Proposition 55K0743

Projet de loi modifiant diverses lois sur la navigation relatives à l'application des dispositions légales dans le domaine de la navigation.

General information ¶

Authors

Open Vld Christian Leysen, Tim Vandenput, Marianne Verhaert

Submission date

Nov. 12, 2019

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

administrative procedure administrative sanction fine offence criminal procedure

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP DéFI Open Vld N-VA LDD MR VB

Voted to reject

PVDA | PTB

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Discussion ¶

Jan. 14, 2021 | Plenary session (Chamber of representatives)

Full source

Mr Jef Van den Bergh, rapporteur, refers to his written report.

This proposal is in a double context. On the one hand, the introduction in 2016 of provisions aimed at sanctioning, by administrative fines, the non-compliance with the laws on navigation, with an upward revision of certain amounts of these fines. It is now a matter of no longer returning a part of these, the less heavy, fines to the prosecutor’s office, to speed up the imposition of penalties. This is one of the main objectives of the proposal submitted by my colleague.

On the other hand, this proposal, I also have to say, is part of an unfortunate overall tendency to discharge prosecutors from some of their tasks, given the general lack of justice resources. This is a trend that must be countered, but in the long run, by a gradual refinancing of Belgian justice.

Until then, we are in a mid-two and we can only see that this lack of means from the judiciary is hurting the swift enforcement of the law, including for minor browsing offences. For our group, this is not a good signal, on a dissuasive level, ⁇ in the fight against pollution.

As a commission, we were able to dispose of the figures of the Office of administrative fines of the General Directorate of Navigation of SPF Mobilité. This system works with almost 500 infringements per year, with penalties that can be heavy on the financial level. Furthermore, in terms of the downturn from the 2016 scheme, we know that most of the minutes concerning violations of navigation laws are systematically transmitted by the public prosecutor to the Administrative fines service of the SPF Mobilité.

Shortening the procedures through this provision will, we hope, have a more deterrent effect on behaviors and pollution, as long as the means of control follow, of course. This decriminalization should also allow to rethink the role of the prosecutor’s office for the most serious environmental offences.

Criminal prosecution is always possible in cases of double offences involving environmental legislation. This is the case of offences contained in Articles 15, 16 and 17 of the Law on the Protection of the Marine Environment, offences relating to incineration, immersion and disposal of waste. These offences are punishable by fines from 100,000 to 1 million euros or imprisonment from two months to two years.

The continuation of this type of prosecution, ⁇ with prison sentences, seems to us to be a strong element on a symbolic level. Therefore, for our group, the balance is achieved in terms of efficiency and adaptation to a context derived from the history of this legislation set up in 2016, but also by ⁇ ining heavy sanctions against pollution.

It is important to have effective legislation to protect the marine environment. We must continue to work on this issue. I recall in this regard the very strong ambitions of Vivaldi in this matter, in particular in relation to the willingness to include ecocide in our criminal code.

The PVDA voted against this proposal because we consider the depenalization of environmental pollution a bad signal. Certain infringements will no longer be subject to imprisonment; from now on, only administrative fines will be imposed. We consider that a false signal for the protection of our marine habitat.

The administrative enforcement does not take victims into account: civil dispute does not exist in administrative or administrative enforcement. As a disadvantaged party, you are therefore not involved in the procedure. They do not even have the right to be informed. In case of damage, compensation must be obtained through a separate civil procedure. If an NGO becomes aware of a deposit at sea with far-reaching effects on nature, the NGO can no longer stand for a civil party as a result of the proposed legislative amendment. However, such a procedure is much more accessible than a civil procedure for compensation.

We still have a number of principled reasons not to welcome the depenalization. To this ends a power which actually belongs to the judiciary, yet to the government. In very small facts with lower penalties, the transfer is not necessarily problematic, but an extensive depenalization, in which even more serious crimes such as here may be the case, are dealt with by the official, is not opportune from the idea of the separation of powers.

The tendency to subject matters to civil enforcement is also part of a vicious circle, where more and more resources are spent on administrative enforcement and less and less on criminal enforcement at the expense of the prosecutors, who are in fact heavily underpinned. If more investments were made in the parquet, a faster enforcement would also be possible. We regret that the Green-Eco-Fraction has gone so far here.

The system of administrative fines for violations of federal shipping laws was introduced by Minister De Backer through the law of 25 December 2016 and is in force for four years. In the initial phase, it was intended to provide only administrative fines as an alternative to criminal fines. If there are mixed infringements, such as a discharge, Mrs Vindevoghel, there can still be a criminal prosecution. This is only about violations of the Shipping Law.

In the meantime, on the basis of the experience gained, we can put into effect a second phase, namely the depenalization of certain infringements which can only be punished with a fine and which therefore are better completed at the administrative level, or infringements which the public prosecutor has shown to be passing them by default to the competent department.

It is therefore a reinforcement and improvement of the system, by keeping the time between the infringement and the sanction measure as short as possible by allowing the competent service to act immediately after receipt of the minutes without having to wait for the decision of the public prosecutor. In this way, the time between the establishment of the infringement and the imposition of the sanction measure is significantly shortened. For example, intrusions in wind farm parks can be handled directly by the competent service.

It also includes one competent authority, one uniform procedure, one decision, and one final appeal. And all this with respect for the rights of defence.

Further decriminalization of offences is also part of the international tendency to decriminalize seafarers. In addition, this bill improves the procedure for administrative prosecution by, among other things, facilitating the procedure with foreign suspects, namely: if no legal representative is designated in Belgium, the ship agent is suspected to be the legal representative of the suspected perpetrator. In addition, the option of choice of residence has also been made possible, so that all notifications to that residence in Belgium can be made. It also provides that the costs of the proceedings can be transferred to the perpetrator and that the minutes of the procedures for decentralised infringements should only be delivered to the competent department, which reduces the administrative burden for the competent inspectors.

In addition, the competent service shall be given the opportunity to obtain all information free of charge from all public services, in order to make a correct decision.

Finally, the sanctions options of the Shipping Research Council will also be modified. The disciplinary body for seafarers will be able to impose the participation of compulsory repetition or retraining classes, compulsory simulator time and/or the passing of an exam.

Colleagues, in times when the courts are overloaded, especially now with the appeals against coronaboetes, this additional depenalization of violations of federal shipping laws and their implementing decisions will mean a welcome relief. As the Shipping Code came into force between the submission of this proposal and the final vote today, we had to improve the bill with several amendments, often to adjust references to legislation repealed or amended. This proposal is therefore fully in line with the new Shipping Code.

I would like to express my thanks to all those who have contributed to this proposal and have ensured that this proposal has been adapted to the amending legislation. The system of administrative fines has been shown to support an effective enforcement policy by combating impunity. I don’t think anyone can object to this and therefore expect that this bill can be approved with your support.