Samenvatting Strafvordering (1).docx

# General principles of criminal procedure This section introduces the fundamental principles of criminal procedure, defining its scope, distinguishing it from substantive criminal law, and outlining the objectives of the criminal justice system. ## 1. General principles of criminal procedure ### 1.1 Definition of criminal procedure law Criminal procedure law, also known as formal criminal law or the administration of criminal justice, encompasses the procedural rules that govern the application of substantive criminal law. It dictates how governmental authorities, such as judges, public prosecutors, and the police, must act to enforce criminal laws. While "strafvordering" (prosecution) in a narrow sense refers to initiating criminal proceedings, criminal procedure law broadly covers the entire process. ### 1.2 Distinction between substantive and formal criminal law #### 1.2.1 Substantive criminal law Substantive criminal law defines which behaviors are criminalized and the corresponding sanctions. It establishes offenses (misdrijven) and their penalties. #### 1.2.2 Formal criminal law (criminal procedure law) Criminal procedure law governs the investigation, prosecution, and adjudication of individuals suspected of committing offenses. It specifies the procedures, formalities, and legal positions of all involved parties. #### 1.2.3 The criminal justice chain The application of criminal law follows a chain: 1. **Criminal Law:** The criminal code defines punishable acts and their conditions. 2. **Investigation (Opsporing):** Identifying the perpetrator and gathering evidence. 3. **Disposition:** This can lead to either dismissal (seponering), out-of-court settlement, or prosecution (vervolging) by the Public Prosecutor's Office (Openbaar Ministerie - OM). 4. **Adjudication (Berechting):** The criminal judge conducts a full investigation and imposes a sentence if the accused is found guilty. 5. **Enforcement of Sentence (Strafuitvoering):** This phase, such as imprisonment, is not typically covered within the scope of criminal procedure courses. ### 1.3 Sources of criminal procedure law * **Constitution (Grondwet):** Establishes fundamental rights, such as the public nature of hearings and judgments, provisions on the judiciary, and criminal responsibility for parliamentarians and ministers. * **Code of Criminal Procedure (Wetboek van Strafvordering - Sv.):** The primary source of criminal procedure law. * **Preliminary Title of the Code of Criminal Procedure (Voorafgaande Titel bij het Wetboek van Strafvordering - VTSv.):** Precedes the main code. * **Historical Context:** The current Code of Criminal Procedure dates back to 1808 (Napoleonic era), with numerous amendments over time. Significant reform attempts in 1962 and the 1990s (the "Grote Franchimont") did not result in a completely new code. * The "Kleine Franchimont" in 1998 enhanced party rights in judicial investigations without fundamentally altering the investigating judge's role. * Numerous amending laws and "omnibus" amending laws have been enacted since, including those focusing on digitization and legislative changes in 2023/2024. * A new bill to introduce a completely revised Code of Criminal Procedure was proposed in 2020 but did not pass. A key aim was to establish a single type of preliminary investigation instead of the current two (investigative and judicial). * The "De Wever" governing accord for 2025 signals a reform of criminal procedure aimed at modernization, efficiency, and acceleration, addressing procedural disparities and potentially re-examining the role of the investigating judge and public prosecutor while preserving judicial oversight of coercive measures. * **Impact of the New Criminal Code (in effect from April 8, 2026):** The term "misdrijven" (offenses) will replace "misdaden," "wanbedrijven," and "overtredingen" (felonies, misdemeanors, and contraventions). However, the Code of Criminal Procedure still utilizes this classification for structuring its provisions, necessitating concordance adjustments. The classification of offenses will be adjusted to align with the new criminal code's penalty levels. #### 1.3.1 Old criminal law classification (until June 8, 2026) Historically, offenses were categorized based on penalty levels: * **Misdaad (Felony):** The most serious offenses, carrying criminal penalties like imprisonment (five years to life) or fines of 26 euros and above. Cases were typically handled by the Court of Assises. * **Wanbedrijf (Misdemeanor):** Less serious offenses, punishable by correctional penalties such as imprisonment (eight days to five years), electronic monitoring, community service, or fines of 26 euros and above. Cases were heard by correctional courts. * **Overtreding (Contravention):** The least serious offenses, punished by police penalties, including imprisonment (one to seven days) or fines of one to 25 euros. Cases were heard by police courts. This classification influenced the jurisdiction of courts. Provisions for mitigating circumstances could lead to "correctionalization" (handling a felony as a misdemeanor) or "contraventionalization" (handling a misdemeanor as a contravention) by prosecutors or investigating courts, a practice that will not be necessary under the new Criminal Code. ### 1.4 Objectives of the criminal justice system The criminal justice system aims to balance competing interests: * **The Community:** Ensuring the punishment of crime. * **The Victim:** Seeking compensation for damages. * **The Suspect:** Guaranteeing a fair trial, including the rights of defense. It is important to note that not every crime has a known victim, and victims are only formal parties to criminal proceedings if they choose to join as a civil party (burgerlijke partij) to claim damages. Their input is generally limited to civil claims, not the imposition of criminal sentences. The criminal procedure has a dual purpose: #### 1.4.1 Truth-finding (Waarheidsvinding) This objective, from the public interest perspective, involves uncovering the truth behind criminal acts. It focuses on how evidence is gathered and used to determine guilt. #### 1.4.2 Protection of individual fundamental rights (Bescherming van de individuele grondrechten) This objective, from the perspective of the individual citizen, acknowledges that truth-finding can sometimes involve measures that infringe upon fundamental rights (e.g., house searches impacting privacy). These measures are only permissible if provided for by law and under strict conditions. Key legal sources for these rights include Article 6 of the European Convention on Human Rights (ECHR) and Article 14 of the International Covenant on Civil and Political Rights (ICCPR), as well as various articles in the Belgian Constitution (e.g., Articles 12, 13, 14, 15, and 29). #### 1.4.3 Balancing truth-finding and individual fundamental rights (Onderlinge afweging van waarheidsvinding en individuele grondrechten) The balance between these two objectives has historically shifted. The 19th and early 20th centuries prioritized truth-finding. The introduction of the ECHR and subsequent legal developments, including the Constitution and the 1998 "Wet Franchimont," have given greater weight to the protection of individual rights. > **Tip:** The balance between truth-finding and individual rights is dynamic. Legal reforms and judicial decisions continually shape this equilibrium. This balancing act requires that any infringement of rights be justified. For instance, coercive measures often require a motivated order from an investigating judge and adherence to specific procedural requirements. The jurisprudence of the Court of Cassation, particularly the "Antigoon ruling" of 2003, indicates a potential shift back towards a greater emphasis on truth-finding, suggesting that not all unlawfully obtained evidence must necessarily be excluded. ### 1.5 Accusatorial vs. Inquisitorial systems The criminal justice system can be broadly characterized as either accusatorial or inquisitorial, or a hybrid of both. #### 1.5.1 Principles of accusatorial and inquisitorial systems * **Inquisitorial:** Characterized by an investigative phase where an investigating judge or prosecutor actively gathers evidence and questions suspects. This phase is often secret. * **Accusatorial:** Characterized by an adversarial process where parties (prosecution and defense) present their cases before a neutral judge. This phase is typically public. #### 1.5.2 Practical application In Belgium, the preliminary investigation phase is largely inquisitorial, while the trial phase (onderzoek ten gronde) is more accusatorial. Many European countries, influenced by the European Court of Human Rights, are moving towards more accusatorial models. ### 1.6 The course of criminal proceedings Criminal proceedings are broadly divided into two main phases: #### 1.6.1 Preliminary investigation (Vooronderzoek) This phase aims to identify suspects and gather sufficient evidence to potentially secure a conviction. If insufficient evidence is found, the investigation is closed without a judgment on the merits. * **Investigative Investigation (Opsporingsonderzoek):** Conducted by the Public Prosecutor's Office, this is the most common type of preliminary investigation. It typically proceeds without direct involvement of an investigating judge, unless coercive measures requiring judicial authorization are necessary. * **Judicial Investigation (Gerechtelijk onderzoek):** Conducted by an investigating judge. This type of investigation is initiated when coercive measures on a "black list" are required, or if the investigating judge "evokes" (takes over) the case, or upon a complaint with joinder of civil action (klacht met burgerlijke partijstelling). * **Control:** The Investigation Chamber (Kamer van Inbeschuldigingstelling) oversees judicial investigations. * **Conclusion:** The Investigation Chamber or the Council Chamber (Raadkamer) concludes the judicial investigation. #### 1.6.2 Trial (Onderzoek ten gronde) This phase involves the courts rendering a decision on the merits of the case, determining guilt and imposing sentences. * **Publicity:** Hearings and judgments are generally public, with limited exceptions for reasons of public order or morality. * **Adversarial nature:** The process is adversarial, with the prosecution and defense presenting their arguments. * **Oral proceedings:** Court proceedings are generally oral, though written submissions are common. ### 1.7 The role of evidence The document mentions the "Antigoon ruling" which may allow for the admissibility of unlawfully obtained evidence in specific circumstances. This reflects a balancing act between procedural fairness and the pursuit of truth. --- # Stages and characteristics of criminal proceedings This topic outlines the procedural stages of criminal proceedings, contrasting inquisitorial and accusatorial systems, and detailing the pre-trial and trial phases. ### 2.1 The inquisitorial and accusatorial systems Criminal proceedings can be broadly categorized into two main procedural systems: inquisitorial and accusatorial. #### 2.1.1 The inquisitorial system In a largely inquisitorial system, the pre-trial investigation phase is characterized by its secret nature. The judge or investigating magistrate plays a more active role in gathering evidence and questioning suspects. This phase focuses on establishing the facts and identifying potential perpetrators, with a less adversarial approach compared to accusatorial systems. #### 2.1.2 The accusatorial system In an accusatorial system, the trial phase is more prominent and public. The proceedings are characterized by a debate between the prosecution and the defense, with the judge acting more as an impartial arbiter. This system emphasizes the adversarial nature of the proceedings, where parties present their arguments and evidence before a judge or jury. #### 2.1.3 Blending of systems in practice In practice, most legal systems, including the Belgian system, exhibit a blend of both inquisitorial and accusatorial elements. The pre-trial investigation phase often leans towards inquisitorial principles, emphasizing secrecy and the role of the investigating magistrate. Conversely, the trial phase (investigation on the merits) is more accusatorial, with a focus on publicity and adversarial debate. The influence of the European Court of Human Rights (ECtHR) has led to a general trend towards more accusatorial features across Europe. ### 2.2 The course of criminal proceedings Criminal proceedings are generally divided into two main phases: the pre-trial investigation and the trial phase (investigation on the merits). #### 2.2.1 Pre-trial investigation The primary goal of the pre-trial investigation is to identify suspects and gather sufficient evidence to determine whether a conviction is possible. If insufficient evidence is found, the investigation is terminated, and no judgment is made on the merits of the case. ##### 2.2.1.1 Investigative and judicial investigation * **Investigative investigation (Opsporingsonderzoek):** This is the most common type of pre-trial investigation, handling approximately ninety percent of criminal cases. It is typically led by the Public Prosecutor's Office (Openbaar Ministerie - OM) and its auxiliary officers. The involvement of an investigating judge is generally not required, unless coercive measures are necessary, such as a house search without the suspect's consent or in cases where the suspect is not caught in the act. If coercive measures requiring judicial authorization are involved, the investigation may transition into a judicial investigation. The Investigative investigation can conclude with a decision not to prosecute (dismissal), prosecution (direct summons to the trial court), or a request for a judicial investigation. Diversionary measures, such as amicable settlements or mediation, are also possible outcomes. Less than twenty percent of cases result in actual prosecution. * **Judicial investigation (Gerechtelijk onderzoek):** This type of investigation is conducted under the leadership of an investigating judge. It can be initiated in several ways: * When coercive measures that are on a "black list" are to be employed (e.g., house searches, arrest warrants, wiretaps). * Even if the coercive measure is not on the black list, the investigating judge can take over the case through a process called "evocation." * Following a complaint with a civil party claim, where the victim initiates criminal proceedings. * When the investigating judge is personally involved in a case of being caught in the act (autosaisine). The judicial investigation is overseen by the Chamber of Accusation (Kamer van Inbeschuldigingstelling), which supervises its regularity. It concludes with a decision by the Chamber of Indictment on the regulation of the proceedings, determining whether the case should be referred to the trial court. The Public Prosecutor's Office, which holds the monopoly on prosecuting, is involved in this final stage. ##### 2.2.1.2 Characteristics of the pre-trial investigation * **Secrecy (Het geheim van het vooronderzoek):** Both investigative and judicial investigations are conducted in secret. This is to prevent obstruction of the investigation and to protect the reputation of the suspect, upholding the presumption of innocence. While parties have some limited rights to access information, especially after the investigation phase or in cases of detention, the general principle remains secrecy towards the public. Violations of professional secrecy by magistrates or police officers can lead to criminal sanctions. * **Non-adversarial nature (Niet-tegensprekelijk karakter):** During the pre-trial investigation, the suspect does not have the right to challenge evidence or present defense arguments in a fully adversarial manner. This is because the investigation is not yet deciding on the merits of the case. However, reforms have introduced more rights for suspects to request further investigative measures, with possibilities for appeal. * **Written nature (Het schriftelijk karakter van het vooronderzoek):** Every investigative act is documented in writing, forming a case file that serves as the basis for the trial. This raises a debate about whether judges become mere verifiers of the pre-trial investigation, though this is less so in cases that go to trial by jury, where witnesses are heard anew. #### 2.2.2 Investigation on the merits (Onderzoek ten gronde) This phase involves the actual trial where a judgment is made on the merits of the case, determining guilt and imposing a sentence. ##### 2.2.2.1 Publicity of hearings and judgments The Belgian Constitution mandates the publicity of court hearings and judgments, serving as a crucial democratic control mechanism. Exceptions to public hearings are allowed for reasons of public order or morality, but there are no exceptions to the publicity of judgments. ##### 2.2.2.2 Adversarial nature of the proceedings The investigation on the merits is adversarial. It involves a debate between the prosecution (OM) and the defense (accused). The accused has the right to present their defense, and the principle of "equality of arms" is paramount. ##### 2.2.2.3 Oral nature of proceedings Court proceedings are primarily oral, with oral arguments from the prosecution and defense. While written submissions are possible, judges are obliged to respond to all defense arguments. A written record of the proceedings, such as the trial minutes, is kept. ### 2.3 Key actors in criminal proceedings Several actors are involved in the criminal proceedings, each with distinct roles and rights. #### 2.3.1 The suspect The suspect is the person suspected of committing a criminal offense. The presumption of innocence applies until guilt is proven. Different statuses exist for a suspect depending on the phase of the proceedings, including "suspect," "charged person," "accused," and "convicted person." Legal entities can also be held criminally responsible. #### 2.3.2 The victim There has been increasing attention to the victim's role in criminal proceedings. Victims have rights to be treated with respect and can pursue civil claims for damages. Various statuses have been created, including the "victim in general," the "injured person" (benadeelde persoon), and the "civil party" (burgerlijke partij). The latter can initiate criminal proceedings but primarily seeks compensation. #### 2.3.3 The civilly liable party This refers to individuals or entities who are civilly liable for the damage caused, even if they are not the perpetrator (e.g., parents of a minor who committed an offense). #### 2.3.4 The police Police officers perform both administrative police duties (e.g., maintaining public order) and judicial police duties (e.g., investigating crimes, gathering evidence). They operate under the authority of the Public Prosecutor's Office. #### 2.3.5 The Public Prosecutor's Office (Openbaar Ministerie - OM) The OM leads the investigation (unless it's a judicial investigation), prosecutes offenses, and handles diversionary measures. They have a monopoly on exercising criminal prosecution. The OM is hierarchically organized and must act impartially, collecting evidence both for and against the suspect. #### 2.3.6 The investigating judge The investigating judge leads judicial investigations, gathers evidence, and authorizes coercive measures. Their role has been subject to reform and debate, with a trend towards a more limited role. #### 2.3.7 The investigating courts These courts, namely the Chamber of Indictment (Raadkamer) and the Chamber of Accusation (Kamer van Inbeschuldigingstelling), act as an interface between the pre-trial investigation and the trial. They control the sufficiency and regularity of the evidence and regulate the proceedings. #### 2.3.8 The trial courts (Vonnisgerechten) These courts are responsible for judging the merits of the case, determining guilt, and imposing sentences. They include the Police Court, the Correctional Court, the Court of Assizes, and higher appellate courts. #### 2.3.9 Criminal execution courts These courts oversee the execution of sentences, including decisions on limited detention, electronic monitoring, and conditional release. ### 2.4 Diversionary measures and alternatives to prosecution The Belgian criminal justice system increasingly utilizes diversionary measures to resolve cases outside of a full trial. #### 2.4.1 Amicable settlement (Minnelijke schikking) This allows the Public Prosecutor's Office to propose a settlement involving the payment of a sum of money or forfeiture of goods, leading to the termination of criminal prosecution. #### 2.4.2 Mediation and measures (Bemiddeling en maatregelen) This involves the suspect agreeing to comply with certain measures or participate in a mediation process, resulting in the cessation of criminal proceedings upon successful completion. #### 2.4.3 Immediate police settlement (Onmiddellijke minnelijke schikking - OMS) This is a streamlined procedure, often used for minor offenses like personal drug possession or shoplifting, allowing for on-the-spot settlements by police officers, with subsequent approval by the Public Prosecutor's Office. #### 2.4.4 Order to pay (Bevel tot betalen) Introduced by recent legislation, this mechanism allows the Public Prosecutor's Office to issue an order to pay for certain offenses if an amicable settlement is not reached, with increased costs if not paid within a set timeframe. #### 2.4.5 Prior admission of guilt (Voorafgaande erkenning van schuld) This process, influenced by common law plea bargaining, allows a suspect to admit guilt in exchange for a potentially milder sentence, subject to judicial approval. ### 2.5 Stages of criminal proceedings in practice 1. **Pre-trial investigation:** * **Investigative investigation:** Led by the Public Prosecutor's Office, focusing on gathering evidence. * **Judicial investigation:** Led by an investigating judge, typically when coercive measures are involved. 2. **Regulation of proceedings:** Investigating courts (Chamber of Indictment) decide whether to refer the case to trial. 3. **Trial (Investigation on the merits):** Public, adversarial, and oral proceedings before a trial court. 4. **Sentencing:** If found guilty, the court imposes a sentence. 5. **Criminal execution:** The sentence is carried out, overseen by criminal execution courts. ### 2.6 Guiding principles * **Presumption of innocence:** A suspect is considered innocent until proven guilty. * **Right to a fair trial:** Encompasses rights to legal representation, to be informed of charges, and to present a defense. * **Publicity of proceedings:** Court hearings and judgments are generally open to the public. * **Adversarial principle:** Both prosecution and defense have the opportunity to present their case. ### 2.7 Key concepts * **Opportunity principle (Opportuniteitsbeginsel):** The Public Prosecutor's Office has discretion in deciding whether or not to prosecute. * **Legality principle (Legaliteitsbeginsel):** In contrast, some systems require prosecution for all offenses. * **Dismissal (Sepot):** A decision by the Public Prosecutor's Office not to prosecute a case. * **Diversionary measures:** Alternatives to prosecution aimed at resolving cases outside the traditional court system. * **Equality of arms (Wapen gelijkheid):** The principle that the prosecution and defense should have equal opportunities to present their case. --- # Actors in the criminal justice system This section details the various actors within the criminal justice system, outlining their distinct roles, rights, and responsibilities. ## 3.4 Actors in the criminal justice system ### 3.4.1 The suspect The suspect is the central figure in the criminal justice process, defined as the person suspected of having committed a criminal offense. Throughout the proceedings, the presumption of innocence applies until guilt is proven. #### 3.4.1.1 The different statuses of suspect The term "suspect" is an umbrella term encompassing individuals at various stages of the criminal investigation, with their specific designation depending on the phase and the gravity of the suspicions against them. * **Suspect:** Generally refers to someone during a preliminary investigation. * **Person charged (inverdenkinggestelde):** Applies when a judicial investigation is underway and the suspect is identified. * **Accused (beschuldigde):** A formal designation. * **Defendant (beklaagde):** Used in cases before the correctional or police court. * **Convicted person (veroordeelde):** After being found guilty and the judgment has become final. This status no longer carries the presumption of innocence, though rights still exist in the sentence execution phase. The rights associated with these statuses have become more aligned over time due to jurisprudence from the Constitutional Court, meaning a suspect now often possesses rights previously exclusive to a person charged. #### 3.4.1.2 Legal persons as suspects Legal persons can also be suspects, represented by an ad hoc representative appointed to defend their interests, particularly when the legal representative's interests conflict with those of the legal person. #### 3.4.1.3 The lawyer The suspect and their lawyer together form "the defense." The confidentiality of communications between them is legally protected. The right to a defense, as established by the European Court of Human Rights (ECHR) and codified in laws like the Salduz law, includes the right to legal assistance during interrogations. ### 3.4.2 The victim There has been a growing emphasis on the victim's role within the criminal justice system. #### 3.4.2.1 General situation Victims are not automatically parties to a criminal proceeding; their participation is contingent on becoming a civil party. However, even if not a civil party, judges are obliged to consider potential civil interests. The law mandates the correct treatment and handling of victims. #### 3.4.2.2 Victim-friendly treatment This includes access to justice assistants for reception and support, both within and outside the judicial system. Victims have rights during the sentence execution phase, such as the right to be heard and to receive information about decisions made by the sentence enforcement courts, including a perpetrator's release or conditions for release. #### 3.4.2.3 Restorative justice between offender and victim Restorative justice processes are entirely extra-judicial, allowing victims and offenders to meet in the presence of a mediator to address trauma and foster understanding. The outcomes are only included in the criminal file if both parties consent. #### 3.4.2.4 The injured person Introduced by a law in 1998, this status serves as an intermediate step between a victim and a civil party. An injured person formally declares damage suffered and has the same rights as a suspect but is not a party to the proceedings and cannot claim damages directly. #### 3.4.2.5 The civil party A victim can become a civil party to claim damages. While they cannot advocate for a harsher sentence (this is the monopoly of the Public Prosecutor's Office), they can initiate criminal proceedings through a complaint with civil party status, potentially preventing the case from being dismissed. However, if unsuccessful, they may be ordered to pay court costs. #### 3.4.2.6 Towards an actio popularis? While traditionally, civil claims were only brought by the directly injured victim, this principle has been challenged. Laws concerning racism and xenophobia have granted certain associations the right to act as civil parties, expanding the scope of who can bring such claims. ### 3.4.3 The civilly liable party This refers to individuals or entities who are civilly liable for damages caused, not necessarily the perpetrator of the crime. This often includes parents of minor children who are generally not criminally liable. ### 3.4.4 The intervening party (voluntary or forced) Third parties generally cannot intervene in criminal cases unless the law explicitly allows for a sanction or measure to be imposed upon them, such as the forfeiture of their property or subrogation rights for insurers. ### 3.4.5 The police Following parliamentary inquiries, reforms have led to an integrated police service structured at both local and federal levels. #### 3.4.5.1 Police tasks * **Administrative police duties:** Primarily preventive, focusing on maintaining public order and preventing crime. * **Judicial police duties:** Repressive and reactive, aimed at investigating and establishing criminal offenses and gathering evidence. This includes making official reports to the Public Prosecutor's Office and acting under the authority of the Public Prosecutor or investigating judge. * **Officers of judicial police:** Individuals empowered to draft official reports, make arrests, and conduct specific investigative actions. * **Auxiliary officers of the Public Prosecutor:** Perform tasks similar to those of the Public Prosecutor in cases of flagrant offenses. The distinction between administrative and judicial police duties can sometimes blur, as police officers may transition from preventive surveillance to sanctioning an offense they witness. #### 3.4.5.2 Status of the police The text indicates that the details of the police's status, local and federal police structure, specialized investigative services, internal and external oversight, international police services, and state security are covered but not detailed as examination material. ### 3.4.6 The Public Prosecutor's Office (Openbaar Ministerie - OM) The Public Prosecutor's Office, also known as the Public Prosecutor's magistrates or the standing magistracy, plays a crucial role in initiating and pursuing criminal cases. #### 3.4.6.1 Situation Recommendations from parliamentary commissions for reforms have been made, though not all have been fully implemented. #### 3.4.6.2 Tasks of the Public Prosecutor's Office * **Leading investigations:** While the investigating judge leads judicial investigations, the Public Prosecutor's Office retains the right to request specific investigative actions. * **Exercising the criminal prosecution:** This involves bringing a case before a judge to apply criminal law. The Public Prosecutor's Office has a monopoly on this function. * **Extra-judicial settlements:** The OM can resolve less serious cases without court involvement, leading to the extinction of the criminal prosecution. * **Evidence presentation in criminal courts:** The burden of proof lies with the OM, adhering to the principle of "in dubio pro reo" (doubt benefits the accused). The standard of proof is "beyond all reasonable doubt." * **Enforcement of sentences:** The OM plays a significant role in initiating the enforcement of penalties and addressing non-compliance. #### 3.4.6.3 Status of the Public Prosecutor's Office Members of the OM are removable and transferable and belong to a hierarchical corps. They must follow written instructions from their superiors but are free to act according to their conscience during court proceedings. The principle of "the pen is the slave, the word is free" highlights this distinction. The OM is also considered one and indivisible. #### 3.4.6.4 Overview of Public Prosecutor's Offices * **Prosecutor-General at the Court of Appeal:** Heads the prosecution service within a judicial district, managing policy and overseeing cases at the appellate level. * **King's Prosecutor (Procureur des Konings):** Operates at the arrondissement level, with general competence for all types of offenses, though exceptions exist for labor law matters. * **Prosecutor's Office for Road Safety:** Established to oversee specific procedures related to road traffic offenses. * **Federal Prosecutor:** Deals with serious and organized crime across the entire territory, including terrorism and crimes affecting the EU's financial interests. #### 3.4.6.5 Oversight of the Public Prosecutor's Office Internal oversight is conducted by the Prosecutor-General, while external oversight is provided by the High Council of Justice, which handles complaints and advises on appointments. #### 3.4.6.6 The European Public Prosecutor's Office (EPPO) The EPPO is responsible for investigating and prosecuting crimes that harm the EU's financial interests, operating in participating member states. ### 3.4.7 The investigating judge The investigating judge plays a dual role as both a judge and an investigative magistrate during the preliminary investigation phase, specifically in judicial investigations. #### 3.4.7.1 Situation The role of the investigating judge has been subject to debate, with proposals to transition to a "judge of instruction" who would have a purely judicial function, authorizing coercive measures only upon request from the OM. This change is partly driven by concerns about the protection of defense rights and the concentration of power. The investigating judge's role has already been somewhat diminished by measures like the "mini-instruction." #### 3.4.7.2 Tasks of the investigating judge * **Conducting investigations:** Gathering evidence both for and against the suspect. * **Authorizing coercive measures:** Such as house searches and arrest warrants. * **Executing judicial decisions:** Related to European arrest warrants and confiscation orders. #### 3.4.7.3 Status of the investigating judge Investigating judges are specialized and their jurisdiction can extend to the entire territory. #### 3.4.7.4 Oversight of the investigating judge Internal oversight is provided by the Chamber of Indictment, which can request reports, review long-term investigations, and even take over investigations (evocation). External oversight comes from the High Council of Justice. ### 3.4.8 The investigative courts These courts act as an interface between the preliminary investigation and the trial phase. #### 3.4.8.1 Situation The two main investigative courts are the Chamber of Instruction (Raadkamer) and the Chamber of Indictment (Kamer van Inbeschuldigingstelling). They are responsible for controlling the sufficiency of evidence and the regularity of the proceedings. Their decisions are generally in the form of orders, not judgments. #### 3.4.8.2 The Chamber of Instruction (Raadkamer) Operating at the level of the court of first instance, the Chamber of Instruction primarily: * **Reviews detention measures:** Including control over provisional detention and forensic psychiatric evaluations. * **Manages the closing of judicial investigations:** Deciding whether there are sufficient grounds to proceed to trial and rectifying procedural irregularities. * **Can issue a suspended judgment:** Where guilt is established, but the sentence is suspended. #### 3.4.8.3 The Chamber of Indictment (Kamer van Inbeschuldigingstelling) This court, operating at the level of the court of appeal, has several key functions: * **Indictment for trials at the Court of Assizes:** It is the sole body that can refer a case to the Court of Assizes. * **Appeals against decisions of the Chamber of Instruction:** Reviewing decisions related to detention or the closing of investigations. * **Oversight of the investigating judge:** Reviewing long-term investigations and having the power to take over cases. * **Control over the regularity of proceedings:** Identifying and potentially rectifying procedural nullities, though its scope in this regard has been debated. * **Review of confidential dossiers:** In cases involving special investigative methods like surveillance and infiltration. * **Specific powers:** Including ordering remissions of sentence and providing opinions on extradition requests. ### 3.4.9 The trial courts (vonnisgerechten) These courts are responsible for delivering judgments on the merits of the case, determining guilt and imposing sentences. #### 3.4.9.1 Task of the trial courts Their primary task is to decide whether the alleged facts are proven and, if so, to impose a punishment. This function is constitutionally guaranteed, including the principles of open trial and reasoned judgments. Judges have a passive role, acting only on matters presented by the Public Prosecutor's Office. #### 3.4.9.2 Status of judges Judges are appointed for life, ensuring their independence. Their access to the competent "natural judge" is a fundamental right. They are assisted by referendaries. #### 3.4.9.3 Oversight of judges The High Council of Justice oversees judicial appointments and evaluations, while the Advisory Council for the Magistracy monitors their statutes and working conditions. #### 3.4.9.4 Classification of trial courts * **Ordinary trial courts:** Their jurisdiction is based on the nature of the offense (felony, misdemeanor, petty offense). * **Courts of First Instance:** Police courts, correctional courts, and the Court of Assizes. * **Courts of Appeal:** Review decisions from lower courts. * **Court of Cassation:** Reviews legal issues, not the facts of the case. * **Special trial courts:** Their jurisdiction is based on the status of the accused, such as youth courts or chambers for handing over minors. #### 3.4.9.5 Composition and jurisdiction of trial courts * **Court of Cassation:** Reviews legal interpretations of the law. * **Court of Appeal:** Hears appeals and has original jurisdiction in certain high-profile cases (e.g., involving ministers or high officials). * **Court of Assizes:** Composed of professional judges and a jury, it hears serious criminal offenses. * **Correctional Court:** Deals with misdemeanors and hears appeals from police courts. * **Police Court:** Handles petty offenses and traffic violations. * **Youth Court:** Deals with offenses committed by minors, with a focus on educational measures rather than punishment. * **Chamber for handing over:** Decides whether minors aged 16-18 should be tried as adults for serious offenses. ### 3.4.10 Sentence enforcement courts These courts oversee the execution of sentences. #### 3.4.10.1 Composition They are composed of a president, two lay assessors specializing in penitentiary affairs and social reintegration, and assisted by specialized public prosecutors. #### 3.4.10.2 Powers These courts handle the granting, monitoring, revocation, and suspension of various sentence modalities, including limited detention, electronic monitoring, and conditional release. ### 3.4.11 Justice assistants and justice houses These entities provide social support and supervision in the criminal justice process. #### 3.4.11.1 Functions They offer assistance, advice, and supervision for the execution of sanctions and measures, including victim support, monitoring of conditionally released individuals, and managing alternative sanctions. They are housed in Justice Houses, with communities responsible for their management and the federal government for defining their tasks. ### 3.4.12 Disciplinary courts These courts handle disciplinary proceedings against magistrates for failing to perform their duties or for conduct unbecoming of their office. --- # Defenses and appeals in criminal proceedings This section details the fundamental rights of the defense in criminal proceedings, encompassing the right to a fair trial, specific procedural guarantees, and the appeal process. ## 4. Defenses and appeals in criminal proceedings The defense in criminal proceedings is built upon a foundation of fundamental rights designed to ensure a fair trial and protect individual liberties against state power. These rights are not static but have evolved through legislative reforms and judicial interpretation, reflecting a societal balance between effective crime investigation and the protection of individual freedoms. ### 4.1 General principles of criminal procedure The application of substantive criminal law is governed by procedural rules. These rules, collectively known as criminal procedure law or criminal proceedings, dictate how the state enforces criminal law. They define the rights and obligations of all parties involved, including the authorities (police, public prosecutor, judges) and the accused. #### 4.1.1 Sources of criminal procedure law The primary sources of criminal procedure law include: * **The Constitution (Grondwet):** It enshrines fundamental rights such as the public nature of court hearings and judgments, provisions related to the judiciary, and specific protections for individuals. * **The Code of Criminal Procedure (Wetboek van Strafvordering - Sv.):** This is the main legislative act governing criminal proceedings in Belgium, originating from Napoleonic law and subject to numerous amendments. * **The Preliminary Title of the Code of Criminal Procedure (Voorafgaande titel bij het Wetboek van Strafvordering - VTSv.):** Positioned at the beginning of the Code, it contains foundational provisions. Significant legislative reforms, such as the "Kleine Franchimont" of 1998, have aimed to enhance the rights of parties within judicial investigations, while ongoing discussions and reform proposals continue to address the role of investigative judges and the efficiency of the criminal justice system. The introduction of a new Criminal Code also necessitates concordance adjustments in the Code of Criminal Procedure. #### 4.1.2 Distinction between substantive and procedural criminal law * **Substantive criminal law** defines criminal offenses and their corresponding punishments, applying to all citizens. * **Procedural criminal law** outlines the rules for investigation, prosecution, and adjudication, primarily directing the actions of state authorities but also indirectly impacting citizens who are victims or accused. Violations of procedural norms can lead to sanctions such as the inadmissibility of evidence or even the nullity of proceedings. #### 4.1.3 Objectives of criminal proceedings The criminal justice system pursues a dual objective: * **Truth-finding (waarheidsvinding):** The investigation and establishment of facts to determine guilt. * **Protection of individual fundamental rights:** Safeguarding the rights of the accused and other involved parties during the investigative and judicial processes. These objectives are often in tension, leading to a dynamic balancing act. Historically, emphasis was placed on truth-finding. However, the influence of the European Convention on Human Rights (ECHR) and constitutional provisions has significantly strengthened the focus on protecting individual rights. This balance is constantly recalibrated through legislation and jurisprudence, with mechanisms like the "Antigoon" jurisprudence allowing for the potential admission of unlawfully obtained evidence under certain circumstances to prevent an acquittal when substantial guilt is evident. #### 4.1.4 Accusatorial versus inquisitorial proceedings The criminal justice system can be broadly categorized into accusatorial and inquisitorial models. Belgium's system exhibits a hybrid character: * **Pre-trial investigation (vooronderzoek):** This phase is largely inquisitorial, characterized by secrecy and a more active role for the investigating magistrate or prosecutor. * **Trial phase (onderzoek ten gronde/fase ter terechtzitting):** This phase is more accusatorial, emphasizing public hearings and adversarial debate. European criminal procedure reforms, influenced by the ECHR, are increasingly leaning towards more accusatorial elements. ### 4.2 The process of criminal proceedings The criminal process generally unfolds in two main stages: the pre-trial investigation and the trial. #### 4.2.1 Pre-trial investigation The pre-trial investigation aims to identify suspects and gather sufficient evidence for potential prosecution. If insufficient evidence is found, the investigation may be closed without a judgment on the merits. ##### 4.2.1.1 Investigative versus judicial investigation * **Investigative investigation (opsporingsonderzoek):** Typically conducted by the Public Prosecutor's Office (OM) and police, it is the most common pathway. Intervention by an investigative judge is usually limited to authorizing certain coercive measures. * **Judicial investigation (gerechtelijk onderzoek):** Initiated by an investigative judge, this occurs when more serious coercive measures are required, or upon a victim's complaint with civil party claim, or through the investigative judge's own initiative ("autosaisine"). ##### 4.2.1.2 Characteristics of the pre-trial investigation * **Secrecy (geheim):** To prevent obstruction of the investigation and protect the suspect's reputation pending proven guilt, pre-trial proceedings are generally confidential. Limited access is granted to parties, particularly in cases of detention. * **Non-adversarial nature (niet-tegensprekelijk):** Historically, the suspect had limited rights to contest evidence or present counter-arguments during this phase. Recent reforms have introduced greater participatory rights, including the right to request additional investigative measures with avenues for appeal. * **Written form (schriftelijk):** Records of all investigative actions are documented in written reports (process-verbalen), forming the basis of the case file. #### 4.2.2 Trial (onderzoek ten gronde) This stage involves the courts rendering a judgment on the merits of the case and imposing a sentence if guilt is established. * **Publicity of hearings and judgments (openbaarheid):** As mandated by the Constitution, court proceedings and pronouncements are generally public, serving as a democratic check on the justice system. Exceptions exist for closed sessions when public order or morals are at risk. * **Adversarial character (tegensprekelijk):** The trial phase is characterized by a debate between the prosecution and the defense, with the accused having the right to present their case. * **Orality (mondeling):** Proceedings are primarily oral, though written submissions are permitted. Judges are obligated to respond to all arguments presented. ### 4.3 Actors in the criminal proceedings Various individuals and bodies play distinct roles within the criminal justice system. #### 4.3.1 The suspect (verdachte) The suspect is the person suspected of committing a criminal offense. Their status evolves throughout the proceedings, from "verdachte" in the investigative phase to "beklaagde" or "beschuldigde" before the trial courts, and finally "veroordeelde" if found guilty and the judgment is final. Key rights include the presumption of innocence and the right to legal representation. #### 4.3.2 The victim (slachtoffer) The role of the victim has gained increasing prominence. Victims can participate as civil parties to seek damages, and recent legislation has expanded their rights, including the right to be heard and to receive information about the proceedings and the offender's release. #### 4.3.3 The Public Prosecutor's Office (openbaar ministerie - OM) The OM, also known as the Public Prosecutor's Office or "Parket," is responsible for initiating and conducting prosecutions. It holds a monopoly on exercising the criminal prosecution. The OM also plays a role in out-of-court settlements and the execution of sentences. ##### 4.3.3.1 Tasks of the Public Prosecutor's Office * **Leading investigations:** Directing investigative and, to some extent, judicial investigations. * **Exercising criminal prosecution:** Bringing cases before the courts. * **Out-of-court settlements:** Offering alternatives to trial for less serious offenses. * **Evidence presentation:** Presenting evidence to the courts, bearing the burden of proof ("in dubio pro reo" – doubt favors the accused). * **Sentence enforcement:** Initiating the execution of judicial decisions. ##### 4.3.3.2 Statut of the Public Prosecutor's Office Members of the OM are subject to hierarchy and ministerial direction, though they retain discretion in their oral pleadings. They are also bound by the principle of indivisibility. #### 4.3.4 The investigative judge (onderzoeksrechter) The investigative judge presides over judicial investigations, ensuring that coercive measures are lawful and proportionate. Their role has been subject to reform, with a debate ongoing about transitioning to a "judge of investigation" model where the prosecutor would lead investigations, and the judge would primarily authorize coercive measures. #### 4.3.5 Judicial investigation bodies (onderzoeksgerechten) These bodies act as interfaces between the investigation and trial phases. * **The Chamber of Council (Raadkamer):** Reviews detention measures, oversees the closure of judicial investigations, and can impose certain sanctions or measures, including conditional suspension of convictions. * **The Indictment Division (Kamer van Inbeschuldigingstelling - KI):** Hears appeals against decisions of the Chamber of Council and investigative judges, supervises lengthy investigations, and decides on indictments for the Court of Assizes. #### 4.3.6 Trial courts (vonnisgerechten) These courts deliver judgments on the merits of criminal cases. They include various levels, from police courts for minor offenses to the Court of Assizes for the most serious crimes. The Court of Cassation reviews only legal issues, not factual ones. #### 4.3.7 Probation and enforcement courts (strafuitvoeringsrechtbanken) These courts manage the execution of sentences, including decisions on limited detention, electronic monitoring, and conditional release. ### 4.4 Rights of the defense The rights of the defense are a cornerstone of a fair trial, ensuring that the accused can effectively challenge the prosecution's case. #### 4.4.1 Right to access to justice This includes the right to access a competent, independent, and impartial judge. * **Independence:** Judges must be free from external pressure. * **Impartiality:** Judges must not have a subjective bias or an objective appearance of bias. #### 4.4.2 Right to a fair trial This encompasses several key components: * **Equality of arms (wapengelijkheid):** The prosecution and defense must have reasonably equivalent opportunities to present their case. * **Public trial:** Hearings and judgments are generally public. * **Reasonable time:** The trial must be conducted within a reasonable timeframe. * **Right not to incriminate oneself ( nemo tenetur se ipsum accusare):** An individual cannot be compelled to testify against themselves. This includes the right to remain silent and the non-admissibility of negative inferences drawn from silence. * **Presumption of innocence:** Individuals are presumed innocent until proven guilty beyond a reasonable doubt. This principle governs the burden of proof and the judgment on the merits. * **Right to defense:** This is a broad right encompassing: * **Right to information:** Being informed of the accusations. * **Right to time and facilities:** Sufficient time and resources to prepare a defense. * **Right to legal assistance:** The right to defend oneself or be represented by legal counsel, including free legal aid for those who cannot afford it. * **Right to examine witnesses:** The ability to question witnesses presented by the prosecution and to present one's own witnesses. * **Right to a translator:** Free assistance of an interpreter when needed. * **Right to appeal:** The ability to seek review of a judgment by a higher court. * **Right to an effective remedy:** The ability to seek redress for violations of rights. * **Ne bis in idem:** Protection against being tried or punished twice for the same offense. #### 4.4.3 Legal guarantees during limitations of fundamental rights When fundamental rights like personal liberty or privacy are restricted (e.g., through searches, surveillance, or detention), legal safeguards are in place to ensure these limitations are lawful, legitimate, and proportionate. ### 4.5 Appeals The right to appeal allows for the review of a lower court's decision by a higher court, ensuring that errors can be corrected and that justice is properly administered. * **General appeals:** Most judgments can be appealed on both factual and legal grounds. * **Appeals to the Court of Cassation:** This highest court reviews only questions of law, not facts. * **Special procedures:** Certain categories of individuals, such as ministers or high-ranking officials, may have specific procedural rules for appeals due to their "privilege of jurisdiction." ### 4.6 Consequences of unlawful evidence The "Antigoon" ruling by the Court of Cassation introduced a balancing test for unlawfully obtained evidence. If the violation of procedural rules is minor and does not fundamentally compromise the fairness of the proceedings, and if excluding the evidence would lead to an unjustified acquittal, the evidence may still be admitted. This aims to prevent the criminal justice system from being undermined by technicalities. ### 4.7 Out-of-court settlements The Public Prosecutor's Office can offer out-of-court settlements for less serious offenses, such as amicable settlements (minnelijke schikking) or conditional execution of measures (bemiddeling en maatregelen). These agreements, if accepted and executed by the accused, lead to the extinguishment of the criminal prosecution. They are subject to judicial oversight for legality and proportionality and aim to reduce the caseload of the courts and provide a more humane resolution. ### 4.8 Prescriptive periods for criminal prosecution (verjaring) The right to prosecute a criminal offense is time-limited. The period during which prosecution can be initiated varies depending on the severity of the crime. Recent reforms have extended these periods. The running of the prescriptive period can be interrupted or suspended under specific legal circumstances. ### 4.9 Immunities and privileges Certain individuals, such as heads of state or members of parliament, may enjoy immunities or privileges that affect the ability to prosecute them. These are derived from national and international law and can limit the scope or procedure for prosecution. ### 4.10 extraterritoriality of criminal prosecution Belgian criminal law can apply to offenses committed abroad under specific conditions, such as when a Belgian national is the offender (active personality principle) or victim (passive personality principle), or when Belgian interests are affected. ### 4.11 Prejudicial questions and disputes If a criminal case involves a legal question belonging to another legal discipline (e.g., European Union law or constitutional law), the criminal court may refer the question to the relevant authority or, in certain cases, decide it itself. --- # Criminal actions and civil actions arising from offenses This section outlines the distinct but interconnected realms of criminal and civil actions that can arise from an offense, detailing their principles, execution, and procedural aspects. ## 5. Criminal actions and civil actions arising from offenses ### 5.1 The criminal action (strafvordering) The criminal action, in its narrowest sense, refers to the legal proceeding initiated to apply criminal law and impose punishment on a suspected perpetrator. This is primarily the responsibility of the Public Prosecution Service (Openbaar Ministerie - OM). #### 5.1.1 General principles * **Broad vs. Narrow Meaning:** In a broad sense, "strafvordering" encompasses the entire criminal procedure. In a narrow sense, it specifically refers to the act of instituting criminal proceedings. The focus here is on the latter, the action to apply criminal law. * **Distinction from Civil and Disciplinary Actions:** A single offense can give rise to a criminal action (to punish the perpetrator), a civil action (for compensation of damages by the victim), and potentially a disciplinary action (if the perpetrator is subject to professional regulations). * **Primacy of Criminal Action:** The criminal action generally takes precedence over the civil action. A criminal court will first decide on the criminal charges before addressing any civil claims. #### 5.1.2 Persons who exercise the criminal action The exclusive right to exercise the criminal action lies with specific officials within the Public Prosecution Service (OM). * **Monopoly of the OM:** The OM holds a monopoly on initiating and pursuing criminal actions. This means that only designated prosecutors can bring a case before a criminal court or initiate further investigative steps. * **Officials Authorized to Exercise Criminal Action:** * The Prosecutor-General at the Court of Appeal (Procureur-generaal bij het Hof van Beroep) for cases at the appellate level. * The King's Prosecutor (Procureur des Konings) at the arrondissement level, with general competence over all offenses, except for specific social offenses handled by the labor auditor. * The Federal Prosecutor (Federaal Procureur) for specific serious offenses such as terrorism, operating nationwide and with a primary, though sometimes concurrent, jurisdiction. * **Subsidiarity of Federal Prosecutor:** In cases of overlapping jurisdiction, the Federal Prosecutor decides which prosecution service will lead the investigation. This decision is final and cannot be appealed. #### 5.1.3 How the criminal action is exercised The criminal action can be initiated and pursued through various procedures, depending on the stage of the proceedings and the nature of the offense. * **Policy on Prosecution (Opportuniteitsbeginsel):** Belgium operates under an "opportuniteitsbeginsel," meaning the OM has discretion in deciding whether to prosecute or dismiss a case (sepot). This contrasts with a "legaliteitsbeginsel" where all offenses must be prosecuted. * **Decision to Prosecute (Vervolging):** This involves formally bringing the case before the courts. * **Request for Investigation (Vordering tot onderzoek):** Initiates a judicial investigation by requesting an investigating judge to conduct further inquiries, potentially involving coercive measures. This is distinct from commencing the criminal action itself. * **Direct Summons or Summons by Report (Rechtstreekse dagvaarding of oproeping per proces-verbaal):** This directly brings the case before a trial court, typically for misdemeanors and offenses, and can be done by the King's Prosecutor or, under certain conditions, by the victim. * **Immediate Appearance Order (Bevel tot onmiddellijke verschijning):** A fast-track procedure for simple, clear-cut cases where the offender is known and arrested, allowing for swift judgment. * **Non-Prosecution (Sepot):** The OM decides not to pursue a case. * **Technical Sepot:** Occurs when prosecution is legally impossible (e.g., offender's death, statute of limitations, unidentified offender). * **Policy Sepot:** Occurs when prosecution is technically possible but deemed not opportune (e.g., minor offenses, de-criminalization policies). * **Consequences:** A sepot does not extinguish the criminal action itself, but it ends the immediate pursuit. The victim may still pursue a civil claim or, in certain cases, initiate proceedings themselves. * **Extra-Judicial Settlement (Buitengerechtelijke afhandeling):** The OM can resolve certain cases outside of formal court proceedings. * **Amicable Settlement (Minnelijke schikking):** The offender agrees to pay a sum of money or forfeit certain assets. This leads to the extinguishment of the criminal action. * **Mediation and Measures (Bemiddeling en maatregelen):** The offender agrees to comply with certain conditions or participate in a mediation program. Successful completion leads to the extinguishment of the criminal action. * **Immediate Administrative Settlement (OMS):** A streamlined process, often used for minor offenses like drug possession for personal use or shoplifting, where police can propose an immediate settlement involving payment. * **Order to Pay (Bevel tot betalen):** If an amicable settlement is not paid, an order to pay can be issued, which is more expensive than the original proposed sum. Non-payment can lead to enforcement. * **Pre-trial Diversion and Alternative Measures:** The system increasingly utilizes alternatives to formal prosecution and punishment, aiming for efficiency and tailored solutions. * **Prior Recognition of Guilt (Voorafgaande erkenning van schuld):** Introduced to expedite cases where guilt is clear, the accused can admit guilt in exchange for a potentially milder sentence, which is then homologated by the trial court. * **Administrative Settlement:** In some cases, particularly concerning public order offenses, municipalities can impose administrative sanctions, such as fines or temporary closures, when formal criminal prosecution is not pursued. #### 5.1.4 Limitations on the exercise of the criminal action Several factors can prevent or limit the initiation or continuation of criminal proceedings. * **Exceptions to Prosecution:** * **Authorization (Machtiging):** For certain offenses or individuals, prosecution requires specific authorization (e.g., fiscal offenses require authorization from a senior fiscal official; prosecution of parliamentarians often requires parliamentary consent). * **Complaint (Klacht):** Some offenses are "klachtmisdrijven," meaning prosecution can only be initiated upon a formal complaint by the victim. This category is being reduced. * **Extraterritorial Jurisdiction:** While generally jurisdiction is based on where the offense occurred, Belgium can exercise criminal jurisdiction for offenses committed abroad under certain conditions, often requiring the offender's presence in Belgium or a formal request from the foreign state. * **Prejudicial Questions and Disputes:** If a criminal case hinges on a question of law outside criminal law (e.g., European Union law, constitutional law, civil status), the criminal proceedings may be suspended pending a decision from the relevant court. * **Extinguishment of the Criminal Action (Verval van strafvordering):** The criminal action can cease to be actionable due to various reasons: * **Repeal or Amendment of Criminal Law:** If the law under which an offense was committed is repealed or amended to be less severe, the criminal action may lapse. * **Amnesty:** A legislative act that effectively cancels the criminal character of an offense. * **Withdrawal of Complaint:** For complaint-based offenses, if the victim withdraws their complaint before the action is initiated. * **Death of the Offender:** The criminal action is personal and extinguishes upon the death of the natural person. For legal persons, it may subsist. * **Statute of Limitations (Verjaring):** Criminal actions are subject to time limits. The period varies depending on the gravity of the offense. Recent changes have significantly extended these periods and altered the rules regarding their suspension and interruption. Certain serious crimes, like genocide and certain sexual offenses against minors, are now effectively imprescriptible. * **Judicial Precedent (Rechterlijk gewijsde):** A final and binding judgment on the same matter involving the same parties can prevent further prosecution (ne bis in idem principle). * **Extra-Judicial Settlement:** Successful completion of amicable settlements, mediation, or payment orders leads to the extinguishment of the criminal action. ### 5.2 Civil actions arising from offenses A civil action is a legal claim brought by an injured party to seek compensation for damages suffered as a direct result of a criminal offense. #### 5.2.1 Persons who can bring civil actions * **Directly Harmed Parties:** The primary individuals who can bring a civil action are those who have directly suffered material or moral damage due to the offense (e.g., the victim of an assault, the owner of damaged property). * **Legal Successors:** Heirs or legal successors of the directly harmed party can also pursue the civil action. * **Associations and Public Utility Institutions:** In specific cases, and for certain types of offenses (e.g., discrimination, environmental damage), authorized associations may bring a civil action to protect collective interests. * **Civilly Liable Parties:** While not initiating the action, persons who are civilly liable for the offender's actions (e.g., parents for their minor children, employers for their employees' acts within the scope of employment) can be the target of a civil action. #### 5.2.2 Against whom civil actions are brought * **The Offender (Suspect/Accused/Convicted Person):** The primary defendant in a civil action is the person who committed the offense. * **Civilly Liable Third Parties:** Individuals or entities who are legally responsible for the damages caused by the offender. * **Legal Successors of the Offender:** If the offender dies, their heirs may be held liable for the damages up to the value of the inherited estate. #### 5.2.3 Procedure for exercising civil actions The civil action can be pursued in parallel with or independently of the criminal action. * **Choice of Forum:** A victim has a choice: * **Civil Courts:** The civil action can be filed directly with the civil courts, independently of any criminal proceedings. * **Criminal Courts:** The victim can join the criminal proceedings as a "civil party" (burgerlijke partij) before the criminal court. This allows for a more efficient resolution of both criminal and civil aspects of the case. * **Joining Criminal Proceedings (Burgerlijke Partijstelling):** * **During the Pre-Trial Phase:** A victim can file a complaint with a civil party claim before an investigating judge, forcing the initiation of a judicial investigation if the Public Prosecution Service had initially intended to dismiss the case. * **During the Trial Phase:** A victim can intervene as a civil party when the case is before the trial court. * **Ambit of the Civil Action:** The civil action aims solely at obtaining compensation for damages suffered by the victim. It cannot be used to impose criminal punishment. This includes compensation for material losses, as well as moral or symbolic damages. * **Extinguishment of the Civil Action:** Similar to the criminal action, the civil action can also be extinguished due to: * **Waiver of Action or Settlement:** The victim may voluntarily give up their right to sue or reach a settlement with the offender. * **Statute of Limitations:** Civil claims are also subject to prescription periods, which can be interrupted or suspended under specific circumstances. * **Judicial Precedent:** A prior civil judgment on the same matter can preclude further civil claims. * **Effect of Criminal Judgment on Civil Action:** A criminal conviction can have significant weight in subsequent civil proceedings, establishing the facts of the offense and the offender's guilt. * **Assistance to Victims of Intentional Violence:** Special funds and procedures exist to provide support and compensation to victims of serious intentional violent crimes. > **Tip:** Understanding the procedural differences and strategic advantages of pursuing a civil claim within the criminal proceedings versus separately in civil court is crucial for victims. > **Example:** A victim of a hit-and-run accident can choose to file a criminal complaint with a civil party claim, allowing the criminal investigation to uncover the driver's identity and the criminal court to determine fault. Simultaneously, they can pursue compensation for medical expenses and pain and suffering through the same proceedings. Alternatively, they could file a separate civil lawsuit after the driver has been identified, but this might be more time-consuming and costly. --- ## Common mistakes to avoid - Review all topics thoroughly before exams - Pay attention to formulas and key definitions - Practice with examples provided in each section - Don't memorize without understanding the underlying concepts

| Term | Definition | |------|------------| | Formal criminal procedure | The body of procedural rules according to which substantive criminal law is applied, governing the actions of authorities like judges, prosecutors, and police. | | Substantive criminal law | The body of legal rules that define certain behaviors as criminal offenses and prescribe sanctions for them, encompassing both crimes and punishments. | | Criminal justice chain | The sequence of actions in the criminal justice system, typically involving the investigation of offenses, prosecution, adjudication, and punishment execution. | | Pre-trial investigation | The initial phase of criminal proceedings focused on identifying suspects and gathering evidence to determine if there are sufficient grounds for prosecution. | | Trial (Investigation on the merits) | The phase of criminal proceedings where a court hears evidence and makes a determination on the guilt of the accused and the appropriate sentence. | | Adversarial procedure | A legal process in which two opposing sides, typically the prosecution and the defense, present their cases before a neutral decision-maker. | | Inquisitorial procedure | A legal process in which a judge or magistrate actively investigates the facts of a case, rather than relying solely on the arguments presented by opposing parties. | | Principle of opportunity | The discretionary power of the public prosecutor to decide whether or not to initiate criminal proceedings, even when there is sufficient evidence of a crime. | | Principle of legality | The legal principle that all criminal offenses and their corresponding penalties must be clearly defined by law. In some jurisdictions, this principle mandates prosecution of all detected crimes. | | Judicial investigation | A phase of the pre-trial investigation conducted by an investigating judge, often involving coercive measures and more extensive fact-finding. | | Investigative investigation | The initial stage of the pre-trial investigation, typically led by the public prosecutor, focusing on identifying suspects and gathering preliminary evidence. | | Rule of law | A principle that dictates that all individuals and institutions are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated. | | Presumption of innocence | The legal principle that a person is considered innocent until proven guilty beyond a reasonable doubt in a court of law. | | Right to a fair trial | A fundamental legal right that ensures all individuals accused of a crime receive a just and impartial legal process, including access to legal representation and evidence. | | Equality of arms | A principle of procedural fairness that requires that each party in a legal proceeding have reasonable opportunity to present their case under conditions that do not place them at a substantial disadvantage compared to their opponent. | | Investigation judge | A judicial officer responsible for conducting judicial investigations, authorizing coercive measures, and ensuring the legality and fairness of the pre-trial process. | | Public prosecutor | A legal official responsible for bringing criminal charges against individuals accused of crimes and for representing the state in criminal proceedings. | | Court of First Instance | The initial court where a legal case is heard, handling a wide range of civil and criminal matters. | | Court of Appeal | A higher court that reviews decisions made by lower courts, typically examining errors of law or procedure. | | Court of Cassation | The highest court in a judicial system, which reviews decisions of lower courts for legal errors, but does not re-examine the facts of the case. | | Court of Assizes | A special court that hears serious criminal cases, often involving a jury of laypeople. | | Plea bargaining | A negotiated agreement in a criminal case between the prosecutor and the defendant whereby the defendant agrees to plead guilty to a particular charge in return for more lenient treatment. | | Out-of-court settlement | A resolution of a legal dispute without resorting to litigation, often involving a compromise between the parties. | | Statute of limitations | A law that sets the maximum time after an event within which legal proceedings may be initiated. | | Civil action | A legal proceeding brought by one private individual or entity against another, typically seeking compensation for damages or enforcement of a right. | | Criminal action | A legal proceeding initiated by the state to prosecute an individual accused of committing a crime. | | Res judicata | A legal doctrine that prevents the same matter from being litigated more than once. | | Admissibility of evidence | The rules that determine whether evidence can be presented in court during a trial. | | Voidance (nullity) | The state of being legally invalid or void, often applied to legal acts or proceedings that do not comply with mandatory legal requirements. | | Right to defense | The right of an accused person to be represented by legal counsel and to have adequate time and facilities to prepare their defense. | | Presumption of guilt | The opposite of the presumption of innocence; it implies that an individual is considered guilty until proven innocent, which is contrary to modern legal principles. | | Due process | The legal requirement that the state must respect all legal rights that are owed to a person. It guarantees fair treatment through the normal judicial system. | | Reasonable doubt | The standard of proof required in criminal cases; if there is any doubt about the defendant's guilt that is based on reason and common sense after careful consideration of all evidence, the jury must acquit. | | Precedents | Previous court decisions that serve as a guide for future cases involving similar legal issues. | | Principle of proportionality | The principle that the severity of a punishment should be proportionate to the seriousness of the crime committed. |