Proposition 54K1664

Projet de loi modifiant le Code pénal en vue d'incriminer l'entrée ou l'intrusion de toute personne non habilitée ou non autorisée dans une installation portuaire ou dans un bien immobilier ou mobilier situé à l'intérieur du périmètre d'un port.

General information ¶

Authors

LDD Robert Van de Velde
N-VA Daphné Dumery
Open Vld Sabien Lahaye-Battheu

Submission date

Feb. 18, 2016

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

harbour installation offence criminal procedure criminal law penalty

Voting ¶

Voted to adopt

CD&V Vooruit ∉ Open Vld N-VA LDD MR VB

Voted to reject

Groen Ecolo LE PS | SP PVDA | PTB

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Discussion ¶

May 4, 2016 | Plenary session (Chamber of representatives)

Full source

I refer to my written report, Mr. Speaker.

The present bill does not contain a new idea. It is not a proposal that can be catalogued under the so-called stealth policy, but it is a legislative amendment for which the judicial and police services have been asking party for years.

It concerns the problem of unauthorized intrusion into a closed area in ports, which also causes damage to the security of the port area. For months, the ports have faced foreigners trying to illegally cross into Britain, a problem that is well known to all of us and has been discussed several times in the Parliament.

However, it can also involve individuals who enter the port area with different intentions, for example, people who do not take it as closely with our security or who with other ideas do prospecting within the port company.

The range of action of the police and judicial services is currently very limited. They cannot actually act properly against such an intrusion. It is therefore for them to sweep with the crane open. Through this legislative amendment and the increase of the punishment, the public prosecutor’s office can impose a sanction on multiple entrances, thus allowing the law on provisional detention to enter into force. I repeat that this “can”.

It is not up to the legislator to assess the possibility of this. It is up to us, colleagues, to ensure that impunity is eliminated.

This legislative amendment thus achieves a balance between, on the one hand, encouraging refugees to invoke our migration legislation and, on the other hand, punishing the violation of our criminal legislation, where we do not allow the intrusion and the presence without authorization in a secure port area.

It is also ⁇ sad to find that people who are on the run prefer to risk their lives by climbing into a container or entering a ship, while in our country they can get bed-bad-bread and also a fair asylum procedure. It is ⁇ sad that they prefer to cause damage day after day in order to dare the crossing, without the judicial services, in certain cases, being able to intervene.

I will end where I started. It is not a new idea. All ferry ports are faced with this, as was the port of Oostende at the time, where there was still a ferry service. Colleagues Johan Vande Lanotte of the sp.a and Louis Ide of the N-VA submitted such a proposal to the Senate at the time.

However, this proposal has never reached the agenda of that legislature. Now finally yes. This is a very good bill, which is awaited in the workplace. I thank you for your support.

Mr. Speaker, the figures that have been recalled and developed in the committee reflect the port reality to which we cannot remain indifferent. Mrs Dumery’s proposal is, as she has just recalled, part of the continuity of Mr. Dumery’s proposal. Vande Lanotte in 2011 which also aimed to address this problem in port facilities.

The presence of unauthorized persons, whatever they are, in these high-security areas cannot be taken lightly. These sites need to be secure. We talked about parallelism. I think it is also important, as is the case for port and airport platforms, to be able to adequately respond to the reality of these critical infrastructures and those risky infrastructures.

The proposal presented to us today is obviously aimed at enabling judicial authorities who are also demanding to help them address this reality. The MR group will therefore support this proposal for those security reasons related to those critical platforms such as ports or airports.

Those who have read the report will have found that we cannot support the text for various reasons.

People say that we cannot do much today. The only thing we can do, if a refugee destroys a closure, is to prosecute on the basis of a provision of the Criminal Code. Article 545 provides that a six-month sentence can be imposed on anyone who destroys a closure. That is a problem, because the investigative judge cannot detain that person. If he cannot be detained, he cannot be expelled or imprisoned. We must therefore ensure that this punishment is increased, so it is reasoned. The sentence should be increased to one year. This was also intended in the original draft, but then there was a majority amendment, which reduced the penalties again.

What is the finality? It aims to prevent refugees from entering port facilities and thus organize their flight. But what will happen in reality with this text? The current punishment is the basic punishment, in particular a prison sentence from eight days to six months. Therefore, no arrests can be made. Provisional detention is not possible. A punishment of up to one year will only be possible in case of a habit, at night, with two or more persons, and so on. Will an investigative judge who faces such a criminal case move to provisional detention because someone has attempted to enter a port area for a second time? In reality, this will barely or not happen. Is that an adequate answer to the problem? I fear that the answer will be negative.

In addition, attempted entry is also punishable with a prison sentence of up to six months. There is no solution in this text either. So it looks like strong communication. One wants to create the impression that now a law will be passed which will be able to address that problem, but in practice it will hardly come into the house of anything or nothing. As with the previous text, after a year we should make an evaluation to see if that law is functional, Mr. Minister. I fear it.

A second, and for us very important point of criticism is that the description of the crime has become so broad that it can gain a scope that — I hope at least — is unintentional. You know what I’m talking about: entering, into a port facility, without permission. All types of non-violent actions and demonstrations, such as actions by an environmental organization such as Greenpeace against a company located in the port area, will be prosecuted through that law.

This means that in any social and trade union action in a port area, a person who enters a land without permission can be punished. It is said that the prosecutors will not do this, that the prosecutors will use their common sense. I hope it. We have a lot of wise prosecutors. In the past, however, it has already happened that associations like Greenpeace are prosecuted on the basis of legislation that was not intended for them at all. Among other things, I think of gang formation.

One can use that law to break a social action, or as a result of a complaint that can be filed by companies on its basis. There is also a very great danger that this legislation, which aims to control the problem of refugees, will be used against organizations that organize social actions in a peaceful way. We cannot exclude this.

I therefore believe that there is no good legislative work being done here, that this text will not be a solution to the problem and that it will also have unintended effects. Therefore, we will not support this bill.

Mr. Speaker, I would like to reassure all colleagues who did not follow the discussion in the committee after the slightly nuanced presentation of Mr. Van Hecke.

The one-year period is of course of interest to this majority, as it makes it possible to proceed, if desired, to provisional detention if the investigating judge so wishes and the prosecutor so orders. However, there must be aggravating circumstances. These aggravating circumstances were also cited in second instance by Mr Van Hecke. It is about events that occur for the second time, with several persons or at night. We have used it to prevent the happiness-seeker, the asylum-seeker who desperately tries to flee, and rightly, because that is not the intention.

Mr Van Hecke also knows that the people on the ground in the ports — I mean the police services, the security services, the prosecutors and the governors — are asking parties to act. Of course, everything depends on the application of the law. In principle, any law can always be applied if one looks at the letter of the law. It is obvious, however, that interim detention will only be prevented if one is dealing with persons who do not manage it properly and with whom one is repeatedly confronted. It is about people who enter port areas where they can actually do a lot of harm and where they can create a lot of dangerous situations because there are many ⁇ and dangerous installations located there.

At that point, the investigating judge, whether or not promoted by the prosecutor, will be able to assume his responsibility. I assume, Mr. Van Hecke, that he will do it in a thoughtful manner and with a certain balance, at the moment it is really necessary. I emphasize once again that the people on the ground know when it is necessary and when not. We must have confidence in the security services and in the judicial services.

That same common sense will prevail when an investigative judge or a prosecutor must judge whether a syndical or other manifestation was also intended in accordance with the spirit of the law and thus falls under this legislation. Again, we must not doubt the common sense of our judiciary, the security services and the investigative judges who apply these laws.

Let it be clear, even before the report, that this is not intended to disguise trade union movements or natural associations. That is not at all the intention. It goes without saying that these movements too must abide by the law, but therefore they must not necessarily fear a provisional detention by this law.

Mr. Speaker, as I said in the committee, we do not understand exactly what the added value of this text will be if it is voted and if it is introduced into our legislative arsenal.

It is felt that behind some more or less clear or assumed statements, there is less security in ports than the struggle against the illegals and the clandestins who would try to join what they think is an eldorado.

Therefore, it is a question of a sanction taken against illegal or clandestine people caught on the fact or against recidivists who could be behind bars. We fear that many will be affected.

Again, we are facing legislation which is more evidently symbolic or ideological than realistic and feasible. The authors of the bill are so aware of this that they announced that after a year, an assessment would be carried out as to how the law has been implemented and whether a change would prove necessary or not.

These are the reasons why I have not supported this text in the committee and my group will not support it so far.

Mr. Speaker, first of all, I will not repeat all of Mr. Van Hecke’s arguments, but I will follow him on that point for a piece. I am also concerned that in practice it will remain dead letter. Initially, there must be sufficient police capacity to actually make a difference in practice. Collega Van Hecke has expressed a lot of justified concerns that show that in practice it could still remain dead letter.

Secondly, I am disappointed that the original bill has been so weakened by the many amendments of CD&V that now that provisional detention is possible in far fewer cases than was originally intended by this bill.

Nevertheless, we want to give it a chance, we support the idea and we will approve it, but I urge a review after approximately a year of this legislation, to see if they really make a difference in practice.