Proposition 54K2940

Projet de loi modifiant le Code d'instruction criminelle et le titre préliminaire du Code d'instruction criminelle en vue d'introduire la méthode particulière de recherche d'infiltration civile.

General information ¶

Submitted by

MR Swedish coalition

Submission date

Feb. 19, 2018

Official page

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Status

Adopted

Requirement

Simple

Subjects

judicial inquiry judicial investigation fight against crime criminal procedure

Voting ¶

Voted to adopt

CD&V Open Vld N-VA MR

Voted to reject

Groen Vooruit Ecolo PS | SP DéFI PVDA | PTB

Abstained from voting

LE ∉ PP VB

Party dissidents ¶

• Olivier Maingain (MR) voted to reject.

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Discussion ¶

July 18, 2018 | Plenary session (Chamber of representatives)

Full source

Mrs Sophie De Wit, rapporteur of Bill No. 3016 refers to her written report.

Mr. Stefaan Van Hecke and Mr. Gautier Calomne are the rapporteurs of the draft law n. It is 2940. They also refer to the written report.

Mr. Speaker, Mr. Minister, dear colleagues, taking advantage of the shock wave of the attacks, the government is therefore introducing two new systems of evidence collection, very controversial since the early days: repentance and civil infiltration. I recall that these two regimes were not requested by the Attack Commission. These two regimes, obviously, will serve to fill the shortage of men and women in our police services, in our intelligence services, and in particular of men and women from diversity.

Beyond the aspects related to the potentially exorbitant costs of these new particular methods of research, beyond the difficulties related to the reliability of the information collected, beyond the excessive, even unconstitutional scope of the proposed devices, which we have indeed long discussed in committee; with my group, I doubt. I doubt the effectiveness of the proposed measures. But I also doubt that our democracy, our justice, must see its values so shaken.

We have had very good debates in the committee. Many experts have come to discuss with us. You know that at the request of the Socialist Party, we had an interesting exchange with a prosecutor and an expert from Italy. This country has quite interesting experience in repentance. This helped them in the fight against the mafia. Experts have also pointed out the dangers. For them, this must remain exceptional. I will not repeat the debate we have had in the committee. Those interested in this will carefully read the excellent reports but my opinion and that of my unanimous group is that the project as proposed, with such a wide scope of application, poses a problem with the values – I will return to them – that we have always defended in matters of justice.

The government offers us two new particular methods of research. The first creates the possibility of using a lambda citizen, possibly under a fictitious identity, to infiltrate a criminal network by allowing him to commit offences if necessary. The second creates the possibility of negotiating a drastic reduction of punishment or arrangements of punishment with an offender who would make substantial and revealing statements about a crime in which he or she participated or not.

Are we sure that our society is ready for this? Is our democracy ready for such compromise? Are we ready to admit that justice negotiates with criminals? I am not talking about transactions that make it easier to establish the guilt of an author. I speak of a delay in order to satisfy a personal interest in the reward.

By the way, the Italian eminences heard in the commission have clearly stated to us that they have never faced real repentance. It’s not about people saying to themselves, “My God! I did something wrong. I have committed a crime. I’m sorry, and I’m going to help justice.” This is why we have changed the title of the project. It no longer calls itself “project on repentance.” No, these are criminals seeking a personal interest and not at all motivated by a desire for reparation. Are we ready, in order to obtain any useful information, to gratify this delay? Is it an acceptable price that to grant a punishment relief that shakes the equality between the prosecutors, and question the victims?

I would like to remind you that the system allows to award a punishment that is not related to the severity of the offence and the fault committed. What’s more, we have chosen, unlike Italy, to bind the judge of the substance by the agreement, which puts into question its independence and sovereignty. It is the negotiation between the prosecutor and the repentant who will fix a penalty rate, which may have nothing to do with the severity of the offence or crime. It is unheard of all!

Does the possible surplus-value of these measures justify that we deviate from the values that are the basis of our justice? These values have allowed for decades all parliamentary majorities to refuse to succumb to these sirenes, in the name of higher principles of justice. Are we ready to admit, with infiltration, that untrained citizens are introduced into criminal circles, in order to investigate instead of our policemen? What risks are they taking for their lives?

What are the risks of double gambling? What hidden purpose? What if it’s someone who wants to settle their accounts or trap a competitor?

We are at a turning point in our system and, faced with the balance of fundamental interests, seeing democracy evolving towards fewer freedoms, we are witnessing the destruction of our fundamental principles. We face the swinging of the delicate balance between security and freedom, taking the risk of collapsing into a state that no longer respects the fundamental values that we, before you, have managed to preserve.

Certainly, these bills are linked to a difficult context. But it is worth noting that the measures accounted for are in reality never limited to the destabilizing offences of our society. As one great expert, Mrs. Beernaert, pointed out, we are sometimes confronted with a simple telephone harassment. For gang harassment, you can use a repentance.

In our history, we have always wanted to answer by the highest principles to those who, precisely, have no principle. You do the opposite here. We will vote against these two bills.

Mr. Speaker, today we are discussing two important new systems in our criminal law: on the one hand, the infiltration of citizens and, on the other hand, the regret-opt-in system.

This is ⁇ not obvious. We all watch TV, we all watch series, and that seems normal. One negotiates because someone has tips or information and reduces the penalty a little. We also see people going undercover, apart from CSI. We all see that on television, but we also all know that reality and fiction are two different things, until society evolves in that sense that one may have to take steps, even in the criminal justice system, so that the fiction on television can or should become a bit of reality.

The first reflex and that’s a normal reflex... I apologize, Mrs. Onkelinx, because I haven’t heard your whole argument, because I occasionally try to combine my work with parenting.

Sorry, really sorry, really sorry. My little girl went out with the scouts, so it was a bit difficult.

The first reflex is still, also for me, the question of whether we should do something like this: will we now also introduce it into our system? As a lawyer and lawyer, you have that reflex easier. Some call it a corporate reflex, but one always has that reflex a little.

However, we know that reality today is sometimes far apart from fiction, from the many TV-feuilletons. The reality is that a lot has changed over the last few years. In the past, the detection methods were fairly simple, but due to technological evolution, this is no longer the case today. Ordinary phone calls are no longer so simple: the bad guys have a lot of tricks to avoid tapping anything else. Ordinary observations can still be done, but they are smart and so it is not easy. We are also in the terro-era. That may not be an excuse or container concept, but it is a reality we face today. It is no longer about the detection of theft or other crime, but about very serious matters that make our society crumble on its foundations.

Our legislation has also changed. We have done a lot of work, including in the aftermath of Terro. Thus, we have criminalized the preparatory acts. That means, in the event of infiltration, that we struggle with limits. These additional penalties also make certain methods of investigation less convenient.

Apart from legislation and technological evolution, I think it’s a major problem that we often have to deal with with very closed environments, where it’s very difficult to infiltrate. It may also be good that we do not have police officers with such backgrounds to infiltrate in. Researchers must work within the framework. The researcher seeks to spot matters, but also to avoid facts and thus faces limits.

The information provided through, for example, civic infiltration may really be necessary. Those are not my words, because my first reflex is that we should be careful, but it’s the words of the police, the prosecutor’s office and investigators who explained it to us in hearings. I did not have the privilege to be part of the investigation committee on the attacks of 22 March 2016, but I understood from the reports that the hearings found that the current methods were at their limits. If we simply strengthen the current information work, that will not provide sufficient solutions. The report also states that the role of citizens must be strengthened. It is also very important that human intelligence, i.e. human resources, become very crucial. In addition to the report of the hearings, the investigation committee also explicitly advocated the possibility of civic infiltration, though – this is essential – under very strict conditions. As the investigative committee said, infiltration must take place in a balanced manner with the necessary checks-and-balances.

This problem has two aspects. The first is the principle in itself. It is a principled, almost philosophical choice about whether or not we will take that path with our system. The second aspect is that conditions and frame conditions must be linked to it when that choice is made.

Regarding the principle, I actually think that no one is about jumping into civilian infiltration. Even a law-and-order party, like N-VA, is not able to call for a prostitute. In my opinion, everyone also hopes that we will never need the civilian infiltration, but that there is little crime and that everything works properly. However, there is also the realization that in the current context it simply cannot be otherwise.

Even if you do not rejoice, colleague Onkelinx, on the contrary, if one can collect the necessary information by which one can catch the perpetrators, bring them to justice and place them for their responsibility, or better yet, if one can avoid facts by doing so, then it will be worth the introduction of such a system.

We are not the only country that does this. Many other countries have done so, and the European Court of Justice does not exclude it.

When one chooses the system of civilian infiltration, the conditions under which one is going to do so are very important.

The necessary checks-and-balances are essential. As Ms. Onkelinx just pointed out, there are risks: double play, one risks the life of a citizen, there can be committed crimes, one puts criminals in... If one looks at the design, one sees, however, that there has not gone ice overnight. This has been considered, hearings have been held and the draft includes clear balances and checks-and-balances. This reassures me and I hope this reassures my colleagues as well.

A lot of guarantees have been established. The scope of application is limited, which is evident. The principles of proportionality and subsidiarity are very important.

There is a six-fold control structure: police, prosecutor's office, federal prosecutor's office, investigative judge, accusation chamber, the judge on the ground and finally the parliamentary control. There are many stages of control.

A risk analysis should also be done, the prohibition of provocation happily remains and continues to exist. Very important, as the hearings have shown, is that the safety of the infiltrant should always be at the forefront.

Is it possible to criticize the system? Yes, that can be perfect. Criticism is possible and comments can be made, but in the hearings many of those comments have already been refuted.

Both for the civilian infiltration and for the regret-optant scheme, which I will discuss later, it is very delicate, that it must be followed very well, that we must evaluate and adjust when necessary. It can only be evaluated and updated when the system has entered into operation.

We will have to follow this, but it is important that we approve this first. We must realize that civilian infiltration will be an additional tool in the fight against terro and heavy crime.

The most important thing I’ve remembered is that avoiding such things is worthwhile. This is the bottom line, that is, the safety of everyone. Civil infiltration can contribute to the security of our society.

In addition, there is the system of the regret options system.

This is also for approval today. This is partly linked to civil infiltration.

Of course, it is another story. We see this in the television series too. If one gives relevant information, one can already negotiate the punishment, the prosecution and the execution of the punishment. Today we introduce this system, with the same condition of proportionality and linked to the same legislation. This seems to me essential.

Mrs. Onkelinx, it is true that this involves a risk. I cannot think that we must negotiate and make an arrangement with the Abdeslams of this world. Fortunately, however, this is excluded and this provides the necessary checks-and-balances. Our criminal justice system is being further developed so that it will hopefully be better armed against the current phenomena. I think this is important.

I think we will need to evaluate the regret-optant scheme at a later stage. However, we did not invent hot water, because many other countries did it for us.

Today we have balanced bills. They are also delicate bills in which fundamental societal choices are made. However, given the context and the ultimate goal, namely the safety of everyone, N-VA can stand behind this.

We will approve these bills.

Mr. Minister, dear colleagues, you will still allow me to use the term “repentance” – even if it has been modified in the draft – since it has been highlighted that these people do not repent but most often wish to benefit from a reduction or an arrangement of their punishment.

This bill on repentance, as well as the one that introduces a new particular method of research – civilian infiltration – are undoubtedly new weapons to combat organized crime and terrorism. The Attorneys General and the Federal Attorney are applicants and the investigation judges see these new tools in a positive way.

We decided to link the two files. As for the regime of repentance, if we have had new techniques in the last few years – DNA, telephone listening, the exploration of computer systems – they do not always prove sufficient to blast out the truth. Human testimony remains an important element of evidence, hence the need, as in many other countries, to be able to resort to new devices such as the regime of repentance. Many hopes lie in the implementation of this new device to clarify complex cases in which evidence is scarce. I think of the murderers of Brabant.

Furthermore, as the federal prosecutor recalled during his commission hearing, in highly closed, almost family-owned criminal terrorist organizations, this system could be ⁇ useful for having access to information coming from within and thus being able to clarify cases and bring justice to victims, but also ⁇ preventing others.

Following the hearing of Italian experts, some wonder whether this system of repentance will be relevant in matters of terrorism since the perpetrators are motivated by a radical pseudo-religious ideology and they would therefore not seek to diminish their punishment; and if there is information, it would therefore be worthless.

I agree with the Federal Prosecutor’s opinion. If this allows the prosecutor to intervene earlier, even for a fact, it will always be an undeniable success.

This project is undoubtedly delicate. My colleagues Mrs. De Wit and Mrs. Onkelinx said so. Onkelinx spoke of a delicate balance between two important values: freedom on the one hand, security on the other. I find that this project responds to it in the most balanced way possible with tags.

First, the regime must comply with the principle of subsidiarity. Indeed, it shall only be used if the investigation so requires and if the other means of investigation do not appear sufficient for the manifestation of the truth. I think that here, we do not resort to this regimen of repentance to the light.

The principle of proportionality must also be respected. The promise of the prosecutor must be proportionate to substantial, sincere and complete statements revealing repentance regarding his or a third party’s participation in an offence listed in Article 90ter, §§ 2 to 4 of the Criminal Investigation Code. This proportionality as well as the legality will be controlled by the court of instruction, the court or the court when they ratify the promise.

The rights of defence are respected. Anonymity is not possible. Statements of repentance must be corroborated by other evidence. The memorandum is in the repressive file and the hearing is public. Similarly, the repressive court will have all the elements to check the reliability of the declaration of repentance.

I mentioned it in the preamble, it is a delicate subject. A balance seems to have been found. Adaptations will probably need to be made following the implementation. I think, for example, of the scope of ratione materiae which seems too wide, for some at least. In the MR group, we are now taking over new means and additional means given to the prosecutor’s office to enable it to clarify and combat crime from the moment when, as is the case here, they are strictly framed.

In parallel with this project, we are also voting on another project that is the one that introduces civilian infiltration. This particular new method of investigation has long been demanded, ⁇ by the College of Attorneys-General. The latter are facing, they told us, the limits of police infiltration for various reasons. Thus, the federal police, among other things, do not have enough infiltrating police officers with an adequate profile to integrate certain terrorist cells, for example. There are problems with language and even origin.

And when they have this rare pearl, it is sometimes impossible, or even often impossible, to introduce it into a criminal environment within a reasonable time.

Similarly, these infiltrations are sometimes simply impossible because the criminal cell is located in a neighborhood where the persons concerned have known each other for years. Controls are also carried out on new members, for example, in the case of Daesh, regarding the fictitious past that they would have made themselves. Civil infiltration is then a response to allowing to fight these cells from the inside.

Again, this is a ⁇ delicate particular search method, which is not without danger and which, since it is not carried out by a police officer, requires additional control mechanisms compared to police infiltration, but also strict conditions of application. Proportionality and subsidiarity are also in place, as in the use of the repentance regime.

Civil infiltration is limited to terrorist offences and certain serious offences committed by criminal organizations. These are, as has been recalled in our rich commission work, forms of crime among the most destabilizing. Therefore, serious indications of the existence of the infringements or their future commission are required. Civil infiltration may only be resorted to if the necessities of the investigation so require and if all other means of investigation do not appear sufficient for the manifestation of the truth. Furthermore, the federal prosecutor must give his consent to resort to civil infiltration.

Clearly, the goal is to use this particular method of research in an exceptional and unique way. Framework by specialists, numerous and diverse controls, how to use the evidence obtained: the project closes the doors to the deviations that could arise from this particular new method of research.

Different specialized sections of the federal police are also involved in the establishment of civil infiltration. A risk analysis shall be carried out in order to ensure the suitability of the civil infiltrant to be engaged in the relevant file. An accompaniment of the infiltrant is carried out throughout his mission. Its protection is guaranteed.

In addition to the controls applicable to police infiltration, the project also provides for a review of the regularity of civil infiltration by the Prosecution Chamber every three months. Long-term infiltrations presenting risks for the infiltrant to weave links with the infiltrates, so investigators must have a close view of the file.

Finally, the evidence obtained by the civil infiltration must be determiningly corroborated by other evidence, which is the balanced amount, it seems to us, because elements are collected through the confidential file to which the defence has no access.

To conclude, I will recall the example given by the federal prosecutor: if we could have resorted to a civilian infiltrate, we would not have had to wait for the return of the returnees to prove that Sharia4Belgium was a terrorist group and the federal prosecutor could ⁇ have intervened earlier. The move has led to the departure of more than 50 Belgians to Syria. It must be recalled.

Certain of its necessity and convinced by the guarantees put in place in these two projects, our group will vote positively.

I thank you for your attention.

Mr. Speaker, I will give a brief speech from my seat, because I do not want to repeat everything that has already been said by the three previous speakers. I think everything has been made sufficiently clear.

What I’ve noticed in Ms. Onkelinx’s argument is that she is trying to link the attacks with the investigation committee. For all clarity, that has nothing to do with this. Mrs. Onkelinx, you have even said that the spirit of time was benefited in the context of the attacks. As far as our group is concerned, it is simply that two new instruments are being launched here which provide additional resources to do the finding of truth. The times have changed, so the instruments have to change to make this possible.

My group is very well aware that ideological choices are made in this regard and that this is always accompanied by delicate decisions on new instruments, but, again, the minister makes a number of choices within the framework of criminal law that signify the way forward for our justice, hence that our group can support them, especially also because sufficient balances have been built, as also very clearly indicated by colleague De Wit. Mr Calomne has just pointed out the balance of subsidiarity and proportionality in it, and we believe that this is sufficient to give the resources at least a chance. Sometimes you really have to think, dare and do, and the minister does too.

It is of course necessary to evaluate and follow up on these new instruments. Parliament naturally serves this: we can continue to follow up and evaluate adopted legislation, as we do in other areas.

It has also been referred to the fact that it is not about new instruments, because in some countries it already exists. In the committee we heard an Italian professor or magistrate, who with the necessary Italian schwung brought his story, of which act.

Again, the way these instruments, both the civilian infiltration and the regret-optant scheme, are developed, with the necessary assurances and considerations by the court, is a very good thing that our rule of law should enable to get to the truth better and faster.

Therefore, my group will, of course – which will not surprise you – support the proposed draft.

The ideal is often the greatest enemy of the good. What brings forward, may not be ideal, but it is alleszins a step in the right direction, hence I call on you to support the design, colleagues.

Mr. Speaker, I will follow the example of Mr. Terwingen and briefly speak on my bench.

Both bills, which are in place today, deal with the regret-opt-in system, on the one hand, and citizen infiltration, on the other. They are the result of a decision taken in the Thematic Council of Ministers of 14 May 2017. Of course, this is related to the fight against terrorism, but also to organized crime.

We have special detection methods. Practice shows that these are not sufficient to intervene at an early stage and prevent worse. This is ⁇ the case when we talk about terrorism. On the one hand, these methods are not new. They are new to our country, but they have been tested abroad, including in the United States. On the other hand – this has also been demonstrated during the hearings – it shows that sufficient attention must be paid to the necessary checks-and-balances. Contamination should be avoided and the evidence thus gathered should be reliable.

I know that initiatives in this regard have already been taken in the past in our country, including by my group. We have been advocating the introduction of these methods for decades.

The considerations of an ethical nature that are being made today have been made for years. These considerations were also taken in the consideration of the draft legislation. However, it must be said that the evolution of crime requires us to introduce these particular methods.

The investigative committee on the attacks stressed that this must be done with the necessary checks-and-balances. There must be a balance between, on the one hand, effective investigation and, on the other hand, the credibility and integrity of public authorities, good justice, the right to a fair trial and the safeguarding of individual rights and freedoms.

All these elements were taken into account, making balanced designs available today.

I would like to emphasize that comparing with the United States would be a step too far for us, even more because in the United States, the ethics of detection is completely different from ours. The police there are entitled to commit crimes and these are not considered or qualified as crimes in the context of their police activities. This is a bridge too far. This is an ethical framework that we absolutely want to preserve. The right to privacy also has a completely different definition for the European Court of Human Rights than for the Supreme Court of the United States. We have also paid the necessary attention when collaborating on these projects. Legality, proportionality and subsidiarity do not apply in the United States, but are absolutely important to us when we introduce these methods. It has been sufficiently taken into account.

Our group will approve these drafts. We have also done this in the committee because we believe this is a new weapon in the fight against serious crime and terrorism.

We are convinced that it is a balanced and proportionate system to come to a better detection. Furthermore, we believe that the fact that supporting evidence or statements will only be considered if they find sufficient support in other elements of evidence will contribute and represent a step towards a substantial motivation obligation in criminal matters in Belgium. I think this is very important. Today, there is a formal reasoning obligation, but no material reasoning obligation, except in relation to the Court of Assisi. That may be in favor of the Court of Assisi, but I think the substantial reasoning is important because it can make the citizen, the accused and the public accept and understand a conviction or release, which is very important in the rule of law that we are still.

Mr. Speaker, Mr. Minister, I will first talk about the regret-optants and then communicate my vision on the civic infiltration.

Mr. Minister, in the wake of the new revelations in the dossier of the Bende van Nijvel, I have asked you several times to develop an ad-hoc arrangement for the regret optants in that dossier. Each time you stopped the boat with the notification that your services were working out a general arrangement and you promised to submit the texts to the committee during the Christmas holiday, which eventually became the Easter holiday, but better late than never. The design of the regret optants was submitted later than the design of the civilian infiltrants, although both figures are inseparably connected. After all, not seldom a civilian infiltrant in the same file will also be a regret optant. I am therefore pleased that the groups agreed to put both drafts together for voting in the plenary session. This also gives us the opportunity to parallel the scope of both designs.

We must note that the areas of application do not fully coincide with each other. In fact, a regret-optants scheme is possible for all crimes in the so-called taplist, while for civilian infiltration the same list is linked to the condition that the crime from the list must be committed by a criminal organization. The latter condition is not imposed on the regret-optants, but we do not fully understand why. The idea is that we can collect evidence through the complaint optant to be able to condemn the other gang members as well, but when a complaint optant appears in a file without gang formation, then the complaint optant actually simply makes confessions for a crime that he alone has committed, for which the guilty plea still exists.

In any case, for the same reasons as those mentioned in the case of civilian infiltrates, we consider that the scope of application is too wide. We are therefore not opposed to the introduction of the figure of the regret opponent, but the list of crimes for that figure can, in our opinion, be much more limited and in the first instance even limited to terrorist crimes. Since we wish to have the facts of the Bande van Nijvel also classified as terrorist crimes, the regime of regret-optants could also be applied in that file.

It seems useful to us then, after a positive evolution after several years, to look at whether or not the scope of application can be expanded. Now, in fact, we are at risk of having to limit the scope within a few years, given the many abuses that may occur.

We will therefore abstain from voting on the draft on the regret optants.

Then I come to the draft on the civilian infiltrators.

Each expert in the hearings emphasized that the introduction of the system of the civilian infiltrant is not without risk. Mr. Van Linthout has expressly expressed his support for the system on behalf of the investigative judges, but he said that there will definitely be a wheel down. From that point of departure, the Terrorism Investigation Committee has therefore formulated a very conditional and nuanced recommendation on the introduction of the system of civil infiltration, which I therefore fully support.

I also did the exercise for myself by testing the present bill on the three principles that were pushed forward by the investigative committee. You also refer to it yourself, on pages 5 and 6 of the explanatory memory. In its recommendations, the investigation committee on the attacks restricted the scope of the civilian infiltrant to terrorist crimes. By adding the so-called tap list, the scope of application is made too wide in the draft law.

I therefore advocate to limit the scope to terrorism, for the following reasons.

First, citizen infiltration must, according to the explanatory memory, primarily address the shortcomings of the other special detection methods. The explanatory memo shows that these shortcomings are primarily related to terrorism. On the pages 14 and 15 of the memory, the parallel is drawn between other crimes and terrorism. Examples are also listed.

Secondly, as Professor Meese correctly cited, the risks are much greater if civilian infiltration would be applied to other crimes. I refer here to the so-called double-play, one of the greatest risks of civilian infiltration, which the professor explained in the hearing and outlined in a note.

Third, the explanatory memo states that the application remains very limited, since it is only possible for the crimes from the tap list, committed by a criminal organization. The list of crimes is a list of many crimes. It is not because we allow the tap for such a long list of crimes that we can stretch that line to the civilian infiltration, merely and only because it is also a special method of investigation. After all, it is also a special detection method that involves many more risks. This is also the reason why the subsidiarity of this special detection method is also repeatedly emphasized in the draft law.

The limitation to the criminal organization is of theoretical nature and will have little effect in practice. The concept of criminal organization is very vague and susceptible to many interpretations. In fact, the prosecutor’s office freely decides which qualification is given to the facts during the investigation and can therefore do so quickly and very lightly, which is also happening today, given the many out-of-course claims and free spaces for that qualification in the proceedings on the ground.

Regardless of the other reasons for limiting the scope of the scope to terrorist offences, I therefore ask myself, Mr. Minister, whether the restrictive list, as included in the draft law, meets the requirements set by the Constitutional Court in its judgment of 19 July 2007.

Our group will not approve the bill.

Mr. Speaker, colleagues, Mr. Minister, I will also begin with the text on the regret options, although both drafts are linked. The left will also be discussed later.

Mr. Minister, it is of course an important text that has been adjusted in the course of our work, including on the basis of the hearings and discussions and of course, not to forget, also on the basis of our traditional second reading, where thanks to the good work of our Chamber Services we can always make very useful corrections. I insist on emphasizing that. After all, the work of our own lawyers in the House is ⁇ and ⁇ always an added value for our work.

The discussion about the regret-optants is not new.

In the 1990s, following the investigation committees on the Bande van Nijvel and organized crime, the idea has already emerged to introduce such an arrangement of regret optants. There was then in 1996 in the Senate by Mr. Boutmans and Mrs. Lizin also submitted a bill, specifically with a view to being able to resolve the crimes of the Bende van Nijvel. In the end, they did not arrive. The solution that was then wanted to be developed was also a temporary solution. The text of then differs very much from the text that precedes today. Politically, however, we have been thinking for a long time about introducing such a system.

Now, 22 years later, we will come to it anyway. Again, reference is made to the file of the Bende van Nijvel, to argue that the scheme for regret-optants could be useful in dealing with serious organized crime and terrorism.

I have also repeatedly stated that we are therefore in principle in favour of such a system, in which people who can contribute to the solution of very serious crime should be given the opportunity to do so, to receive protection and, in exchange for their contribution, possibly to receive punishment relief or other measure.

In principle, we want to participate in the discussion. However, there are some concerns to be raised. That is why we were unable to end up supporting the text on the regret-optants and abstaining, which we will also do during the plenary vote.

Mr. Minister, colleagues, our main objection concerns the list of crimes on which the regret-optant can make statements. Previous speakers have already cited it, it is actually the reference to Article 90ter, § 2, 3 and 4 of the Code of Criminal Procedure that poses a problem. It is very unfortunate that more and more legislation is repeatedly referring to that Article 90ter. That article was then drafted, and in the meantime amended several times, to list for which types of crimes a telephone call is possible. That list is valuable for what it is designed for, namely to see for what kind of crimes one can ask for a phone call. However, it is now systematically referred to and that is actually a convenience solution.

Mr. Minister, in the memorandum of explanation and in the discussion, we actually agreed that when a new special method of investigation is introduced, it is done with the intention of addressing the most serious crimes that truly affect the foundations of the rule of law. Article 90ter of the Criminal Procedure Code lists 45 types of crimes. It is much more than 45 articles of criminal laws but it lists 45 types of crimes for which a telephone call is possible. That list is therefore ⁇ extensive and far more extensive than the ideally limited list of very serious crimes that should actually be the subject of this proposal.

Mr. Minister, I took a quick look at this morning in the Criminal Procedure Code how often it is referred to Article 90ter. I don’t know if you or your employees have done the practice, but do you know how often that so-called passport article is referred to? You can sit next to 10. You don’t know it, but I didn’t know it in advance. There are 21 references, sometimes for a technical reason, but often also because of a conscious choice, for example when referring to the freezing of funds on bank accounts, when referring to crimes for which one can enter a private place, when it comes to infiltration, when it comes to informants, when it comes to observation, concealing the identity of a witness, detecting electronic communications, the system of threatening witnesses and so on. Then, in listings, reference is made to Article 90ter of the Code of Criminal Procedure. That means that every time Article 90ter is amended, of course, the scope of the articles on which Article 90ter is based is also amended every time, and it will then usually be an extension, because initiatives to shorten the list I have never seen in recent years.

We have held the discussion, Mr. Minister, and between the first and the second reading you have said to consider again whether we cannot address the reference to Article 90ter otherwise. When you came back, you said to our great disappointment that you would still keep it on the list of article 90ter. You have referred to possible amendments to the Code of Criminal Procedure and I also believe that this is the ideal time to review all those references, but I am especially worried that you will not submit your new draft Code of Criminal Procedure within six months in Parliament and that this may not happen until in the next legislature, if your plan is not buried anyway.

Mr. Minister, we want to do our best and we are willing to engage in the debate, but I only say that one should not load everything on the cart of the amendment of the Code of Criminal Procedure. If all the difficult discussions are settled by that way, we will have to wait a long time. Waiting for Godot may be fun to read, but in justice we did not get a step further with that.

This is the main objection to why we do not support this text.

For the other comments, I refer to the report. There were discussions about the reliability of the testimonies, which we must ⁇ pay attention to. We know from the testimony from Italy that one should be very careful with the reason why people give certain testimony.

I would also like to draw your attention to the concrete application of this system before the court. We have had a long discussion about when a case occurs and what are the consequences for the judge who must decide on the substance of the memorandum that has been concluded, when the memorandum is accepted or not, a new memorandum is concluded or not, when referring to another judge. Therefore, the participants must be involved and so on. This can cause a number of practical problems in the field.

The texts were not clear. We have been able to clarify them in a second reading, but I fear that in practice there may still be problems. I think that close follow-up and a quick evaluation are necessary to update in time.

Then I get to the point of civil infiltration.

I think everyone understands that it is not always easy to work for the police services, ⁇ not in terrorism cases where it is very difficult to infiltrate organizations, for various reasons. It is a very difficult environment. One has not enough police infiltrates with the right profile to be able to infiltrate in difficult environments, not only in terrorist environments but also in other environments of organized crime that is very international. It is not simple.

I therefore understand the concern of the police services and the federal prosecutor’s office to obtain additional weapons. The question is, however, whether civilian infiltration is a good solution. We think of not.

Why was this proposal made in connection with civilian infiltration?

The answer to this question is also partly in the memory of the explanation. Through the successive amendments and the tightening of terrorism legislation, one has actually come to the conclusion that working with informants, persons who can provide information but are not authorized to commit crimes, has become almost impossible because almost every act, every behavior, every contact with people who are members of a terrorist organization has become a crime. This is also written literally in the text. If one can hardly or even no longer resort to informants who have provided a lot of information over the past years, then one wants to go a step further and that is the civilian infiltration. However, this method has become necessary due to the systematic tightening of terrorism legislation.

Mr. Speaker, before going into some of the risks associated with this method, I would like to make it very briefly, once and for all, clear that citizen infiltration is not a proposal of the investigation committee.

Ms. Van Cauter correctly pointed out that this comes back to a decision of the Thematic Council of Ministers. This thematic Ministerial Council took place during the activities of the Research Committee. At that time, there was a heated discussion in the investigation committee and there was absolutely no consensus on a recommendation to introduce civilian infiltration.

The investigation committee has confined itself to the conclusion that the Council of Ministers had taken this decision and the minimum conditions listed if such a system would be introduced. The investigative committee has never suggested or suggested the introduction of the system of civilian infiltration. In the discussion in the committee, the minister eventually corrected that, but I heard Mrs. De Wit just again make that reference to the investigation committee. However, all its members know very well that this is ⁇ not a proposal resulting from the work of the investigation committee.

I discussed the risks extensively during the discussion. One can refer to history, though this is not entirely correct, since there was no legal basis when one experimented with it ten, twenty, or thirty years ago. In the Netherlands and Belgium, however, we have experienced problems with de facto civilian infiltration. The fact that there is now a legal framework is, of course, a step forward but does not mean that there are no more risks.

During the discussion, I listed a number of risks.

First, the police can make arrangements, but they do not always have an eye on what the civilian infiltrator is doing and on the facts he is committing.

Second, one can cooperate for self-interest, for example to exclude a competitor. This is absolutely not to be excluded.

Third, one can earn it. This can also be a driving force.

Fourth, why does someone want to become a civilian infiltrator? There may be people who want to do this to help the country or the police services, but there will be very few who do this out of idealism. So they will want something in return, reduction of penalty, suspension of a particular file, or maybe a fee. For the petty opponents, it is very clear. There is a memorandum that also lists what is facing, a penalty reduction or any other measure one can enjoy. In the case of civilian infiltration, this has been kept much vague and there may be other arguments for entering that system.

Fifth, there is the risk of leaking information to the criminal environment. The fact that a civilian infiltrant is sent and is ordered to collect certain information in a given environment also means that that citizen knows very well what the police services are doing and what kind of investigations they are conducting. Even though he may not know all the details, he knows well what the police are looking for and what information is essential for conducting criminal investigations.

Sixth, the risk regarding the security of the infiltrant. This is about citizens. It is said in the discussion that the infiltrant will be well trained, that there will be scenarios drawn out how he should act in certain scenarios because he can end up in very dangerous situations. However, it remains a ⁇ high risk.

Seventh, what the civilian infiltrant does is difficult to control. If, however, crimes are committed for which no authorization has been granted, the civil infiltrant will not come to tell this to the prosecutor or to the police officers who accompany him.

Eighth, the risk of provocation.

Ninth, in terrorism there is the risk of radicalization through infiltration.

Tenth, the risk of infiltration of terrorists into the police. Why would organized criminal groups not send someone to the police, as a so-called civilian infiltrate, in order to know what the police are doing? That risk also exists.

Eleventh and last, there is a general risk, the risk of the sloping plane. Once such a system is introduced, quite limited, ⁇ in the beginning, the urge after a few years will be very great to apply this method also to other forms of crime. I know attorneys-general who, every time they come to Parliament, will very quickly make new suggestions on how this, in their eyes fantastic, method could serve in the fight against more crimes. I think this is a dangerous evolution.

It is for these reasons that we cannot agree with the introduction of civilian infiltrators. It is dangerous for the citizens involved, but also for the Justice, and actually for our democracy. It is delicate. We take such steps in an unknown world.

For these reasons, we will not approve this text on civil infiltration.

Mr. Speaker, Mr. Minister, dear colleagues, on the occasion of this plenary session, we have at least the advantage of being able to discuss the two topics simultaneously, which could not have been the case in a committee. It was a bit of a shame because it was interesting that the consequences and conditions of these texts could be examined at the same time. But, you promised us, Mr. Minister, that the simultaneous examination of the two texts would take place in plenary session, which is indeed the case.

Today we are proposed to introduce in our legal and judicial system two new particular methods of research: the so-called method of civilian infiltration and the so-called method of repentance, even though we agree that the word is inappropriate.

These are two concepts that are somewhat foreign to our usual and traditional culture of justice. But it is not because it is contrary to our culture that we should not eventually test the benefits.

The mind must always be open to new possibilities, especially since the law must adapt to crime. And that is well, Mr. Minister, that you are trying to make us share with your two texts by referring quite regularly, even though I have heard Mr. Terwingen say the opposite, to the terrorist attacks to which we must be able to face. This is the topic that comes back regularly: if we had these two methods of research as part of the old Brabant killer record, we might be more advanced in the matter.

However, these projects are not without risk.

With regard to civilian infiltrators, infiltration is now reserved for police officers and the use of indicators is limited by the prohibition for them to commit crimes. Tomorrow, - thanks to your bill, the bill of the majority - with the permission of the public prosecutor, - there would be no more than that! - a citizen whose quality, skills or status is not defined too much, who may have a fictitious identity or not, and who may infiltrate terrorist groups and criminal organizations even as far as to commit certain crimes that the law specifies.

Then there are the repentants. We are told that it is a way of organizing investigations that will allow to collect the testimony of offenders who, all of a sudden, would recover the memory, we do not know too much for what reason, and who "will stand at the table" to suddenly denounce the perpetrators of crimes and important crimes in which they have, very often, themselves participated.

Mr. Minister, civilian infiltrators pose risks for citizens, for society and for the stakeholders themselves.

And what risks? Are we well aware of these? Have they been evaluated at their fair value? What risks are put on the citizen who has been asked to infiltrate a criminal group that can be extremely violent, in order to gather information that may, ⁇ , help disrupt certain investigations? But at what price?

Who is this citizen? Is he still a classical citizen? What is his status? Who are these men and what are these women who could join in such a move? What is their interest and how will they be protected? How will they be remunerated?

We know nothing about it and we are not told anything about it. A form of secrecy must be kept in such a way that everything is not wiped out before the system is put in place.

Will a white-seing be awarded for committed offences, as in the Register of Repentance? All this is not very clear. What offences can be committed in order to obtain interesting information? What about innocent and collateral victims of a civilian infiltration? How to repair the damage? Will there be insurance that may cover this type of damage for the infiltrant as well as for third parties who could be injured? Don’t we also risk witnessing provocations in the head of the infiltrant?

All these questions remain suspended.

I know that such situations allow for advancement in investigations. But you need to be especially careful, because it is not anodin. I heard Mrs. De Wit and Mrs. Van Cauter expressing, not reluctance, but at least reservations. They say that one is at the border between what can be done and what cannot be done, between what is ethically acceptable and what is not.

It will therefore necessarily be necessary to evaluate this legislation and possibly adapt it according to what the practice of the field will teach us. Maybe it will be necessary, but this demonstrates how much we find ourselves here in a limited and dangerous situation.

I come to the other text that is proposed to us, and to the notion of repentance.

This concept also raises questions. Both Mrs Beernaert, who is critical in this regard, and the Italian experts we have heard in our committee, ask questions about the name itself. These experts, who have a long experience of the notion of repentance in their domestic law, told us that there was no question of repentance.

This is not the way we get information. At best, these people will try to negotiate a reduction of punishment, an adaptation of the modalities of it, or even find the opportunity to avenge a group or people with whom they had previously collaborated, or enocre to obtain a form of amnesty. Nothing more ! There is nothing ethical in what is offered.

The Italians told us that, faced in their country with the pernicious and major influence of the mafia, this notion had been much less effective against the fight against terrorism. They explained to us that the notion of repentance works in so far as we are attacking organized crime in the network, one that can be followed, which is structured, "stratified", which has its different levels in particular with regard to communication and the exchange of information. This is less true for the fight against terrorism, which often uses small cells that do not necessarily have contacts with each other. Here is the context.

It is clear that the representatives of the parks we have heard are enthusiastic about the idea of this project because it can be useful in the context we know. The special commission of investigation following the attacks had also looked at the issue, without being able at the time to decide or reach a consensus on the method. Therefore, it is understandable that the parks are interested.

The lawyers we have heard are much more critical. Mr. Minister, the essential weakness of your project is that it allows these two particular methods of research in a range of crimes and crimes that is far too wide. I think our colleague Stefaan Van Hecke has just recalled this: 21 referrals and 45 types of offences refer to Article 90ter and its paragraphs 2 to 4.

I was curious, Mr. Minister, to briefly consult this list. Alongside the things for which your project might make sense, such as terrorist offences or serious violation of international humanitarian law, there is also the alteration of Belgian currencies, the counterfeiting or falsification of stamps, seals and punches, computer fraud, the voluntary destruction of works of art, the fight against hormonal or other substances ...

In short, you understood it well and, in the committee, all commissioners were aware of this problem: it would have been better to circumscribe the crimes and crimes for which one could resort and use these two particular methods, of which you want them to be proportionate to the offence, the crime or the crime that is sought.

I think that with such a broad reference list or “list of listening” the principle of proportionality is already broken.

It is this work that we could not do, that you did not want to do within the committee, even if you were questioned and you showed a real interest in the idea of how to better reduce the circumstances in which the two particular methods were permitted, because you felt well that it would enhance the interest of this text.

In the end, you thought it was too complicated. Your idea was to give up the field work, the prosecutors, the magistrates, who may have to know the consequences of these particular methods of research. In other words, let the case law do its job.

I think that in those matters that are not anodins, it is to the legislator, then to us, that it is to do this work. It is not by relying on what jurisprudence will do about it that we do useful work. On the contrary, we are moving a little further toward this government of judges or toward this government of prosecutors – a more appropriate expression, I think – when we see the evolution of our legislation in the last few years.

The investigative judges who are sought to play a role in these methods have, too, denounced the idea that they have to decide on a civil infiltration with the permission of the federal prosecutor at first. They see it as a way to censor their work.

Regardless of the extent and importance of the subjects in which infiltration and repentance can be resorted, this also compels us to ask ourselves the fundamental question, which I think no one has yet asked in the tribune this morning. Mr. Minister, is this not another additional means to fill the lack of human and budgetary resources of the police, which prevents it, in the context of infiltration, from doing the work for which it is trained, for which it has the assets, for which it has the knowledge of what it can do and not do?

There would not be sufficiently varied profiles among our police officers. It was an opportunity, from this reflection, to say that we might need to expand, find new profiles and new methods of engagement within our police, whether federal or local. Another option was preferred.

That said, Mr. Minister, it must be admitted that the discussions we had in the committee were rich, constructive, especially on the second project, the one of repentance. He has made progress. I repeat to you: our essential criticism remains that the definition of offences covered by the method of repentance is still far too broad. The list is not sufficiently limited. The method is not limited to cases of absolute necessity.

We are neither sure that we are safe from the blackmail of testimony, nor that the person who gives an important testimony can truly be protected. We have not had much explanation on how the protection of these witnesses or repentants is considered.

In my opinion, if concrete, precise and circumstantiated answers had been given to all the questions raised at the time of our committee debates, we could have considered voting in favour of these two projects. But, in the current state of affairs and like others in this Assembly, my group, Mr. Minister, will abstain on both texts.

I will primarily refer to the project on civil infiltration. In fact, the PTB has a few fundamental criticisms to issue on this project. These criticisms concern both the effectiveness of the measure, its necessity, the weakening of the independence of the judiciary and the negative effects on economic law.

1 of 1. In terms of effectiveness, we have serious doubts about the actual effectiveness of such a project. "There is no scientific research on the effectiveness of civilian infiltration abroad," as stated by Professor Meese of the University of Antwerp during the hearings. He talked about the risk of double gambling. “People in organized crime environments have,” he says, “an interest in eliminating their competitors by collaborating in the investigation against them.” He added: “The risk that criminal civilian infiltrators fill their pockets through a tolerated form of crime is real.”

To combat these phenomena, the bill provides for strict control and a memorandum that civilian infiltrators must sign. But, as the minister confirmed in the commission, "there will be no punishment against those who do not conform. The federal prosecutor can only end the cooperation."

There is therefore a real risk of manipulation of instruction by the civilian infiltrator, who was already a member of a criminal or terrorist environment. There is a non-negligible risk of disappearance. Civilian infiltrators also cause potential problems with the evidence they bring in the file, due to this danger of manipulation but also because civilian infiltrators are not sufficiently trained to collect evidence.

The issues of proactive research and provocation were discussed in the committee. Civil infiltrators will not necessarily have sufficient training to avoid provocation that remains illegal. Given these risks, civilian infiltrators can be very ineffective. We can question their necessity.

2 of 2. In view of this necessity, the main reason invoked by the government is that counter-terrorism laws have made it more difficult to work with indicators. This government has so widened the incriminations that, according to the minister, "it is almost no longer possible to use these indicators."

To make a small digression, the government gave, in the Motive Exposition, an overview of the strategies used by terrorist groups and organized crime against particular research methods. “These counter-strategies are rather effective,” according to the government itself, “and would make civilian infiltrators necessary.”

Finally, it is recognized that all laws on particular search methods, such as generalized observation or passenger name record (PNR), are not effective. Therefore, we are entitled to ask ourselves why they have been extended.

During the hearings, Avocats.be expressed doubts about the need to resort to civil infiltration. The organization believes that police infiltration and indicators are sufficient to resolve the investigations. Mr. de Beco, who represented her, noted that in the event of a need for an infiltration by a person who is not from the environment concerned, an infiltration by the police may prove sufficient. On the other hand, if a member of the middle wants to inform the prosecutor, then it becomes a repentant.

3 of 3. My third criticism will concern the weakening of the judiciary. In the present bill, the role of the judge of instruction is, once again, revised down. Even at the time of the investigation, the federal prosecutor must give his consent when the investigation judge requests the activation of civil intruders. This situation is criticized by the State Council as well as the Association of Investigative Judges, on the grounds that there is a reduction in the independence of the judge and an interference in the competence of the judiciary.

We are obviously not in principle opposed to a double control, which allows to obtain sufficient safeguards against the abuse of such an invasive method. However, it fails in the opposite direction, since the federal prosecutor’s office can require such a measure without being controlled by an investigative judge. In this sense, there is no independent control of the judiciary, for example in terms of proportionality of the measure. Furthermore, the Federal Prosecutor is always responsible for the implementation and permanent control. Consequently, if an investigation judge requires the use of a civil infiltrator, he nevertheless loses control of the offences that he may commit and therefore also loses control of his own instruction and the legality of the means of evidence.

4 of 4. Finally, my last criticism concerns the violation of fundamental democratic rights. These are, in fact, endangered by this bill that accepts the use of civilian infiltrators in the case of numerous crimes. Thus, the scope contains all incriminations for which a hearing can be organized in order to monitor a criminal organization. As mentioned in the Commission, this latter notion remains too vague. The risk is real that civilian infiltrators will be employed for instruction on facts unrelated to terrorism or to real criminal organizations. Similarly, little clarity has been made about the proposals that the public prosecutor may submit to civilian infiltrators. First, it has not been decided on the amount they will be able to receive. It is also unknown whether they will be allowed to completely erase their crimes (and which?). The danger is great that members of the police or the public prosecutor play with the lives of citizens in order to ⁇ their purpose. Furthermore, the information provided by the civilian infiltrators and their testimony will be anonymized in the acts of the prosecutor’s office.

However, anonymous information and testimony in a trial generates a lot of problems for the defense, which has no real possibilities to do its job. Avocats.be also noted that “civil infiltration resembles a slow drift, already in progress, towards a society of delation, evolution, which is obviously undesirable.”

For all these reasons, we will vote against this bill.