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Belgium: the possibility to settle cases under Belgian criminal law

Johan Verbist, Verbist & Vanlerberghe Omega Law, Belgium

The possibility to settle cases under Belgian criminal law was drastically changed by the laws of April 14 2011 and July 11 2011 modifying Article 216bis of the criminal code. With these laws the legislator intended to guarantee that criminal offenders be punished within a socially acceptable time and in a proportional and socially relevant way, while making sure that any damages caused by such offences be indemnified.

Since August 11 2011, the date on which the aforementioned laws came into force, the main principles with regard to settlements in criminal proceedings are the following.

The public prosecutor can propose a settlement of a criminal case to a criminal offender with respect to all offences for which the public prosecutor is of the opinion that they do not need to be punished with an imprisonment of more than two years or a more severe punishment and which did not cause a serious degradation of the victim's physical integrity (such as murder, human trafficking, etc.). In practice almost all economic, financial, tax and social offences fall within the scope of article 216bis of the criminal code. The public prosecutor can make a proposition to settle the case until a definitive judgement has been rendered, even after criminal proceedings have already been initiated against the offender by a public prosecutor or after conviction which has not become final.

In his proposition the public prosecutor will give the offender a deadline to respond to the proposition. Article 216bis of the criminal code provides that this deadline must be between fifteen days and three months as from the proposition. Nevertheless, these deadlines can be shortened or extended when justified by special circumstances. The proposition itself as well as the decision to extend the deadlines will suspend the statutes of limitation applicable to the offences concerned.

The negotiations to reach a settlement with the public prosecutor are secret. If at the end negotiations with the public prosecutor turn out to be unsuccessful and no settlement is entered into, none of documents and/or other information exchanged during the negotiations can be used as evidence during the subsequent criminal proceedings or any other criminal, civil or arbitral proceedings.

The amount to be paid by the offender in the framework of the settlement will be in proportion to the seriousness of the offence and cannot be higher than the fine with which the offence is punished according to the applicable statute. At the request of the public prosecutor, the offender might also have to relinquish the illegal benefits he obtained from the offences and which normally would be the object of an optional or mandatory confiscation. In particular for offences punishable under the social criminal code the amount to be paid in the framework of a settlement cannot be lower than 40% of the applicable minimum administrative fine multiplied by the number of employees, candidate employees, self-employed persons, interns, self-employed interns or children involved. Furthermore, the committee of Attorney Generals clarified in its directive of May 3 2012 that with respect to tax fraud cases the amount of the settlement as a rule should amount to at least 10% of the evaded taxes if the offender is a natural person and up to 15% of the evaded taxes if the offender is a company. Finally, the aforementioned amounts can be increased with the costs of an expert investigation or analyses which had to be performed during the criminal investigation.

The offender will, furthermore, have to fully indemnify the victims. In this regard a settlement with respect to offences which constitute tax fraud or infringements of the social criminal code will only be possible after the offender has paid the taxes due and/or social contributions, including interest upon these amounts, to the Tax or Social Administration. The aforementioned administrations will have to explicitly agree with the settlement.

If a settlement is reached with the public prosecutor, the case will be brought before the competent Court which will have to ratify the settlement if either an Investigating Judge was entrusted with a judicial investigation or the case was already brought before the criminal court. However, the Court will only have the possibility to verify whether the formal conditions for the settlement have been met. In other words, the Court will not be able to criticise the opportunity or the proportionality of the settlement which has been obtained by the offender. If the Court ratifies the settlement, the criminal proceedings will come to an end. The fact that a settlement was obtained will not appear on the criminal record of the offender. If, on the other hand, a Court in first instance were to decide that the formal conditions of the settlement have not been met and refuses to ratify the settlement, this decision can be appealed.

The new rules on the settlement in criminal proceedings have now been applied for more than three years. Practice has shown that certain Belgian prosecutors consistently refuse to enter into a settlement with the offender, while others regularly make use of the possibility offered by Article 216bis of the criminal code. Whether or not a settlement can be reached in criminal proceedings therefore seems to depend on the jurisdictions in which the criminal investigation and the subsequent proceedings are conducted. Furthermore, and although the fact that a settlement has been obtained will not appear on the criminal record of the offender, practice has also shown that in mediatised cases it cannot be excluded neither that certain details of the settlement are leaked to the press and come to the attention of the public. Overall however, recent figures made public by the Minister of Justice show that in an increasing number of cases settlements have been entered into by the public prosecutor.