Since 2011, Belgian criminal law has included a provision allowing the public prosecution service to settle criminal cases out of court. This allows suspects and accused persons to avoid a public criminal trial by paying a sum of money to the State. In 2016, the Constitutional Court ruled that this procedure was unconstitutional, since it did not provide for a thorough judicial review of the settlement. The legislator has responded to that judgment with a new legislative initiative. Here we summarise the draft act and its implications.
Out of court settlements in criminal law: popular but controversial
In 2011, the Belgian legislator extended the powers of the public prosecution service to conclude out of court settlements in criminal cases. The public prosecution service itself had demanded this legislation, as it meant giving public prosecutors more tools for closing complex proceedings within a reasonable time via negotiations with suspects. Settling out of court lightens the docket and enables public prosecutors to focus on other cases. Moreover, when settling out of court, the public prosecution service is assured that a sum of money will be paid, whereas the outcome of often time-consuming proceedings remains uncertain.
Settlements also turned out to be very popular with suspects and accused persons in economic and financial criminal cases: a settlement provides clarity on the outcome of the criminal case within a limited period, with limited procedural expenses, and reputation damage is limited as there is no public trial.
The procedure has met with a more critical reception from the media. In practice, settlements were only concluded in economic and financial criminal cases. This reinforced the image of settlements as "rich man's justice". Moreover, a parliamentary commission is currently investigating whether the 2011 extended settlement legislation was fast-forwarded through parliament at the request of one of the suspects in an extensive money laundering investigation ("Kazakhgate").
The Constitutional Court intervenes: judicial review required
In 2016, the Constitutional Court temporarily halted the practice of out of court settlements in criminal cases. The Court held that there was insufficient judicial control of these settlements. Once the settlement was concluded between the public prosecution service and the suspect or accused person, the (pre-trial) court could only review whether the settlement was compatible with the legal criteria. However, the court had no competence to review the appropriateness of the settlement or the reasonableness of the settlement amount. The Constitutional Court therefore concluded that these settlements were unconstitutional insofar as no judicial control was provided with regard to proportionality or the knowledgeability of the suspect concerning the consequences of the settlement.
The practical implications of this judgment have so far been unclear. In some judicial regions, the public prosecution service has continued to settle in criminal cases, but the pre-trial court has applied more extensive control in line with the Constitutional Court's judgment (e.g. in Ghent). In other regions, the public prosecution service has refrained from concluding new settlements (e.g. in Antwerp). In May 2017, the public prosecution service finally distributed a (non-public) directive indicating to public prosecutors the conditions under which they could still propose settlements, taking into account the criteria set forth by the Constitutional Court.
New legislation under construction
Conditions for public settlements with a new duty to inform the tax and social security authorities
On 22 November 2017, a new draft act was introduced in parliament, amending the provision on settlements to incorporate the criteria set out by the Constitutional Court and introducing new requirements.
The minimum conditions for settlements have not changed: a settlement is not possible for crimes against a person's physical integrity, or when the crime is punishable with a prison sentence of more than two years. In addition to the payment of a sum of money, the public prosecution service can also include the confiscation of goods or sums of money and the payment of judicial costs as a condition for the settlement. In addition, all non-contested compensation for the victim must be paid. In the case of social security or financial crimes, settlement is also required of all outstanding taxes and social security contributions arising from the circumstances underlying the crime.
The new draft act introduces a new information duty for the public prosecution service vis-à-vis the tax and social security authorities: if a request is made to negotiate a settlement, the public prosecutor must inform the tax and social security authorities if he/she considers that the circumstances underlying the crime might also give rise to claims by the tax or social security authorities.
The procedure: prior permission from the court
The new draft act preserves the principle that settlements are concluded between the suspect or accused person on the one hand and the public prosecution service on the other. The victim and the tax or social security authorities are not involved. As before, settlements can validly be concluded up until the time when a final judgment is pronounced.
The court will henceforth decide on the settlement once the agreement is concluded and before the agreed sum is paid. The draft act provides – as required by the Constitutional Court – for a more elaborate review by the pre-trial court (in the case of a settlement during an investigation) or the court (in the case of a settlement during a trial). The court will have to review the settlement on the following grounds:
- Are the legal requirements met? Specifically: Has compensation been paid to the victim (or the social security and tax authorities, as the case may be)? Is the crime not punishable with a prison sentence in excess of two years, and it is not a crime against a person's physical integrity?
- Has the suspect or accused person agreed to the settlement voluntarily and in a considered manner (e.g. with full understanding of the consequences of the settlement)?
- Is the proposed amount proportional to the seriousness of the crime and the personality of the accused person or suspect?
However, the judge has no say as to the appropriateness of the settlement and therefore cannot decide that for certain crimes, or taking into account the personal circumstances of the victim, a settlement is inappropriate. This decision remains within the discretion of the public prosecution service.
If the court decides that the above conditions are not met, the court will refer the case back to the public prosecutor. He/she can then decide to either continue the investigation or reactivate the proceedings before the (pre-)trial court, or communicate a new settlement proposal.
If the case is not settled out of court and the proceedings are continued, the judge who decided on the settlement cannot decide on the guilt or innocence of the suspect or accused person during the remainder of the trial. No documents or communications from the negotiations can be relied on as evidence against the suspect or accused person.
If the court decides that the settlement conditions are met, the criminal proceedings will be terminated upon payment of the settlement sum.
Consequences for future settlements
We expect that the main lines of the current draft act will be adopted by parliament. Nevertheless, the High Council of Justice has already expressed some criticism of the draft act and has made a series of concrete proposals regarding clarification and improvement.
At all events, a solid legislative basis for public prosecutors is now under construction.
For many cases, the benefits of settling will remain: settlement means an easy, rapid and non-public procedure that provides clarity. Moreover, the judicial review of the proportionality of the sum may dissuade the public prosecution service from insisting on excessive demands. We also welcome the proposal that the court will have to review whether the settlement agreement was entered into on a voluntary and well-considered basis, particular where the person concerned did not have the assistance of an attorney.
However, in cases where social security or tax demands are possible, it would be advisable to think twice before entering into settlement negotiations. The draft act introduces an information duty for the public prosecutor vis-à-vis the tax and social security authorities, even if the public prosecutor has not yet been informed of or engaged in the criminal proceedings. This means that the initiation of settlement negotiations might attract the attention of the tax or social security authorities, and new (administrative) claims might arise following such notification. In addition, a settlement is not possible if sums which are due (according to the social security or tax authorities) are not paid. This may be even more burdensome, since there is no control on the correctness or proportionality of these claims.
Moreover, if the negotiations do not result in a settlement agreement or the court rejects the agreement, the tax and social security authorities will have been alerted to the ongoing criminal investigation and could start their own administrative procedure. It might then be cold comfort that documents relied upon during the negotiation cannot be used as evidence in legal proceedings.
Finally, many procedural issues still need to be clarified. Will it be possible to appeal a judgment rejecting a settlement? Will the accused person or suspect be allowed to defend the settlement before the court renders its decision? If so, will the hearing be held in chambers, given the confidential nature of the settlement negotiations? We will have to wait and see.
The draft act can be accessed here (in French and Dutch only).