Proposition 54K3213

Projet de loi insérant dans le Code pénal un article 55bis, en ce qui concerne la récidive.

General information ¶

Authors

N-VA Sophie De Wit, Sarah Smeyers, Goedele Uyttersprot, Kristien Van Vaerenbergh

Submission date

July 4, 2018

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Subjects

criminal procedure criminal law carrying out of sentence release on licence

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Discussion ¶

April 24, 2019 | Plenary session (Chamber of representatives)

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The rapporteurs, Mr. Van Hecke, Mr. Brotcorne and Mr. Foret, refer to the written report.

Mr. Speaker, colleagues, there was once the happy year of 1888 when Minister of Justice Lejeune introduced a system of conditional release, making a distinction between those who made a mistake for the first time and therefore occasionally and those who repeatedly fell or recurred. He provided two different treatments, namely one-third for those who do something wrong for the first time and two-thirds for those who recur. So far went the execution of punishment then: one had to pass at least one-third or two-thirds of the sentence.

That distinction has continued to exist year and day, although it was often questioned. For example, other fragments were proposed. We have also proposed adjustments in this direction. However, the difference between the two systems themes has always remained.

Nevertheless, there has been a gradual breakthrough in the criminal enforcement legislation. In 1998 there was another draft by then Minister De Clerck. However, the distinction remained. In 2006 there was a design by Ms. Onkelinx and also there the distinction remained. In 2006, we approved the Martin law in this hemisphere. The conditions were tightened, but again there remained a strict distinction between recidivists and non-recidivists. The recidivists had to spend a larger part of their sentence before they could be released conditionally.

The impact of this state of repetition has therefore existed for 120 years. Suddenly, however, the Constitutional Court issued another judgment, stating that there was inequality and discrimination and abolishing the relevant provisions. The result is that today anyone can be released after one-third of his sentence.

The problem is that our law today does not provide for a state of repetition in a crime that comes after a bad company. This in itself is not illogical because a crime is always punished more severely; that is the underlying ratio. It was always considered that within that criminal punishment there was sufficient margin to aggravate the punishment.

However, progressively we are becoming stronger in the area of criminal law and criminal procedure law. We have introduced something like correctionalization. Then, of course, you get a completely different situation. If one commits a bad deed today after a bad deed, it is a repetition and two-thirds of the punishment must be extended. If a crime is committed after a wrongdoing, it is also a repetition and two-thirds of the punishment must be expired. If a correctionalized crime is committed after a wrongdoing, it is also a repetition and two-thirds of the punishment must be extended. However, if one commits an ordinary crime after a misconduct — not included in the law — then there is no repetition and only one-third of the punishment must be extended. Therefore, it is almost advantageous to be referred to the court of assises.

Everyone feels that this is not true. That ruling of the Constitutional Court of 2018 prompted our group to submit a bill to correct this decision and carry out a repair. We assert that when a crime is committed after a bad deed, it equally constitutes a state of repetition. The 120-year-old Lejeune law is then re-applicable and one can then be released again at the earliest time after two-thirds of the sentence.

That is then regardless of which court you appear, because that no longer brings any benefit, with whether or not a choice for the court of assises. There is no longer any inequality in the punishment phase.

Dear colleagues, it is especially important for us to correct this again. To put everything on a third is not enough for us; we are in favor of a stricter penalty enforcement. A punishment can be a punishment for us. For us, it may even be other fragments, but that is not the issue today. This recovery is the least that could and should be done during this legislature. I am therefore very pleased with the support we received in the committee to carry out this repair. As a result, in the case of recidive, the perpetrator can be released no earlier than after two-thirds of the sentence. After all, a chance was already offered before, but it was not seized and something was again mistaken. Those who burn their hole must sit on the blisters.

Mr. Speaker, Mr. Minister, dear colleagues, this text adopted in the rush is clearly premature and risks a further cancellation before the Constitutional Court. It is premature because the preliminary draft law on the reform of the Criminal Code will allow to deal with this issue in better conditions. It is premature because the timeliness of the introduction of such a recurrence of crime on crime requires an essential and prior discussion on the scale of penalties.

Thro ⁇ its jurisprudential development, the Constitutional Court held that the recurrence of crime on crime was inopportune. On the one hand, because if it did not exist, it was not by inadvertance but rather by a deliberate choice of the legislator, as early as 1867, who considered that the criminal penalties already offered the judge, between the maximum and the minimum, a sufficient latitude to proportion: in such cases, the punishment to the guilt of the perpetrator, the ineffectiveness of the first condemnation then finding its remedy in the necessary severity of the second.

On the other hand, due to the massive correctionalization that the pot-pourri II has further accentuated, this recurrence would result in cascading discrimination. I insist, the lack of constitutionality raised by the Court therefore does not come from the absence of recurrence of crime on crime but from the very principle of correctionalization of crimes before the correctional court. For example, the Constitutional Court in 2011 considered discriminatory the fact that a defendant prosecuted before the correctional court following the admission of mitigating circumstances was at risk of being sentenced to a longer sentence than the one who, deprived of mitigating circumstances, was prosecuted before the court of assises.

The second part comes from the inequality raised in the context of the execution of the sentence. Thus, the Court, in a judgment of 18 December 2014, held unconstitutional the fact that a person who, after a sentence to imprisonment of at least one year, and convicted by the commander of attempted murder less than five years after having suffered his sentence or after that sentence was prescribed, is treated differently as regards the possibility of conditional release depending on whether he is returned to the court of assises and sentenced to a criminal sentence or if the crime has been correctionalized due to mitigating circumstances or a cause of apology, he is sentenced to a correctional penalty by the correctional court or the court of appeal.

Finally, the Constitutional Court, in a 2018 judgment, will consider that it is contrary to Articles 10 and 11 of the Constitution that a convicted person, in a state of legal recurrence, is eligible for two-thirds conditional release while the basic theoretical punishment is lower than the theoretical punishment involving conditional release at the first-third of his sentence.

Such differences in treatment are without reasonable justification since they question the scale of the penalties at the stage of their execution. It is therefore, in reality, the combined reading of the different articles of the Criminal Code that creates discrimination that the text on the table will not fail to recreate and even emphasize regarding the execution of penalties.

Furthermore, the postponement of the date of eligibility for conditional release will only worsen the situation of the detainees and the figures of the penalty base with the risk that this entails in terms of the absence of checks and returns therefore unaccompanied within the society.

For my group, the proposal submitted is contrary to the case-law of both the Constitutional Court and the Court of Assises. We are therefore presenting a series of amendments to address a number of difficulties. However, we would prefer the first proposed option, which would be to renounce the vote on this text at this stage and allow the new Justice Committee, which will be set up after May 26, to decide on a reform of the penalty scale and the notion of recurrence.

I will not be very innovative in comparison to what has just been explained.

I would like to say, first of all, that we have experienced a somewhat special situation in the commission. The document that is presented to us today was incorporated into another and we had obtained that it was removed so that we could continue the discussions. We were therefore very surprised to find that it had been submitted in the form of a bill proposal practically the same day, which sparked quite passionate discussions, not being exciting, in committee.

With this notion of recurrence, we touch the foundations of criminal law. The establishment of a recurrence of crime on crime had been justified, at some point, to try to circumvent the constitutional obligation of the court of assises. It was beaten in breach by the Constitutional Court, which demonstrated that one could not engage on such subjects during debates that were not sufficiently prepared.

According to us, this is still the case today, which is why we believe that it would be more appropriate that this operation could take place when a Justice Commission from the new elections can seriously start a discussion on the scale of penalties and the reform of the Criminal Code, two reforms that could not be carried out well under this legislature while at first, it was an important political will of the minister.

We believe that time is not mature. Furthermore, what is proposed to us risks, as the previous speaker said, to be again confronted with a negative analysis of the Constitutional Court since the proposal carries in itself two new discriminations that the Court is determined to track. This would allow the latter to cancel provisions that would not go in the sense of constitutionality. This is the risk we take with the text that is proposed to us this afternoon. Therefore, we will not support it.