we aim to create a legal framework and respond to the demand of the field to improve the position of the victims of especially, but not only, sexual abuse.

I hope that our text will get as much support in the plenary as it did in the Justice Committee. It was a heartwarming feeling for me that the classic contradictions that sometimes seem to be embedded in our order in the committee could be overcome. The text was unanimously approved.

Democracy is the art of organized dissent. I also know that the problem of boat refugees and the humanitarian consequences of the ongoing crisis in Greece are of a completely different order, but when it comes to truth and justice, as Albert Einstein said, there is no distinction between small and big problems.

With this proposal, we enhance justice for victims of sexual violence and re-improve their legal protection.

I thank you all very heartily.

Mr. Speaker, I will be brief, because actually colleague Van Cauter has said everything that needs to be said about this text. I will add two or three things.

First, colleagues, this is a remarkable text, especially when one sees where we come from. The problem was identified on the ground. Doctors, police and prosecutors have jointly determined that there is a problem that needs to be addressed, but for which there was no legal framework. We had to start from a white leaf to offer a solution.

It was not an easy thing. Making this law was a delicate balance exercise. Work has been done for a long time. Many amendments have been submitted. Several trails have been walked and again abandoned. We can see this as a collective work in which the majority and opposition have cooperated constructively.

I think vigilance is required. I have continued to ask critical questions in the committee about the possible consequences of one or the other choice. We cannot regulate everything with this law. I think we must remain vigilant so that if problems arise on the ground, we can quickly remedy them.

Finally, I would also like to say, Mr. Speaker, colleagues, that we have also used the second reading in the adoption of this law. We did this not to slow down the treatment, but to make the text qualitatively stronger. This second reading has actually made the text even better. This happened, by the way, at the request of the majority, which is apparently convinced that a second reading can be good for the quality of the texts. It is very important that we have achieved this in the Justice Committee. We have the culture there to accept this and apply it in a positive way.

I hope this can be applied in the field. Hopefully this means a very big support and a step forward for the reception of victims of sexual violence.

Mr. Speaker, colleagues, we had submitted a bill on the issue of a possible infection with a serious disease, HIV or hepatitis. This bill was based on a proposal from colleague Sabine de Bethune, which was submitted more than a legislature ago. However, we have been pleased to participate in the completion of the bill submitted subsequently by colleague Van Cauter.

Victims of a violent crime will be given the opportunity by this bill to quickly get exclusion about a possible infection. This can prevent people from having to take unnecessary preventive medication, which can have serious side effects and is expensive.

The finality of this bill is, therefore, primarily the health and the assurance of the presence or absence of a health risk as soon as possible, without prejudice to the criminal investigation. I think this was the most important element in the whole discussion. This has also been shown in the hearings, in the comments of Sensoa and the Privacy Commission. The finality is the health, not the HIV infection itself or the intention to charge a potential perpetrator by taking this as an element of the criminal investigation.

I think that the many discussions in the committee and beyond, and the hearings, have made a good contribution to the present bill with all the nuances it contains. In particular, this proposal should ensure that clarification can be quickly obtained without objecting to the criminal investigation with the data.

Mr. Speaker, Mr. Minister, everything has already been said.

Mrs Van Cauter, it must be said, there is a stone being moved here. It may be just a small stone, but it is one. Any stone that can contribute to better protection of victims is an important one.

I am very pleased that we have been able to work together on this issue in the committee. I think we owe this also to the victims who have experienced such serious cases.

In this way, we can already offer a solution. A pilot project that has been beneficial in practice can be generalized. We can give this a positive consequence.

I think this is an important bill, no matter how small the stone is.

Indeed, Mr. Van Hecke, the second reading is used in this case. There is a difference between use and abuse, but in this case the second reading was used for the better, allowing the legislation to provide a number of safeguards. It is obvious that this must be done, because each party must be able to be protected in such a situation. I think we have succeeded in this balance exercise.

Mr. Speaker, in order to allow us to return to the Justice Committee for the question/answer session, I will be very brief. I look forward, on behalf of the MR group, to the conclusion of this text, which is the conclusion of long debates already begun during the previous legislature. This is a thoughtful, mature, achieved proposal to which a second reading has been added. Indeed, Mr. Van Hecke, in this case it was especially well used and we look forward to it.

What are we talking about? It is about optimizing interventions in favor of victims. It is known that there is a medical process for, within 72 hours of an aggression, to be able to eventually stop the process of a disease. But one can also make the economy of this intervention if it turns out to be unnecessary because it is care that, for the patient, is physically, psychologically and financially heavy. If, through this system, one can avoid this kind of intervention that would prove useless, that would be a good thing.

We are also pleased that this committee has been able to work in serenity and have resulted in a consensus that has enabled unanimity in this final text. This is a good thing, and as chairman of the commission, I can only rejoice. This is an improvement that is brought to the fate of the victims.