Articles

Settlement in criminal proceedings partially annulled

Settlement in criminal proceedings partially annulled

Settlement in criminal proceedings partially annulled

07.06.2016 BE law

Last Thursday (June 2nd) an important decision of the Belgian Constitutional Court partially annulled article 216bis § 2 of the Code of criminal procedure with regard to the settlement and the resulting end of criminal proceedings. The Court stated that article 216bis § 2 violates a set of fundamental rights, including the right to a fair trial and the principle of judicial independence.

Also available in Dutch and in French

The Constitutional Court received four prejudicial questions that were posed by the Chamber of Indictment of the Court of Appeal of Gent in a case regarding suspicious financial transactions. The defendant stated himself being discriminated by the Public Prosecutor, who in application of the articles 216bis and 216ter of the Code of criminal procedure could decide whether or not to grant a settlement, even after criminal proceedings were started and without any judicial verification of the decision’s justification.

The decision of the Constitutional Court stated that §2 of article 216bis violates articles 10 and 11 of the Belgian Constitution, combined with the right to a fair trial and the principle of judicial independence as stated by article 151 of the Constitution, article 6.1 of the European Convention of Human Rights and article 14,1 of the International Covenant on Civil and Political Rights, as far as it grants the public prosecutor the power to end criminal proceedings that were already initiated or that were already pending before the Courts, by means of settlement, without any actual judicial verification.

The Constitutional Court does not criticize the fact that the Public Prosecutor has the possibility to settle a case that has already been initiated or is already pending before the Courts, but questions arise with the lack of substantive judicial verification. The fact that a judge merely has to verify whether all formal conditions for a settlement are satisfied, is, according to the Constitutional Court, not sufficient. According to the Constitutional Court the judge should be able to properly verify the settlement concluded by the Public Prosecutor, including the proportionality and the opportunity of such settlement.

The annulment of article 216bis §2 will not have any influence on settlements concluded and validated in the past: the decision will not change anything in cases where the settlement has already lead to closure of the criminal proceedings. The Constitutional Court states that the article will remain valid until the decision has been published in the Belgian Official Journal, which could take a few weeks. After the decision has been published, it will be up to Minister of Justice Koen Geens to amend the article and to extend the judicial verification during settlement proceedings.

Constitutional Court - Decision 2016/83 (French version / Dutch version)

Team

Related news

07.08.2018 NL law
Legislative proposal to protect trade secrets: update

Short Reads - On 5 July 2016, the EU Trade Secrets Directive came into effect (Directive 2016/943/EU). The directive intends to harmonise rules regarding the protection of undisclosed know-how and business information (trade secrets) across all EU member states. As the directive is not directly applicable in the member states, each member state must enact national implementing legislation.

Read more

07.08.2018 NL law
Protection of listed companies against unsolicited takeovers, prevention of unwanted influences in the telecoms sector and protection of other vital sectors: latest developments

Short Reads - Following a recent series of (attempted) unsolicited takeovers by foreign bidders of Dutch listed companies, such as PostNL, Unilever and AkzoNobel, the protection of companies against unsolicited takeovers and the protection of vital sectors have received more attention in both the Netherlands and Europe.

Read more

31.07.2018 NL law
Can an SPV be misled before it exists?

Articles - Transactions are regularly structured through special purpose vehicles (SPVs). An SPV is often established at the end of the negotiations, just before signing the agreement. The other party to the agreement provides information and raises certain expectations during the negotiations. The individuals negotiating for the SPV do not necessarily become officers of the SPV once it is established.

Read more

07.08.2018 NL law
Boskalis v. Fugro: scope of a shareholder's right to put items on the agenda

Short Reads - Under Dutch law (section 114a of book 2 of the Dutch Civil Code), shareholders have the right to put items on the agenda of the general meeting. The question arises as to whether shareholders also have the right to force an (informal) vote in the general meeting on subjects which are not within their powers. A judgment of the Dutch Supreme Court of 20 April 2018 between Boskalis and Fugro focused on this question.

Read more

12.07.2018 NL law
Voortgang wetsvoorstel Wet bescherming bedrijfsgeheimen

Short Reads - Op 5 juli 2016 is de Richtlijn bedrijfsgeheimen (2016/943/EU) in werking getreden. De richtlijn heeft tot doel de regels inzake bescherming van niet-openbaar gemaakte knowhow en bedrijfsinformatie (bedrijfsgeheimen) in de EU lidstaten te harmoniseren. De richtlijn moest voor 9 juni 2018 geïmplementeerd zijn in de Nederlandse wet- en regelgeving. Nederland heeft deze termijn niet gehaald.

Read more

Our website uses cookies: third party analytics cookies to best adapt our website to your needs & cookies to enable social media functionalities. For more information on the use of cookies, please check our Privacy and Cookie Policy. Please note that you can change your cookie opt-ins at any time via your browser settings.

Privacy – en cookieverklaring