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Law On The European Protection Order

Original Language Title: Loi relative à la décision de protection européenne

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http://www.ejustice.just.fgov.be/eli/loi/2017/04/09/2017012058/monitor

9 AVRIL 2017. - European Protection Decision Act



PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The House of Representatives adopted and sanctioned the following:
CHAPTER 1er. - Preliminary provisions
Article 1er. This Act regulates a matter referred to in Article 74 of the Constitution.
Art. 2. This Act provides for the transposition of Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European Protection Decision (Official Gazette, 21 December 2011, L 338/2). This law is applicable in the context of relations with Member States that are bound by Directive 2011/99/EU.
CHAPTER 2. - General principles
Art. 3. § 1er. This Act regulates the recognition of protective measures, as referred to in Article 4, in the territory of a Member State of the European Union other than that which pronounced the protection measure. It also establishes the rules whereby a member State ensures compliance with protection measures.
§ 2. The objective is to contribute to the protection of victims or potential victims of offences who will reside or reside already or who will already stay or stay in a Member State other than that which has pronounced the protection measure.
Art. 4. For the purposes of this Act:
1° European protection decision: a decision taken by the competent authority of a Member State and relating to a protection measure, on the basis of which the competent authority of another Member State shall take appropriate measures under its national law to ensure an uninterrupted protection of the person benefiting from the protection measure;
2° protection measure: a decision in criminal matters adopted in the issuing State in accordance with its national law and national procedures, under which one or more of the prohibitions or restrictions referred to in Article 5 are imposed on a person who originates from the danger in order to protect a person benefiting from the measure against an offence likely to endanger his or her life, physical or psychological integrity, dignity, personal freedom or sexual integrity;
3° person benefiting from a protective measure: a natural person who enjoys protection from a protective measure adopted by the issuing State;
4° person responsible for the danger in question: the physical person to whom one or more of the prohibitions or restrictions referred to in section 5 were imposed;
5° State of issue: the Member State of the European Union in which a protection measure was adopted on the basis of which a European protection decision can be issued;
6° Implementing State: the Member State of the European Union to which a European protection decision was transmitted for its recognition;
7° Supervisory status: the Member State of the European Union to which a judgment was transmitted, within the meaning of Article 3 of the Act of 21 May 2013 on the application of the principle of mutual recognition to judgments and probation decisions for the purpose of the supervision of probation measures and substitute penalties imposed in a Member State of the European Union or a decision within the meaning of Article 3 of the Law of 23 March 2017 on the application of the principle of mutual recognition
8° certificate: the document whose model is listed in Appendix 1re, completed and signed by the competent authority of the issuing State which certifies that its content is accurate.
Art. 5. A European protection decision may only be issued when a protective measure has been adopted in advance in the issuing State, which imposes on the person responsible for the danger in question one or more of the following prohibitions or restrictions:
1° a prohibition of travel to certain places, places or certain areas where the person receiving protection resides or visits;
2° a prohibition or regulation of contacts, regardless of their form, with the person receiving a protection measure, including by telephone, electronic or ordinary mail, by fax or by any other means; or
3° a prohibition of approaching a person with a protection measure less than a certain distance, or a regulation thereof.
Art. 6. A person with a protection measure, a guardian or a representative may apply for a European protection decision, either to the competent authority of the issuing State or to the competent authority of the enforcement State.
Art. 7. Any official communication is made directly between the competent authorities. The competent Belgian authorities also consult the competent authorities of the other Member State concerned whenever the situation requires.
Art. 8. The European protection decision, issued in accordance with the certificate in Appendix 1, is transmitted by any means leaving a written record.
Art. 9. The costs resulting from the application of this Act are borne by Belgium, excluding costs incurred exclusively in the territory of the other Member State.
CHAPTER 3. - Procedure for the recognition of a European protection decision issued in another Member State of the European Union and the enforcement of the protection measure in Belgium
Section 1re. - Conditions of Recognition and Enforcement
Art. 10. Recognition of a European protection decision and enforcement of the protection measure are denied in the following cases:
1° the recognition of the European protection decision is contrary to the principle "ne bis in idem";
2° Belgian law provides for immunity which makes it impossible to execute the European protection decision;
3° according to Belgian law, the person at the origin of the danger in question could not, because of his age, be criminally responsible for the act or act that is at the origin of the protection measure;
4° criminal proceedings are prescribed under Belgian law and Belgian courts are competent to hear facts for which the measure of protection has been adopted;
5° there are serious reasons to believe that the enforcement of the protection measure would have the effect of violating the fundamental human rights at the origin of the danger, as enshrined in Article 6 of the Treaty on the European Union.
Art. 11. § 1er. The execution of a European protection decision may be refused in the following cases:
1° the conditions set out in Article 5 are not fulfilled;
2° the European protection decision refers to a fact that does not constitute a criminal offence under Belgian law;
3° the offence which is the basis of the European protection decision is covered by an amnesty law in Belgium, provided that the facts have been prosecuted in Belgium under Belgian law;
4° the European protection decision deals with criminal offences which, according to Belgian law, are considered to have been committed in whole or in large part or for the most part in its territory.
§ 2. If the certificate provided for in Article 4, 8° is incomplete, the recognition of the European protection decision and the execution of the protection measure may be allowed if the Belgian enforcement authority considers that it has sufficient information.
If the Belgian enforcement authority considers that it does not have sufficient information to allow the recognition of the European protection decision and the enforcement of the protection measure, it shall give the issuing authority a reasonable time to complete the certificate. If the information is not provided within the time limit, recognition and enforcement are denied.
Section 2. - Recognition and Enforcement Procedure
Art. 12. § 1er. The competent authority for the recognition of a European protection decision is the Public Prosecutor's Office in the district court where the place where the person benefiting from the protection measure decides to reside or stay principally or, as the case may be, where the person is already residing or staying principally.
§ 2. When another Belgian authority receives the European protection decision, it shall forthwith transmit it to the territorially competent public prosecutor and shall promptly inform the authority of the issuing State by any means leaving a written record.
Art. 13. The European protection decision addressed to the Public Prosecutor's Office must be written or translated into Dutch, French, German or English by the competent authority of the state of issue.
Art. 14. The Public Prosecutor's Office deals with the European protection decision with the necessary speed and with the same priority as that of a similar Belgian case, taking into account the specific circumstances of the case, including the urgency of the case, the expected date of arrival of the person benefiting from a protection measure in Belgian territory and, if possible, the seriousness of the risk incurred by the person receiving a protection measure.
Art. 15. § 1er. In order to decide on the recognition of the European protection decision, the Public Prosecutor's Office shall, upon receipt of the European protection decision, verify whether any of the reasons for refusal provided for in Articles 10 and 11.
§ 2. When the Public Prosecution Service decides to recognize the European protection decision, it shall, without delay, make or require a decision to adopt any measure provided by Belgian law in a similar case to ensure the protection of the person concerned. The measures must correspond, to the widest possible extent, to the protection measure imposed in the issuing State.
§ 3. When the Public Prosecutor's Office decides not to recognize the European protection decision, the Public Prosecutor's Office shall inform the person who is granted a legal protection measure. A person with a protective measure may challenge the decision of the Public Prosecutor's Office and refer the board's board, by request to the Registry, within 15 days of the notice by judicial fold. The board's board shall rule only on the basis of articles 10 and 11. The decision of the board's board may be appealed in cassation.
Section 3. - Application of the protection measure and its consequences
Art. 16. § 1er. The application of the protection measure is governed by Belgian law, including measures that can be taken in the context of the execution of the European protection decision.
§ 2. In accordance with paragraph 1erthe following measures may be taken in the event of failure to comply with the European protection decision:
1° to prosecute following the breach, if the breach constitutes a criminal offence under Belgian law;
2° make any non-criminal decision regarding the breach;
3° take any urgent and interim measures to end the failure, pending, if any, a subsequent decision of the issuing State.
§ 3. The measures referred to in paragraph 2 shall correspond as far as possible to the protection measure imposed in the issuing State.
Art. 17. If the competent authority of the issuing State has amended the European protection decision, the public prosecutor shall:
1° amends the measures adopted on the basis of the European protection decision, acting in accordance with Article 15, § 2, or requires modifications thereof; or
2° refuses to enforce the amended prohibition or restriction when it does not fall within the types of prohibitions or restrictions referred to in Article 5, or if the information accompanying the European protection decision is incomplete or has not been completed within the time limit set by the Public Prosecutor in accordance with Article 11, § 2.
Art. 18. § 1er. The Public Prosecutor's Office may terminate measures taken pursuant to a European protection decision or require:
1° where there are elements that make it clear that the person benefiting from a protection measure does not reside in or reside in Belgian territory, or that he has permanently left the territory;
2° where, according to Belgian law, the maximum period of validity for the measures adopted pursuant to the European protection decision has expired;
3° in the case referred to in Article 17, 2°; or
4° where a judgment within the meaning of Article 3 of the Act of 21 May 2013 relating to the application of the principle of mutual recognition to judgments and probation decisions for the purpose of the supervision of probation measures and substitute penalties pronounced in a Member State of the European Union or a decision on control measures within the meaning of Article 3 of the law of 23 March 2017 relating to the application of the principle of mutual recognition to decisions relating to title
§ 2. Before putting an end to the measures in accordance with § 1er, 2°, the public prosecutor may invite the competent authority of the issuing State to provide information indicating whether the protection provided by the European protection decision is always necessary in the circumstances of the case.
Art. 19. If the competent authority of the issuing State has made the revocation or withdrawal of the European protection decision, the public prosecutor shall terminate the measures adopted in accordance with Article 15, or shall require it as soon as it has been duly informed by the competent authority of the issuing State.
Section 4. - Information to be transmitted to the issuing State, to the person benefiting from a protective measure and to the person responsible for the danger
Art. 20. If the person benefiting from a protective measure, his guardian or representative has requested the issuance of a European protection decision to the Public Prosecutor's Office, the latter shall forthwith transmit the application to the competent authority of the issuing State.
Art. 21. § 1er. The Public Prosecutor's Office shall promptly inform the person receiving a protection measure and the competent authority of the issuing State, as the case may be:
1° of the reasoned decision not to recognize the European protection decision;
2° of measures taken in accordance with Article 15, § 2, as well as measures that may be taken in accordance with Article 16, § 2, in case of breach of protection measures;
3° of the decision to put an end to the measures taken pursuant to the European protection decision in accordance with Article 18, § 1er.
§ 2. The Public Prosecutor ' s Office shall also promptly communicate the information referred to in § 1er, 2°, to the person responsible for the danger. Neither the address or other contact information of the person receiving a protection measure shall be disclosed to the person at the origin of the danger in question unless such clarification is necessary to enforce the measure adopted in accordance with Article 15, § 2.
§ 3. When the public prosecutor refuses to acknowledge a European protection decision, he or she also informs the person who is entitled to a protection measure, if any, of the possibility of requesting that a protective measure be adopted in accordance with Belgian law.
§ 4. The Public Prosecutor's Office shall inform the competent authority of the State of issue or the State of surveillance of any breach of the measure or measures taken in accordance with Article 15, § 2. The communication of this information shall be carried out by making use of the standard form set out in Annex 2, which must be written or translated into the official language or in any of the official languages of that State or in one or more other official languages of the institutions of the European Union that this State accepts under a declaration made with the European Commission.
CHAPTER 4. - Procedure for the recognition and enforcement of a European protection decision issued by a Belgian authority in another EU Member State
Section 1re. - Competent issuing authority
Art. 22. The competent authority to issue and transmit a European protection decision for the purpose of recognition and enforcement in another Member State is the Public Prosecutor's Office at the Court of the Borough where the protection measure was adopted is based on the European protection decision.
Section 2. - Conditions for issuing a European protection decision
Art. 23. § 1er. A European protection decision can only be issued:
1° where a person with a protective measure decides to reside or reside in another Member State or when the person decides to stay or is already in another Member State; and
2° where the person benefiting from a protective measure, the guardian or the representative has applied directly or via the competent authority of the enforcement State; and
3° where the conditions set out in Article 5 are met.
§ 2. When deciding on the issue of a European protection decision, the Public Prosecutor's Office shall take into account, inter alia, the duration of the period or periods during which or where the person receiving a protective measure intends to stay in the enforcement State and the validity of the need for protection.
Section 3. - Procedure for transmitting a European protection decision
Art. 24. § 1er. The public prosecutor shall transmit the European protection decision to the competent authority of the enforcement State by any means leaving a written record. The certificate must be written or translated into the official language or in one of the official languages of that State or in one or more other official languages of the institutions of the European Union which that State accepts under a declaration made to the European Commission.
§ 2. If the competent authority of the enforcement State is not known, the necessary research may be carried out by any means, including via the points of contact of the European Judicial Network and the Belgian member of Eurojust, in order to obtain this information from the enforcement State.
Section 4. - Monitoring of the protection measure
Art. 25. § 1er. The competent Belgian authority retains the monitoring of the protection measure which is at the basis of the European protection decision and is solely competent in accordance with Belgian law to make decisions concerning:
1° to the extension, review, modification, revocation and withdrawal of the protection measure;
2° to the application of a custodial measure following the revocation of the protective measure, provided that the measure of protection was taken on the basis of a judgment, within the meaning of Article 3 of the Act of 21 May 2013 relating to the application of the principle of mutual recognition to judgments and probation decisions for the purpose of the supervision of probation measures and substitute penalties imposed in a Member State of the European Union
§ 2. When a judgment within the meaning of Article 3 of the Act of 21 May 2013 relating to the application of the principle of mutual recognition to the judgments and decisions of probation for the purpose of monitoring the measures of probation and the penalties of substitution imposed in a Member State of the European Union or a decision on measures of control within the meaning of Article 3 of the Act of 23 March 2017 relating to the application of the principle of mutual recognition to decisions concerning measures of control
§ 3. When a measure of protection appears in a judgment, within the meaning of Article 3 of the Law of 21 May 2013 relating to the application of the principle of mutual recognition to judgments and decisions of probation for the purpose of monitoring the measures of probation and the penalties of substitution imposed in a Member State of the European Union, which has been transmitted or is transmitted to another Member State after the issuance of the decision of European protection
Section 5. - Have information
Art. 26. § 1er. The Public Prosecutor's Office informs the person receiving a protection measure of the decision to issue a European protection decision or to reject the application for the issuance of a European protection decision.
§ 2. The Public Prosecutor shall promptly inform the competent authority of the State of enforcement of the decisions referred to in Article 25, §§ 1er and 3.
CHAPTER 5. - Transitional provision
Art. 27. This Act does not apply in the context of relations with Member States that have not transposed Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European Protection Decision.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, 9 April 2017.
PHILIPPE
By the King:
Minister of Justice,
K. GEENS
Seal of the state seal:
Minister of Justice,
K. GEENS
____
Note
House of Representatives (www.lachambre.be)
Documents: 54 - 2263.
Full report: 17 March 2017.

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