Criminal law in the broad sense includes both substantive criminal law and criminal procedural law.
Substantive criminal law can be defined as the body of legal rules by which certain conduct is criminalised and sanctioned. Two concepts are central to this:
- offenses (the description of the criminal conduct)
- penalties (the determination of punishment)
The rules of substantive criminal law define the conditions under which individuals can be held criminally liable and the circumstances that can exclude or limit that responsibility. Here we find the general principles of culpability, attempt, participation, justification grounds, grounds for exclusion of guilt, etc.
The substantive criminal law also determines the applicable sanctions (sentences, measures, alternative sanctions) and regulates how these sanctions are to be applied by the court in concrete cases (sentencing and sentencing modalities). Following on from this are the rules of criminal enforcement law that deal with the enforcement of criminal sanctions and measures.
Criminal procedural law can be defined as the set of procedural ground rules according to which substantive criminal law is applied. Thus, criminal procedural law determines by whom and in what manner criminal procedures are carried out and how evidence of a crime is provided. It contains the rules that determine which courts have jurisdiction to adjudicate guilt and punishment, what remedies are available against the decisions of criminal courts, etc.
Criminal law is primarily directed to citizens, in the form of prohibitions. Criminal procedure law, on the other hand, is addressed primarily to the authorities charged with applying the rules of criminal procedure.
Offenses and the competent courts
In Belgian criminal law, there are three types of offenses: misdemeanours, delicts, and felonies. Misdemeanours are the least serious; felonies are the most serious. This distinction between different types of offenses is important, as their severity determines the court before which a person must appear. In criminal law, therefore, a distinction is made between three different courts: the police court, the criminal court and the assize court.
Police court
The police court pronounces on misdemeanours. A misdemeanour is the least serious form of offense. Some examples of misdemeanours include night noise, public drunkenness, violations of traffic regulations, and acts of actual or minor violence (provided that no one is wounded or beaten).
If you are required to appear before the police court, you will be receive a summons. A summons is an official written call to appear in court. The summons states what the case is about, when you must appear and before which court.
If you have been summoned, you can go to inspect the case file at the court registry where your case is being heard. The court registry is the court’s administrative office. The file contains all the evidence gathered in the investigation, as well as all the investigative acts that were carried out.
Don’t hesitate to consult a lawyer when you receive a summons. He or she will review your case, assist you and take care of your defence. Together with your lawyer, a decision will be made as to whether you need to be present at the hearing in person.
Criminal court
The criminal court rules on delicts. Delicts are offenses that are more serious than misdemeanours, but less serious than felonies. Examples of delicts include theft, abuse of trust, fraud, beatings and injuries. Attempting to commit a delict is also punishable. The penalties for this are less than for the delict itself.
Assize court
The assize court rules on felonies. Felonies are the most serious crimes. Examples of crimes include indecent assault of a minor, rape, manslaughter and murder. The attempt to commit a felony is also punishable. The penalties for this are lower than for the felony itself.
When there is a felony that needs to come before the assize court, the public prosecutor will refer the case to the assize court.
After referral, the accused and the civil parties will have the opportunity to inspect the prosecution file and obtain a copy free of charge.
Preliminary hearing
Before the actual hearing takes place, a preliminary hearing is organised. At this hearing, the list of witnesses will be compiled.
Both the accused and the civil parties may be present at the hearing or be represented by their lawyers.
Proceedings at the hearing
In principle, the accused must appear in person. An accused person who is not in custody may also be represented by his or her lawyer.
At the beginning of the hearing, the jurors are sworn in. Then the public prosecutor will read out the charges. The accused may then present a defence statement.
Afterwards, the witnesses listed during the preliminary hearing are heard one by one.
After hearing the witnesses, the civil party and the public prosecutor will be given the floor, after which the accused will have the last word.
Question of guilt
The jury as well as the magistrates will have to consider the question of guilt, but only the jury will cast a vote.
The jury will also give reasons for its decision. This is because the panel of magistrates will have to formulate the main reasons for the jury’s decision.
If the jury only reached a majority of seven votes (guilty) to five votes (not guilty) on the question of guilt, the magistrates will also have to cast a vote among themselves. If these magistrates agree by a simple majority on the innocence of the accused, he or she will be acquitted.
Sentencing
If the accused is found guilty then the sentencing debate will begin.
Again, the public prosecutor and the civil parties will speak first. Then the accused will have a chance to present his or her point of view on sentencing.
The jury and magistrates will decide on the level of sentencing or possible imprisonment after the debate. The decision is made by a simple majority. This decision must also be appropriately justified.
Civil claim
After the conclusion of the criminal trial the proceedings will continue to consider the civil case. The civil claim will be determined by the magistrates alone, without the intervention of the jury.
Sentences
Sentences can be categorised in different ways. From a practical point of view, the main classification is the legal division into police penalties, correctional penalties and criminal penalties. This classification relates to severity.
In practice, there is also a division into primary and ancillary penalties. Primary penalties can be imposed separately, ancillary ones can only be imposed together with a primary sentence. Thus, they cannot be imposed separately. The primary penalties are custodial sentences (incarceration and imprisonment), sentence under electronic surveillance, community service, probation and fines. Ancillary penalties include fines, special forfeitures, deposition, disqualification and publication of judgements and rulings. Thus, the sentence imposed by the court always consists of a primary penalty, with or without one or more ancillary penalties.
Substitute punishments are punishments that take the place of another punishment. For example, the prison sentence substituting the fine may replace a fine, and the prison sentence or fine substituting the community service order may replace a community service order. In traffic offense cases, a driving ban is imposed as an alternative to a fine.
Custodial sentences
The judge may sentence you to a custodial sentence. This sentence is served in a penal institution. The length of a custodial sentence depends on the type of offense committed:
- Misdemeanours, over which the police court has jurisdiction, are punishable by imprisonment for up to seven days.
- Delicts, over which the criminal court has jurisdiction, are punishable by imprisonment for a minimum of eight days and a maximum of five years.
- Felonies, over which the assize court has jurisdiction, are punishable by imprisonment for a minimum of five years.
Although pre-trial detention is not a sentence, any days spent in pre-trial detention are deducted from the length of the custodial sentence.
Placement under the supervision of the sentence enforcement court
Placement under the supervision of the sentence enforcement court is an additional penalty that must or may be imposed in cases specified by law with a view to protecting society from persons who commit certain serious criminal offenses that affect the integrity of persons. This additional sentence starts after the expiry of the effective main prison sentence or incarceration.
Placement under the supervision of the sentence enforcement court allows the Minister of Justice to further detain offenders after they have served their sentences.
Assistance during questioning
Since the introduction of the “Salduz” law in Belgium, everyone has the right to assistance from a lawyer during police questioning. This is because a confrontation with police or judicial authorities can bring a great deal of stress and uncertainty to a victim or suspect. Moreover, the defendant is in a particularly vulnerable position. Therefore, the lawyer has a crucial role in such scenarios. The lawyer’s presence matters at two different stages:
Confidential consultation
The suspect is entitled to a confidential consultation with the lawyer of his or her choice prior to police interrogation. If the suspect has been deprived of his or her liberty, this consultation may take a maximum of 30 minutes. This is a short time that is always spent as usefully as possible. At this stage, the lawyer tries to inform his or her client as well as possible about their rights and the possible further proceedings In addition, it is important for the defendant’s lawyer to gather as much information as possible about the situation and what facts have occurred. This enables the lawyer to think out a strategy with the defendant and therefore make the questioning go as smoothly as possible.
Questioning
During questioning, the lawyer will supervise and ensure that a suspect’s rights are guaranteed. For example, the lawyer will supervise such aspects as:
- The prohibition against self-incrimination: the right not to be compelled to incriminate oneself by making incriminating statements against oneself.
- The right to silence: the right not to be forced to answer questions, or make a statement. A suspect always has the right to choose not to answer certain questions without this having any adverse consequences.
- The manner in which the suspect is treated and whether undue pressure or coercion is applied by the police.
- How the statement is recorded by the police.
Therefore, the presence of a lawyer during an initial hearing is extremely important. It allows the lawyer to respond quickly, steering the investigation in a different direction and avoiding unnecessary delays. We therefore recommend that our clients consult a lawyer.
Role of the victim
A victim of a crime can assume various roles. It is important to note that a distinction is made between victims of different status. This is because a victim who has the status of complainant or injured party is granted fewer rights than a victim who has acquired the status of a civil party.
Criminal offenses committed by minors
An offense committed by a minor is known as an “action described as an offense’. A minor who commits such an offense does not come before the criminal court but before the juvenile court. This is because a minor cannot be prosecuted for an offense, so the juvenile court imposes measures rather than punishments. Thus, a young person cannot just go about his or her business with impunity.
Only when the age of 18 is reached does a person become legally competent. An exception concerns traffic offenses, where offenders are legally competent from the age of 16. For certain offenses, juveniles over 16 can still be convicted under adult criminal law, and will still have to appear in a criminal court. This is known as a referral order.
