The second Potpourri act, the act of 5 February 2016 regarding amendment of criminal law and criminal procedure and regarding various provisions in the matter of justice, was published in the Official Gazette on 19 February 2016.
The act amends some aspects of criminal law and criminal procedure. The major part of the changes on "material" criminal law – such as the far-reaching possibilities to refer a criminal case to a correctional court and thus the pro forma survival of the Assizes Court – will be of little or no significance to enterprises. However, other amendments – most of which are of a procedural nature – will have an impact on procedures where enterprises are or could be involved. Here is a short overview of these new aspects introduced by the Potpourri II act.
Amendment of criminal law: corruption
Among the amendments to criminal law, those regarding the criminal offence of "corruption" will be the most relevant.
Following a recommendation of the Council of Europe's Group of States against Corruption, Belgium needed to harmonise its law regarding "passive bribery" (articles 246, §1 and 504bis, §1 of the Criminal Code) in line with existing case law. These articles now state that not only asking for or accepting a benefit of any nature will be a form of passive bribery, but also receiving such a benefit. Case law already held that receiving a benefit is part of accepting it.
The sentences for active and passive bribery of or by a person in public office of a foreign state or of an international statutory organisation have been strengthened. The minimum sentences are now three times higher than before, and the maximum sentences are five times higher.
The amendment of articles 246 and 504bis of the Criminal Code has not really "changed" the sense of the law, but simply clarified it. The Potpourri II act can therefore be applied retroactively in this respect. The changes regarding international bribery became effective upon the entry into force of the act on 29 February 2016.
Amendment of criminal procedure: seizure by equivalent
Article 35ter of the Code of Criminal Procedure no longer states that the prosecutor can seize all goods in a person's possession for the "amount of the presumptive pecuniary profit of a crime", but that the seizure relates to the "presumptive amount of the financial benefit of the crime".
This amendment has little impact, since the case law of the Court of Cassation had already previously held that the prosecutor had to take into account the presumptive amount when applying article 35ter of the Code of Criminal Procedure.
One should bear in mind that the prosecutor must make as specific as possible an estimation of this presumptive amount and must limit the seizure by equivalent to this amount.
Also, a new paragraph was added to article 35ter, §1 of the Code of Criminal Procedure regarding the seizure of financial benefits from the concealment of stolen goods and money laundering.
The new rules regarding seizure by equivalent came into force on the date of entry into force of the act, on 29 February 2016.
Amendment of criminal procedure: guilty plea
The "guilty plea" is a new procedure in Belgian law, consisting in an upfront acknowledgment of guilt, which has been based on the French "comparution sur reconnaissance préalable de culpabilité". This mechanism, written in article 216 of the Code of Criminal Procedure, deals with the situation where a suspect or an accused person acknowledges his/her guilt (usually in order to obtain a reduction of sentence) before a final judgment is rendered by a court of first instance or a court of appeal. The guilty plea cannot, however, occur during the criminal investigation by an investigative judge. The bargain made with the prosecutor's office has to be ratified (or dismissed) by a judge.
The guilty plea is only possible when the prosecutor has no intention, if the case would have gone to court, of asking for a conviction in excess of five years. Article 216 of the Code of Criminal Procedure also contains a list of crimes for which the guilty plea is never possible.
The victim of the crime will not be involved in the guilty plea procedure, which is handled between the suspect/the accused and the prosecutor. The victim will, however, receive a copy of the bargain, on which he/she can base a civil claim.
As long as the bargain is not ratified by a court, its content will generally be confidential. This gives an individual the opportunity to use this procedure to get an idea of how strong the case against him is.
The guilty plea became effective on the date of entry into force of the act, on 29 February 2016.
Amendment of criminal procedure: settlement
Article 216bis of the Code of Criminal Procedure, regarding the procedure known as settlement ("minnelijke schikking"/"transaction pénale"), has also been amended by the Potpourri II act.
Before the Potpourri II act, a settlement was possible until the moment when a judgment was no longer open to challenge or appeal. Therefore it was possible to apply article 216bis of the Code of Criminal Procedure during the procedure before the Court of Cassation. The legislator has now decided to limit the settlement procedure to situations where no judgment deciding on guilt has yet been rendered. Once a judge has decided on the question of guilt, article 216bis of the Code of Criminal Procedure can no longer be applied.
The judgment establishing the extinction of criminal action as a result of the settlement will thereafter be mentioned on the criminal record. It will not be mentioned on the extracts of the criminal record used by administrative authorities and private individuals, however, because such a judgment contains no conviction.
Amendment of criminal procedure: opposition against judgments in absentia
Another radical change introduced by the Potpourri II act is the limitation of the possibility to lodge opposition against a judgment rendered in the absence of the suspect/the accused.
Before, opposition was a(n) (absolute) right within the criminal procedure, but this remedy has now been drastically limited, in both police courts and criminal courts.
Henceforth, one can only oppose a judgment in absentia when one wanted to be present during the hearing (in person or represented by counsel) but was unable to because of "circumstances beyond control" ("overmacht"/"force majeure") or "a legitimate reason" ("wettige reden"/"excuse légitime").
"Circumstances beyond control" means an unforeseeable and insurmountable difficulty such as an illness or the death of a family member. Absence because of "a legitimate reason" probably refers to the situation where the absence of the accused is not due to his own fault or negligence, e.g. if he did not receive the summons.
The judge before whom the opposition is brought must assess whether circumstances beyond control or a legitimate reason are at hand. Failing such an excuse, the judge will invalidate the opposition, and the judgment in absentia will regain force and become final. In the presence of such an accepted excuse, the opposition will be held admissible; the judgment in absentia will then be invalidated, and the case will be heard again at the first upcoming hearing.
For the sake of completeness, it should be mentioned that, in principle, the objection will always be admissible when it is not certain whether the accused knew of the summons relating to the hearing at which he was not present.
During the procedure concerning opposition, the accused (or his counsel) should always be present. If not, the objection can still be invalidated, and the judgment in absentia will again be final.
Appeal can be lodged against the judgment to invalidate the opposition, in which event the case will then be heard again before the appeal court.
The new rules on opposition became effective on 1 March 2016.
Amendment of criminal procedure: appeal
The Potpourri II act also amended appeal rules. It will no longer be sufficient to make a declaration of appeal. Henceforth it will be necessary to lodge a statement of grounds of appeal, failing which the appeal will be inadmissible. This statement should contain all grounds, including the procedural grounds, on which one wishes to protest the first judgment.
Due to this additional obligation, appeal can be lodged within 30 days of the judgment, instead of 15 days as was previously the case. When the appeal by the accused also involves a civil claim, the civil party (victim) will now have an additional 10 days to lodge appeal, instead of 5 days as it was before. This will be the same for the prosecutor's office when it wants to follow an appeal made by the accused and/or the civil party.
In principle, only the grounds mentioned in the statement are presented to the court. The appeal judge can only rule upon those grounds. However, the judge will also have to rule upon the grounds which the law requires him always to review, such as the obligation to (re)qualify the facts if necessary and the obligation to investigate whether the facts of the case can indeed be considered as a crime.
These new appeal rules became effective as of 1 March 2016. They also apply to pending appeal terms, which are hence prolonged.