The new Criminal Code: more than a facelift

Legal Eubdate
6 March 2024

On 22 February 2024, the Chamber of Representatives approved Book 1 (general principles) and Book 2 (crimes) of the new Belgian Criminal Code. The new Code will enter into force two years after its publication in the Belgian Official Gazette.

This new Code will then replace the current Criminal Code, which dates back to 1867 and has become complex due to numerous amendments over the years. As well as increasing readability, the amendment of the Code aims to modernise its content and bring criminal law more in line with contemporary norms and values. The common thread throughout the reforms is to keep the text of the law accurate, simple and coherent

We have summarised the most far-reaching changes below.

  • The classic distinction between felonies, misdemeanours and infractions is abolished. Instead, the Criminal Code will use the term “criminal offence” for any form of criminal behaviour.
  • Offences will be punished according to eight sanction levels. Specific offences no longer mention their own specific minimum and maximum sanction level, but simply refer to the applicable level of punishment. In addition to the eight sanction levels for natural persons, the new Code also provides for eight sanction levels for legal persons. The complex conversion mechanism through which penalties for natural persons had to be converted into penalties for legal persons will therefore no longer be applicable.
  • Regarding punishable participation, the distinction (which, in practice, had fallen into disuse) between co-perpetration and complicity is abolished. A participant will henceforth be anyone who knowingly and intentionally contributes meaningfully to a crime in one of the forms of participation listed by the law. Each participant falls under the same level of punishment as the principal offender. Even those who merely provided useful, albeit not necessary assistance in the crime being committed and who previously – as accomplices – risked a lower sanction will now be punished as offenders. 
  • The scope of a punishable attempt – previously linked to the subdivision between felonies, misdemeanours and infractions – is substantially changed. The new Criminal Code provides that an attempt is always punishable for intentional crimes. A punishable attempt is punished with a sanction at the level immediately lower than the sanction level applicable to a completed crime.
  • The new Criminal Code also makes a distinction between the concepts of “aggravating constituents” and “aggravating factors”. The presence of aggravating constituents results in the crime being punished at a higher sanction level. In addition, the law may also provide for aggravating factors. Such factors do not have the effect of allowing the court to impose a sentence at a higher sanction level, but are elements to be taken into account when establishing the concrete punishment and the severity of that punishment within a given sanction level. This distinction was already introduced during the recent reform of sexual criminal law.
  • There are a number of major changes regarding the rules of concurrence. For single-act concurrence of different crimes, only the most severe penalty can be imposed, as has been the case under the current Criminal Code. In the new Criminal Code, additional penalties can be cumulated. For concurrence of multiple criminal acts, the main penalty for the most serious crime can be increased to the immediately higher sanction level. If the heaviest penalty belongs to level seven or eight, no such increase is possible. Additional penalties may also be cumulative in the case of concurrence of multiple criminal acts. Furthermore, the regime for collective or continued offences will henceforth coincide with the regime for concurrence of multiple criminal acts. In other words, if several offences are considered to be one continued or collective offence due to the unity of intent, the rules of concurrence of multiple criminal acts will apply.
  • The adopted text reflects the declining importance of imprisonment, which is rightly regarded as an ultimum remedium. However, the new Criminal Code does introduce a number of new punishments, such as “the pecuniary penalty determined on the basis of the benefit expected or obtained from the crime” for natural and legal persons, and “the service penalty for the benefit of the community” for legal persons as an equivalent of the existing community service penalty for natural persons.
  • Finally, the reform abolishes some crimes that have become obsolete – such as “disturbing public order in markets or corn warehouses” or “disclosing the names of persons who pledge property to the Mount of Piety” – and introduces some new crimes, such as the crime of ecocide. Ecocide consists in the deliberate commission of an illegal act that causes serious, widespread and long-term damage to the environment, while knowing that these acts cause such damage.