We had seen it coming for a while (see also Eubelius Spotlights December 2017), and on 12 May 2018 the time had come: the Act of 18 March 2018 amending various provisions of criminal law, criminal procedure and procedural law entered into force. By adapting the legislative framework, this act aims (among other things) to breathe new life into the procedure for extinction of prosecution through payment of a sum of money (better known as "settlement").
The story of settlements being reached after the initiation of criminal proceedings came to an end (temporarily) on 2 June 2016, when the Constitutional Court ruled that the framework which was then in place for such settlements violated the Constitution. The violation resulted from the fact that a settlement could still occur after criminal proceedings had been initiated without any requirement for judicial supervision of the extinction of prosecution, whereas such judicial supervision (by the preliminary courts, the court itself or the court of appeal) was required whenever a case was closed by a nonsuit, an acquittal or a conviction. The Constitutional Court considered it unacceptable that, in the context of reaching a settlement, the authority of the competent court was limited to verifying compliance with the formal requirements.
The Public Prosecution Service tried to respond to these criticisms by means of an (unofficially) adapted procedure, but multiple preliminary courts, courts and courts of appeal refused to apply this modified procedure in the absence of a formal legislative framework.
This situation has now been resolved through the Act of 18 March 2018 amending various provisions of criminal law, criminal procedure and procedural law.
As from 12 May 2018, it is again possible to reach (in accordance with the law) a settlement with the Public Prosecutor in cases where criminal proceedings have already been initiated. In order to meet the requirements that were determined by the Constitutional Court, an adjusted procedure is provided for, with a proportionality test as the most important addition.
Specifically, the competent judge will have to verify, just like before, whether:
- the facts lend themselves to a settlement; and
- the person involved has made all necessary payments (taxes or social security contributions, if any, or compensation for the victim).
Unlike before, it does not end here for the judge. Under the provisions of the new act, the judge will also have to verify whether the settlement proposed by the Public Prosecutor is proportionate to the seriousness of the facts and the personality of the suspect, and whether the proposal was accepted by the latter without undue pressure and after due consideration. Only if the judge decides that this is in fact the case will he/she confirm the settlement, whereupon the prosecution lapses.
If the competent judge does not confirm the settlement, or if the negotiations between the suspect and the Public Prosecutor break down, all the documents provided in the context of these negotiations have to be removed from the file. Neither these documents nor any oral statements can be used against the suspect during the further course of the criminal proceedings. The only impact of the attempt to reach a settlement on the criminal proceedings is the suspension of the limitation period. With effect from 12 May 2018, the statute of limitations will be suspended from the time of the proposal (by the Public Prosecutor) or the request (by the suspect) for a settlement until the non-ratification of the settlement, the decision of the Public Prosecutor not to allow a settlement, or the observation that the settlement was not executed (or not executed in time).
For the sake of completeness, we should add that the Act of 18 March 2018 also adjusted the procedure concerning the extinction of prosecution by means of respecting certain measures, to bring this in line with the amended procedure for settlements. From now on, that procedure, too, will not be confirmed by the judge unless he/she finds that the proposed measures are proportionate to the seriousness of the facts and the personality of the suspect, and that the suspect accepted those measures voluntarily and after due consideration.