Proposition 55K0577

Projet de loi modifiant le Code d'instruction criminelle en ce qui concerne l'utilisation du polygraphe.

General information ¶

Authors

CD&V Nawal Farih, Els Van Hoof
MR Philippe Goffin
N-VA Sophie De Wit
Open Vld Katja Gabriëls, Egbert Lachaert, Goedele Liekens

Submission date

Oct. 11, 2019

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

proof judicial inquiry criminal procedure

Voting ¶

Voted to adopt

CD&V Open Vld N-VA LDD MR

Abstained from voting

Groen Vooruit Ecolo LE PS | SP DéFI PVDA | PTB VB

Party dissidents ¶

• Georges Gilkinet (Ecolo) voted to adopt.
• Séverine de Laveleye (Ecolo) voted to adopt.

Contact form ¶

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Discussion ¶

Jan. 30, 2020 | Plenary session (Chamber of representatives)

Full source

I am referring to the written report.

Ladies and gentlemen, I will be very brief.

There are some comments on the bill.

We all know the polygraph. That is a lie detector that is already used in investigations today. Today, however, there is no legal basis for its use. The present legislative proposal seeks to provide that legal basis. Today, we are working with mailing letters.

The fear is that anything does not provide any guarantee or would violate the rights of the defense. Today, the proposal itself gives an answer. Ultimately, the proof that the polygraph provides will never be the only proof. This is how the main criticism has been addressed.

The most important thing is that the polygraph, first, will not be the only evidence. Second, its use provides legal certainty. After all, today the polygraph is already used, but its use has no legal basis. This is what we are trying to do with the current legislation. This is a step in the right direction.

The proposal has been worked and encrypted. After all, a lot of comments have been made and advice has been requested. We will support the bill.

Mr. Speaker, dear colleagues, I take the floor to explain the reasons why my group will abstain from this bill that aims to regulate the use of the polygraph, more commonly referred to as a lie detector. We said this during the debates that were fed in committees: we were pleased that Parliament addressed this issue in order to regulate an existing practice. In fact, the polygraph has been used for many years, while it is regulated only by a circular dated February 13, 2003. Like practitioners, we are in favor of a more appropriate legal framework than a circular. However, if the definition of a legal framework is an advance to be welcomed, it still needs to be defined which framework. You will have understood that this is where the battle hurts and our abstention is justified.

We highlight in the legal framework that is proposed to us today three important branches: the first, in terms of definition; the second, in terms of rights of defence; and the third, in terms of right of evidence.

In terms of definition, first of all, because paradoxically the polygraph is not a lie detector. This formulation as well as the definition proposed by the authors are inappropriate for the simple reason that the polygraph detects nothing and does not constitute, to repeat the definition contained in the proposal of law subject to your sagacity, a technique allowing to verify "the veracity of statements". This device does not measure the truthfulness of statements, it merely measures physiological reactions, reactions of the human body, and does nothing else. It is not intended to verify the veracity of the statements. The proposed definition therefore gives the tool an inaccurate scope.I close this semantic parenthesis, which, however, is not without importance.

In terms of rights of defence, then, I will decline this point in two elements: one general and the other specific.

In fact, the polygraph test is nothing more than an audition during which a person answers many questions. This can take long minutes, or even a few hours – some experts will tell you about an average of two to three hours. This session is the subject of an audiovisual recording, while the physiological reactions are recorded by the apparatus that is the polygraph. Since the recording of these physiological reactions takes place as part of an audition, we requested in a committee – like the French and Dutch-speaking Barreaux – that all guarantees of the rights of defence apply to the polygraphic test. We wanted this to be legally regarded as a hearing and to enjoy the guarantees of rigour. This involves the mandatory presence of a lawyer during the test and the possibility for the latter - as in the hearing - to intervene, or even interrupt the test if he considers it necessary in view of the interests of the person being heard. We must note that the amendments submitted in this direction have, unfortunately, been rejected.

In particular, we have had to observe that, by an amendment adopted in second reading, a confusion is now introduced, at the expense of a category that was, until then, the subject of clear and precise protection: minors over sixteen years of age. It is unnecessary to indicate that a minor remains a minor, that he is under or over sixteen years old, and that as such, adequate and complementary safeguards to those offered to adults must be clearly provided. But this is not the case.

Finally, the last point concerns the right of proof. In fact, the proposed text considers that the results of the polygraph serve as "proof means". In this regard, I recall that the Order of Bars had questioned the even possibility of inserting the technique in the Code of Criminal Instruction. As we said, the polygraph participates in a broader hearing frame. There are physiological reactions. It has been demonstrated that innocent people can lie for facts totally alien to those who were accused of them. I take the example, which we have been exposed, of an extraconjugal bond. On the contrary, someone who has some mastery can deceive the polygraph. That is why we had proposed that this test be used, not as proof - what it is not, the opinion of the experts themselves - but only as a means capable of bringing light to the case, coming to compete with the proof in a more general way. This was also rejected.

In conclusion, an inaccurate definition, serious concerns in terms of defence rights and a discrepancy between the actual result of the polygraphic test and the consequences we intend to give it, here are the main reasons, dear colleagues, for which we cannot support this text.

If we agree that the polygraph is a tool that has its usefulness, raising it to the rank of evidence, not surrounding it with necessary guarantees, it is undoubtedly taking the risk of exposing itself to judicial errors. It would, in the end, be a fairness of approximately, not the one we adhere to and aspire to. I thank you.

We are pleased that a legal arrangement is finally coming. Until now, the use of the polygraph has only been regulated through circulation letters and jurisprudence of the Court of Cassation. The question came from the European Court of Human Rights.

The present bill is highly non-binding for the Flemish Interest. Also the Order of Flemish Balies, which yesterday distributed a press release, thinks so about it. According to them, the rights of defence are not guaranteed.

Article 3, § 4 of the bill: “The polygraph test is carried out on a voluntary basis. The refusal of a person to participate does not have any legal effect. The test can be interrupted at any time. There is also no legal consequence connected to this."For the Flemish Interest, this actually comes down to an empty box. It is a legal arrangement to meet Europe.

The fact that the results of a polygraph test are not infallible is a fact. This will be taken into account in the evidence process. Article 3, § 10: "The results of the polygraph test may only be taken into account as supporting evidence for other types of evidence."

According to the Flemish Interest, the results of such a polygraph test can be a perfect complement to other means of evidence. Just look at the numerous psychologists and psychiatrists who contradict each other. A polygraph test can clarify this. The fact that the tests cannot be enforced in any way and in any situation seems to us to be a missed opportunity. I think only of emergencies and terror threats.

Sometimes, unfortunately, reality surpasses fiction, and a further proposal could have met that.

Also the Order of Flemish Balies out of some concerns, including the rights of defence, which are not sufficiently guaranteed. In order to address this concern and to make this bill more coherent and complete, the Vlaams Belang submits seven amendments, which I will now briefly explain.

The first and third amendments can be discussed together. These two amendments concern the people who may be charged with applying for a polygraph test. The King’s Prosecutor and the Investigative Judge are charged with carrying out the investigation or judicial investigation. However, this also applies to the Federal Prosecutor and the Attorney General. The federal prosecutor is charged with heavy files, including human trafficking and terrorism. The Attorney General is responsible, among other things, for the file of the Bende van Nijvel. Therefore, it is important for our group that these actors also have the opportunity to make this investigative act without having to pass it first on to the investigative judge.

In this way, there can be instantly agitated and there is no loss of time to make the necessary determinations. Hence the amendment to add in Article 3, § 2, first paragraph and second paragraph after the word "Kings" "the Federal Prosecutor or the Prosecutor General".

As regards the second amendment, when conducting a criminal investigation, in some cases information is provided by spies and/or spies. The content of the information provided can sometimes be of great importance and determining for the further course of the investigation. At least, the possibility should be provided to suggest that tip-givers and regret-optants submit themselves to a polygraph test. The bill includes the possibility of taking a polygraph test from suspects, victims and witnesses. It is therefore only an evidence to include tipgivers and regretoptants in this list.

It is often about crucial information, information in which regret-optants may have a great interest in creating another truth in order to get punishment reduction.

There must be an opportunity to control these things. Regret optants should also be given the opportunity to present themselves to undergo a polygraph test. Now that is not possible. Our amendment states that the test could only be about the information provided by them, so not about everything that the file contains. Hence the question to add the following words in Article 3, § 2, first paragraph: "In the cases in which they have provided information, a polygraph test may also be proposed to be submitted to a polygraph test."

I am referring to the fourth amendment. As stated in Article 3, § 2, second paragraph, a request for a polygraph test may be rejected depending on the status of the examination. That decision is then clothed with reasons. For the sake of clarity, we propose to add that no appeal can be filed. The text is also clearer. If there was an appeal, while the state of affairs in the file has not changed, it would amount to the same decision. That is evidence, but by defining it in the law, it is pro forma and it is more clear that there is no appeal possible at that time and that the request is simply rejected. Hence the proposal to insert the words "which is not subject to appeal" after the word "decision" in Article 3, § 2, second paragraph.

The fifth amendment follows this. It is not because such a question is rejected that a request in the same file six months later, when another request for a polygraph test is submitted, would be permanently rejected. It may be that certain factors or developments in the investigation cause the dossier to evolve and that the relevant reason for refusal no longer exists. For this reason, it is appropriate to give the persons whose application was rejected the opportunity to submit a renewed application, after the expiry of a period of six months, counting from the date of the previous decision on the rejection of the prosecutor or investigative judge.

If the prosecutor or investigative judge would not have responded to the first or previous request, the six-month period may start one month after the initial or previous request was addressed to the prosecutor or investigative judge.

Article 3, § 2, second paragraph, is therefore supplemented as follows: "After the expiry of a period of six months, counting from the date of the initial or previous decision of the Prosecutor of the King, the Federal Prosecutor, the Prosecutor-General or the Investigative Judge concerning the rejection of the request for a polygraph test, the persons mentioned in Article 3, § 2, first paragraph, may submit a renewed application to the one who has rejected their request. If they would have failed to respond to the initial or previous request, the six-month period shall begin one month after the initial or previous request was addressed to them.

In the sixth amendment, we come to the categories of persons whose polygraph test cannot be taken: pregnant women, minors under the age of 16 and persons within 48 hours from their effective detention.

Article 3 § 5 paragraph 1 provides that before each polygraph test a alcohol, drug or drug test and psychological or psychiatric examination may be carried out for the persons to be subjected to the test. Persons with a physical or medical condition, whose consequences of their illness may have a certain impact on the results of the polygraph test, are not listed in this article.

Nor does a medical examination for this category of persons belong to the possibility, as set out in Article 3, § 5, first paragraph.

It is defensible that people with a heart defect, a disorder of the respiratory system or with certain symptoms of paralysis are also added to the category of persons whose polygraph test cannot be taken. After all, these medical conditions have a direct effect on the various registrations that are made when taking the polygraph test.

Since the aforementioned medical devices are not always visible to the naked eye, they may escape the application of Article 3, § 5, paragraph 3, which stipulates that the polygraphist may stop the polygraph test at any time if he doubts about the mental or physical health or condition of the person concerned and this person must enjoy a separate exceptional status. It is the logic of course that the medical condition should be demonstrated with a doctor’s certificate. Article 3 § 3 should therefore be supplemented with a fourth indent: "Persons suffering from a physical or medical condition which is previously attested by an expert that it may have an impact on the results of the polygraph test."

The last amendment – in fact also the only one of the seven amendments that I have now submitted and that I have not explained in the committee – must address the concerns of the OVB. Article 3, § 4, second subparagraph, third indent, provides that the person to be subjected to a polygraph test shall be informed orally and before the start of the test that, if he is assisted by an attorney, his attorney may follow the test from the follow-up chamber, without however having the right to intervene directly during the actual test or to interrupt the test.

The Flemish Interest shares the concerns of the OVB and considers that the aforementioned provision could lead to insufficient protection of the rights of defence and violation of the principle of equality. In concrete terms, reference could be made to the Salduz legislation, in particular as regards the prior confidential consultation with an attorney as well as the right to the assistance of an attorney during the taking of the polygraph test. Since Article 3(4)(3) provides that the person subject to a polygraphic test with knowledge of matters must agree by signing a process-verbal of consent, it is appropriate that the person requested to take a polygraphic test prior to signing the process-verbal of consent would have the right to a confidential consultation with his lawyer.

For that reason, we therefore propose to replace Article 3, § 4, second paragraph, third indent, with the following: "If he is assisted by a lawyer, he has the right to a confidential consultation with his lawyer prior to the eventful signing of the process-verbal of consent as provided in Article 3, § 4, third paragraph. In the event of the signing of the process-verbal of consent, the person who will be subjected to the polygraph test during the entire duration of the taking of the polygraph test has the right to the assistance of his lawyer.

We hope that these amendments will be approved across party boundaries. It is important to be able to advance a coherent and comprehensive legislation so that this law can be used adequately in the future.

This proposal for the introduction of the polygraph has already taken a decent path. It dates back to the previous legislature. I remember that colleague Nele Linnen stood firmly behind that at the time.

We would like to thank Open Vld for the constructive cooperation in the creation of this text. The strong amendment was taken into account both by our group and by the Cabinet of Justice.

This is not a simple matter. This has also been shown. But despite the complexity, today the lack of a legal arrangement is solved. In the field there was a huge gap.

The polygraph test is especially important in moral matters. Given the importance that our group attaches to the fight against violence against women and sexual violence, we have made efforts to regulate the use of the polygraph in a legal way as closely as possible.

Three things are important to us.

First, that we maximize the protection of the persons concerned.

Second, that the necessary results are obtained with regard to the accuracy of the device using which the test is carried out and that the criteria for this are established by a royal decree.

Finally, our group considers it very important that the results of a polygraph test should never be considered alone or can be counted as decisive evidence, but always serve as supporting evidence with other means of evidence. Therefore, we would like to support this proposal.

First of all, I would like to thank my colleagues who will support this bill. The bill has already gone a long way. Adjustments have been made following various opinions, also following a second reading, because we also want legal correct texts.

I would like to give you an overview, as an applicant. Today, this is the legislative framework for receiving polygraph testing. These tests are already taken today and used in investigations, but this is done, as Ms. De Wit has already said, on the basis of circulation letters dating from 2003.

Although our country has been progressive in the use of the technology, it was less when it comes to providing a legal basis. Taking these tests on the basis of an instrument that is not a formal law is perfectly legal, but by submitting it to Parliament we opt for a clear legal framework. In our view, this provides greater legal certainty and is also more compliant with European standards when there is a profound impact on private life, which could indeed be the case with such a test. For example, the ECHR requires a formal law.

Moreover, in recent years, not only the polygraphists have called for a legislative framework, but also the representatives of the police services, the Committee P and the magistracy have called for the introduction of this framework.

This proposal has already been submitted in the previous legislature. There were also hearings. Due to lack of time, we were not able to go to a vote. We are glad that this is possible today.

The lie detector, as it is called in popular terms, is a wrong term. There are for the polygraph both fierce for and opponents, believers and non-believers.

We no longer need to convince the supporters. That speaks for itself. However, I would like to give the opponents some reasons why we took the initiative to the proposal and why it is important.

Mr Aouasti referred in his presentation to our explanatory memo, in which we clarify that the term lie detector is a misunderstanding, because the device does not distinguish between lies and truth, but can only be a supporting evidence in criminal cases. So we find nothing new. The test is already used today and has already proven its success.

Through the various amendments and amendments we have incorporated different checks-and-balances. The test can only be done on a voluntary basis, which is important. Those who take a test will also be thoroughly informed, both verbally and in writing. The person concerned may also interrupt the test at any time. The person concerned may also simply refuse to take a test. In both cases, there can be no legal consequences. There can also be no confession of guilt.

There is also the assistance of a lawyer. Suspects, witnesses or victims may be asked to take a test. Those persons can also ask the test "self".

If confessions are made spontaneously during a polygraph test, the polygraph test is immediately stopped and an official hearing is conducted, with all related guarantees, as established, inter alia, by the Salduzwet.

With that last point, I would also like to refer immediately to the last amendment, which Ms. Bury has just discussed. The Court of Cassation has already ruled that the test does not violate the rights of defence. The proposed amendment is also unnecessary. Indeed, it is already stated in our text that the person subjected to a test has the right to the assistance of a lawyer. This assistance consists in the fact that the lawyer can be present when reading and signing the process-verbal of consent, thus in advance in the pre-test. He can therefore also follow the preparation and actual course of the polygraph test in the follow-up chamber.

A preliminary consultation is already possible. During the test, this is not possible. The space must be neutral and without influencing factors in order for the test to pass correctly.

We also understand, of course, that the polygraph test can never be the only evidence in a case. The test results can only be used to support other types of evidence. In addition, there are also categories of persons excluded from participating in the test. These include pregnant women, minors under the age of 16 and persons deprived of their liberty during the first 48 hours after their deprivation. For minors over the age of 16, we provide additional protection: they must sign the process-verbal of consent, always together with their lawyer. So if their lawyer or themselves refuse to do so, the test cannot take place. The adjustments were made through our amendment; concerning that principle for sixteen and over, we only addressed legal arguments after the second reading, in order to make the text more legal correct.

In the past, people with heart disease were excluded from the test, but the current techniques have evolved so that it is no longer an obstacle. The responsibility for deciding whether a person is capable of passing a test lies with the polygraphist, who should report on it.

When it comes to the so-called lie detector, better the polygraph test, skeptics repeatedly question the reliability. However, in the hearings we received sufficient information and data on the percentage of accuracy of the test. Some speak of 95%, but we refer to a prestigious study by the US National Research Council, which found a 80% reliability based on 37 laboratory experiments and field studies.

As I just said – and this does not happen much in legislation that has yet to be approved – the use of the polygraph has already been allowed by the Court of Cassation in the criminal investigation, insofar as the person concerned voluntarily cooperates in it and can withdraw at any time. In this way, according to the Court of Cassation, the right to silence is not disregarded. The presumption of innocence is also not neglected; jurisprudence from 2006 and 2013 confirm that. We have therefore taken all guarantees into account in the bill that is being submitted to the vote today.

Given the fact that the bill came on request from people from the practice, both at the police and Justice, and incorporates all sorts of guarantees, we are convinced that the text is a balanced whole where no one’s rights are violated and where the finding of truth and the settlement of matters can only benefit.

I would like to thank again the colleagues who support and will approve this bill.

The purpose of the bill is to provide a legal basis, a legal basis claimed by the professional sector and by the European Court of Human Rights.

Auditions were held in 2018. In the light of these hearings, it appeared that the bill had not yet been prepared.

This is a police practice accepted by jurisprudence. Opponents of the texts, including lawyers, wonder whether legislation in this field is useful and necessary, as they consider that there are many controversies about the question of the reliability of this technology.

If the bill is adopted, the risk is high that it will confer an intrinsic validation in the spirit of the judicial and police authorities, but also in that of the public opinion.

Isn’t it dangerous to rely too easily on this technology? It should also be taken into account the fact that the psychological judicial expertise practiced by graduate professionals is not registered as such in the Code of Criminal Instruction.

Several lawyers members of the Criminal Commission of AVOCATS.BE were able to find themselves the intrinsic lack of reliability of the polygraph in the context of several recent criminal files.

It also appeared that the polygraphic test is not legally considered a hearing within the meaning of Article 47bis of the Code of Criminal Instruction. This is a complete hearing. And the Belgian and European legislation expressly wanted to grant guarantees to the person who was heard (cf. Salduz Act) by allowing in particular the lawyer to remind the interested party, during the hearing, of her right to silence.

The purpose of the presence of the lawyer at the hearing is to enable control of the respect of the right of the person not to accuse himself, to answer or not, or even to remain silent, of the treatment reserved for the person interviewed during the hearing, in particular with regard to the manifest exercise of unlawful pressure or coercion.

Even though the proof limits of the polygraph test are well defined, the fact of introducing it into the Code of Criminal Instruction gives it a place that can give rise to confusion, without having all the guarantees of reliability.

For these reasons, we find it difficult to give our voice to this text. That is why we will abstain.

Mr. Speaker, dear colleagues, the inclusion of the use of the polygraph among the forms of legal evidence that can be used in the framework of a criminal investigation is, in itself, nothing revolutionary since the proposal, in reality, aims to label in the law a practice that already exists, but which has so far been governed only by circular general prosecutors and by the jurisprudence.

However, this practice is becoming increasingly common. It was used more than 6,300 times between 2001 and April 2019, so a clear legal framework was necessary.

In addition, it is a request expressly formulated by the Committee P, to which the Association of Investigative Judges has declared itself favorable. Belgium also has extensive expertise in this area, since polygraphy is now practiced by six duly trained polygraphists working within the Federal Central Police, more specifically in the Department of Behavioral Sciences of the Central Direction of the Technical and Scientific Police. This is how my colleagues from Open Vld submitted their bill for the first time in 2017, already under the previous legislature. This proposal resulted in expert hearings, which made it possible to highlight the labels that should be provided.

The question today is whether the framework provided in the new bill provides enough tags to respect the subtle and necessary balance between, on the one hand, the necessities of the criminal investigation and the reliability of the results obtained, and, on the other hand, the rights of defence.

I would like to clarify from the beginning that my group is in favor of the use as such of the polygraph. This is why I have co-signed several amendments in the committee, including those that have made it clear that the polygraphic test can only be carried out if there are serious indications that the punishable facts constitute a crime or a crime. Similarly, these co-signed amendments provide that the results of the polygraphic test can only be taken into account as evidence corroborating other means of evidence.

I co-signed these amendments because the polygraph has already proven its usefulness in cases where evidence is ⁇ difficult to bring, in particular cases of sexual offenses. This is not about providing evidence as such, as the test results always have a margin of error. Statistics show that 65 to 70 percent of people tested say the truth. But it is about guiding the criminal investigation by corroborating the elements of evidence already collected. This is why the principle of subsidiarity has been incorporated in the bill. The polygraph can never constitute the purpose or the final point of the investigation. The evidence must be supplemented by other elements.

Other fundamental principles have also been enshrined in the bill, such as the judge’s discretion as to the proof value to be attached to the test result, or even the interested party’s voluntary collaboration, so that the refusal to submit to it will not have legal effects and can not be considered as proof of guilt. Similarly, the test can be discontinued at any time, without producing any legal effect. In addition, the proposal specifies that the person must be in good physical and mental condition.

It is of course that a mythoman, a schizophrenic or even a person who would be under the influence of drugs or alcohol cannot participate in such a test.

However, two points of the text are fundamentally problematic to us, which forces us to abstain when voting on the entire text recently. The first point is the fact that the person can only be assisted by his lawyer before and after the test, but not during this test. In any case, the lawyer will not be able to be at his side, but in a courtroom, and therefore will not be able to intervene directly during the test, nor to interrupt it.

All this arises from a controversy that ultimately exists about the very nature of the polygraphy, namely whether or not it is an hearing within the meaning of Article 47bis of the Code of Criminal Instruction, which accompanies the assistance of a lawyer.

In this regard, we support the opinion given by both AVOCATS.BE and the Association of Investigative Judges, according to which the polygraph test constitutes a full-time hearing, during which substantial questions concerning the facts of the case are asked to the person concerned, to which the person concerned is required to answer, so that all the guarantees that the European and Belgian legislature have expressly intended to grant to the person being heard must also preside over the course of the polygraph hearing.

In this regard, during his hearing in the Justice Committee in April 2019, Mr. Cornelis, who is the representative of the Department of Behavioral Sciences of the federal police, himself emphasized that "polygraphy can only be applied through the voluntary cooperation of the person, with the maintenance of all his rights under the Franchimont and Salduz laws".

As the Association of Investigative Judges has pointed out, the inability for the lawyer to interrupt the test poses a real constitutional problem in that a normal hearing could be interrupted at the request of a lawyer, but not when it was a polygraph hearing.

The second point that fundamentally poses us a problem is the possibility of submitting a minor, from the age of 16, to a polygraphy test.

As highlighted by Yves Liégeois of the College of Attorneys General at his hearing in April 2019, the polygraphic test is not recommended for minors. If it would be provided despite everything in the law, the assistance of a lawyer should then be mandatory. Nevertheless, despite the fact that the minor cannot renounce the assistance of a lawyer, it is considered in the bill that the signing of a protocol of consent by that minor and his lawyer would be sufficient to deprive the minor of his right to the assistance of a lawyer at the time of the hearing.

Such a arrangement is in our view contrary to the reading of the rights of the child made by the UN Committee on the Rights of the Child according to which, in order for children to be validly heard, States are obliged to provide them with appropriate legal assistance, including through lawyers. The Committee also specifies that the minor, due to its greatest vulnerability, must be accompanied by a lawyer at all stages of the judicial procedure and not at some of them.