Penal Law

(Mélina Thomas, Corday - who killed Marat in his bath - during her interrogation)

Interrogation by the police - Search - Observation - Decrypt mobile phone :

1.It already starts with assistance to witnesses / suspects before and during the first interrogation by the police or the investigating judge as it has arisen in our criminal proceedings after the 2008 Salduz judgment of the European Court of Human Rights. The request for the assistance of a lawyer can be made from the moment the offense for which you are being prosecuted could lead to any imprisonment.

If you have been deprived of your liberty, whereby the interrogation must take place within 2 hours after the arrestation, you can consult with the lawyer you want before the interrogation. The consultation can also take place by telephone for 30 minutes. Can limit itself to this (in case of arrestation) if the interrogation can be audio-visually recorded (Article 2bis, §3 pre-trial detention).

2. This judgment and subsequent judgments of the European Court led to the creation of Article 47bis, §6.6 Criminal Procedure Code and the role of the lawyer to supervise the correct progress of the interrogation and the acting of alleged violations of the prohibition of pressure, the right to remain silent or the regularity of the interrogation. (advice during interrogation is still not allowed and there is only 1 time the possibility for additional consultation). The same article 47bis, §6.9 provides that statements made in contravention of the Salduz rules cannot be used as evidence for the prosecution. The explanatory memorandum of the law states that the lawyers can also provide evidence for discharge[1] and authors are of the opinion that they should be able to intervene actively during interrogation.

Since the Ibrahim judgment of 13.9.2016[2], the absence of the lawyer during the interrogation does not automatically lead to the exclusion of the statement as evidence (a series of criteria is applied for this)[3]. As soon as there are compelling reasons in a specific case and the right to a fair trial is not jeopardized.

In the Beuze judgment of 9.11.2018[4], the suspect did not have the assistance of a lawyer, made contradictory statements and admitted to being at the scene of the crime, even then the court did not judge a violation of the right to a fair trial (Article 6 ECHR).

The Belgian Court of Cassation 31.10.2017[5] also ruled that the circumstances in the absence of a lawyer in incriminating statements must be specifically checked (e.g. he / she was explicitly informed of the right to remain silent, also afterwards was not stated to have been pressured, et cetera).

3. Although there are thus a kind of stricter rules, it remains the settled case law of the European Court of Human Rights that only when the criminal procedure is mainly based on an incriminating statement (made without the assistance of a lawyer) or that this statement is the basis of the criminal investigation, that the statement must then be annulled, or the criminal action must be dismissed as inadmissible.[6]

Given the strengthening tendency, it will be a matter for the lawyer concerned to quickly raise all possible anomalies, especially with regard to clients who are in a weak position, and who may sometimes be easily inclined to blame themselves for being released from the pressure they must undergo.

4. Not only for those who are suspected of being interrogated, but also by each person who is being interrogated, the police will inform you in advance and in a concise manner about the facts about which you are being interrogated.

You can also request that both the questions and the answers be written in the wording used.

They can use the documents they possess (but must have them with them), and can request that they be included in the investigation (best take a copy of your documents).

A lawyer can now also be involved in a confrontation (interrogation of 2 or more persons whose statement is mutually confronted).

If the police refuses your request for assistance from a lawyer, this can later be invoked in your favor (even nullity of the statements).

Some statement texts are preprinted as if the question were being asked, when in reality it was not. Then point this out. This is generally rectified.

In the worst assumption if they don't want to include your statement, it is better not to sign your statement.

5. Without a search warrant or permission from the residents, the police cannot enter the residence. An exception when a call comes from that place, or in the event of serious and imminent danger of disaster, or when the life or physical integrity of persons is seriously threatened. According to the indictment chamber Ghent, this power is interpreted broadly (it is sufficient that there are circumstances that can be interpreted as a request for help or that make it suspect that intervention is required).[7]

Art.88 quater § 3 Criminal Procedure Code. penalizes those who refuse to provide the code of a cell phone or other IT device ("suspects to have knowledge of the IT system that is the subject of a search, and refuses to comply with an order to provide information"). see Duty to unlock smartphones

The police can only do observation in a house with photo devices if there is authorization from the investigating judge.[8]

Arrest and pre-trial detention :

6. If serious facts have happened, you will be brought before the investigating judge.

Without the intervention of a judge you can only be arrested for a maximum of 48 hours (previously even 24 hours).

The investigating judge will go over all circumstances. Certainly when there are still gaps in the investigation, and / or a risk of recurrence or echo in the press, the arrestation will follow.

You will then appear before the Correctional Council Chamber after 5 days. Rarely there are releases at that time. Then you will have to appear before the Correctional Council Chamber every other month (except for very serious crimes, then every 3 months).

An appeal can be made before the Indictment Chamber.

In the pre-trial detention phase, your arrest, whereby serious indications of guilt must be demonstrated, will have to do with the possibility of thwarting the criminal investigation, or danger to public security (often interpreted broadly).

Cooperation is therefore recommended, without blaming yourself, of course, especially when there is no reason to do so.

Complaint with civil party claim :

7. You can also be a victim of criminal offenses.

As a rule, you report this immediately to the police.

You can also file a complaint with a civil party claim before the investigating judge.

Such a complaint does require the payment of a deposit that can be up to 500 euros (for companies 2.000 euros).

The advantage of this action is that an investigation cannot be dismissed. The case must be treated before the Correctional Council Chamber.

Please note, if a complaint is lodged against a specific person (a complaint can also be lodged against unknown persons), and the Council Chamber does not follow your view, this may lead to a conviction of a trial fee of 1.440,00 euros.

It is true that in certain cases that risk can be run, if the stakes are important.

Such research, when conducted carefully, can contribute to truth-finding.

After 3 months, a request can be made via summary proceedings to the investigating judge or prosecutor for access (which can then lead to suggestions for the investigation).

Trial before the Court :

8. In addition, assistance can be provided in the settlement of your civil interests and in claiming possible compensation in proceedings before the criminal court and / or the civil court.

As a perpetrator you also have the right to a defense, which is adjusted by us and in accordance with the renewal of rights.

Similarly, we look at the protection offered by European case law or that of our Constitutional Court (with regard to our fundamental rights). (eg a forfeiture disproportionate to the financial situation of the person is contrary to this).[9] Reference to other offenses for which the accused was not convicted may not lead to conviction for other offenses without these not being thoroughly investigated.[10]

9. Please note, in criminal cases there is only a short term of appeal, which runs from the judgment and one does not receive that automatically. Recently, the inequality created by the law was rectified by the Public Prosecutor’s Office to allow an additional period of 10 days (after the accused had lodged an appeal). The Constitutional Court states that now the defendant must also have an additional period of 10 days when the Public Prosecution Service lodges an appeal.[11]

10. In the document provided for this purpose, the grounds for appeal must be explicitly addressed, under penalty of no longer being able to be discussed during the hearing. However, the Constitutional Court[12] Has noted that the means to be raised ex officio can still be dealt with (such as formal requirements under penalty of nullity, prescription, but also whether the facts must be reclassified or do not constitute a crime (see Article 210, §2 Criminal Procedure Code).

In criminal cases, losing parties can also be sentenced to litigation costs, but in case of a civil party complaint in which the Correctional Council Chamber refers to the criminal court, it is reasonably justified that the latter is no longer sentenced to this effect if the accused is acquitted.[13]

T raffic matters :

11. What is often not considered is that many situations / violations within road traffic also falls within this legal branch (confrontation as an offender or as a victim): speeding offenses, incorrect parking, alcohol intoxication, drunkenness, flight crime, driving without insurance or valid driver's license or during a driving ban, not registering a vehicle, ... these violations often lead to a subpoena before the Police Court. In such cases you sometimes risk severe penalties such as large fines, but also the expiry of the right to drive (the so-called driving ban) or even a prison sentence.

12. If you are legally insured, the legal expenses insurer can intervene and the legal costs / costs and fees of the lawyer are at the expense of the insurance company).

[1] Parliamentary Documents Chamber 2015-16, no 2030/001, 64; cf. Dr. P. Tersago, Beuze's unfortunate legacy ?, Nullum Crimen, April 2020, p. 103 and further

[2] Ibrahim/UK nr 50541/08

[3] The particularly vulnerable position of the suspect; the other procedural guarantees in criminal proceedings; the possibility for the accused to contest the regularity and authenticity of the evidence; the circumstances (whether or not pressure, eg. due to threatening statements by the interrogators), the consistency of this statement during further proceedings; the strength of the other evidence; the public interest in the investigation and punishment.

[4] Beuze/Belgium, nr. 71409/10

[5] AR P.17.0255.N.; also see Court of Cassation 21.5..2019,A..P.19.0045.N

[6] ECHR, 11.12.2018 Rodinov / Russia, No. 9106/09; ECHR, 11.7.2019, Bloise v. France, no. 30828/13; in the event of default by the police, to inform in an understandable manner, of the obligation to remain silent

[7] Indictment Chamber Ghent, 13.2.2018, RW 2018-19, p. 1669.

[8] Art.56 bis, 2de lid Criminal Procedure Code; Court of Cassation 12.2.2019, Nullum crimen, 2019, p. 461

[9] Constitutional Court 9.2.2017, nr. 12/2017

[10] ECHR 20.2.2020, Nullum crimen, August 2020, p. 331

[11] Constitutional Court 6.6.2019, NJW 2019, nr.411, p.796

[12] Constitutional Court 20.11.2019, NJW 2020, nr. 429, pag. 736

[13] Constitutional Court 7.11.2019, NJW 2020, pag. 783