Law On Various Measures Aimed At Improving Collection Heritage Penalties And The Costs Of Justice In Criminal Matters (Ii)

Original Language Title: Loi portant des mesures diverses visant à améliorer le recouvrement des peines patrimoniales et des frais de justice en matière pénale (II)

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Read the untranslated law here: http://www.ejustice.just.fgov.be/cgi/article_body.pl?numac=2014009092&caller=list&article_lang=F&row_id=800&numero=831&pub_date=2014-04-08&dt=LOI&language=fr&fr=f&choix1=ET&choix2=ET&fromtab=+moftxt&trier=publication&sql=dt+=+'LOI'&tri=pd+AS+RANK+

Posted the: 2014-04-08 Numac: 2014009092 SERVICE PUBLIC FÉDÉRAL JUSTICE 11 February 2014. -Law concerning various measures aimed at improving collection heritage penalties and legal fees in criminal matters (II) PHILIPPE, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: Chapter 1. -Available general Article 1. This Act regulates a matter referred to in article 77 of the Constitution.
CHAPTER 2. -The criminal investigation of execution (EPE) Section 1. -Changes of Code of Instruction criminal art.
2. in the Code of criminal procedure, it is inserted a section 464/18 worded as follows: "article
464/18. § 1. The Chamber of indictments monitors implementation of the observation referred to in articles 464/14 and 464/27 which has provided data that were then used by the Crown as part of a statement or information.
The indictments chamber examines, on indictment of the Attorney general, the regularity of this observation at the time where the investigating judge release his dossier to the Prosecutor, in accordance with article 127, § 1, paragraph 1.
The indictments chamber examines, on indictment of the Attorney general, the regularity of the observation at the closing information and before the public prosecutor conducts the direct quote.
The proceedings before the indictments chamber takes place in accordance with what is provided for in article 235ter, §§ 2 to 6.
§
2. The Chamber of indictments control at the request of the judge of the application of sentences who knows an action referred to in section 464/36, § 4, the regularity of the implementation of the observations referred to in articles 464/14 and 464/27 who have provided data used by the Crown under EPA.
The courts and tribunals who know civil requests for execution of court decisions sentencing a special confiscation, a fine and costs of justice in the criminal investigation of execution may, before ruling on the merits of this claim, refer the matter to the indictments chamber to control the regularity of an observation made in the context of the EPA.
The proceedings before the Board of indictments takes place in accordance with what is provided for in article 235ter, §§ 2 to 5.
The Clerk shall communicate a copy of the judgment of the Chamber of indictments to the parties involved and the Court or tribunal referred to in paragraph 2 "."
S. 3. in the same Code, it is inserted a section 464/20 as follows: "article 464/20. The magistrate EPE can accomplish or perform an execution act referred to in article 464/19 only after prior authorization of the judge of the application of the penalties.
Of the penal enforcement judge rules on the request written and reasoned authorization at the latest within a period of five working days from the receipt of the request.
Of the penal enforcement judge examines only the legality, proportionality and subsidiarity of the Act of execution required.
The EPE magistrate is responsible for the execution of the Act of execution authorized. "."
S. 4. in the same Code, it is inserted a section 464/21 as follows: "article 464/21. § 1. The magistrate EPE may bring an appeal in cassation before the Court of cassation against the judgment of the judge of the enforcement of sentences.

§ 2. Magistrate EPE is appealing to the Supreme Court within a period of fifteen days of the pronouncement of the judgment.
The appeal in cassation is formed by a declaration at the registry of the Court of enforcement of sentences.
§ 3. The registry of the Court of the application of the sentences immediately sends the record of the proceedings at the registry of the Court of cassation.
The means of appeal are invoked in a brief filed at the registry of the Court of cassation no later than the fifth day after the statement.
§ 4. The cassation court within a period of thirty days from the date of the appeal in cassation.
The registry of the Court of cassation shall notify magistrate EPE, discontinuation within 24 hours of delivery and by registered post or by telefax.
§ 5. After a judgment of cassation with reference, another judge of the enforcement of sentences statue within a period of 15 days from the delivery of the judgment of the Court of Cassation.

§ 6. The procedure runs the remainder forms prevailing in correctional matters. "."
S. 5. in the same Code, it is inserted a section 464/36 as follows: "article 464/36. § 1. Any person aggrieved by an entry concerning his property may request the magistrate EPE the lifting of this Act of execution.
§ 2. The request is reasoned and contains election of domicile in Belgium if the applicant is not domiciled or headquartered. It is sent by registered post or by fax to the secretariat of the competent public prosecutor and entered in a register kept for that purpose.
§ 3. The EPE magistrate shall decide within a period of fifteen days from registration of the application in the registry.
It may refuse the request if it considers that the requirements of the investigation so require or if sentenced to the payment of a confiscation, fines and legal costs can be performed on the equipment concerned.
The reasoned decision of the magistrate EPE shall be communicated to the applicant and, where applicable, his lawyer, by fax or by registered delivery, within eight days of the decision.

§ 4. The applicant may appeal to the judge of the application of the sentences within a period of fifteen days from the notification of the decision.
This period is extended by 15 days if one such person resides outside the Kingdom.
The case is brought before the judge of the enforcement of sentences by a declaration made at the prison registry or the registry of the Court of enforcement of sentences and entered in a record kept for this purpose. The Clerk shall forthwith the declaration to the attention of the EPE magistrate leading the investigation.
§
5. Magistrate EPE sends the documents in the file concerning the seizure to the clerk of the Court of enforcement of sentences, which deposits them at the registry. The confidential documents referred to in section 464/14, 464/16 and 464/27 are not put at the disposal of the clerk, the judge enforcement of sentences, the applicant or his counsel.
The clerk communicates, by facsimile or by registered post, places, day and time of the hearing to the applicant or his lawyer, no later than seven days prior. The Clerk shall immediately inform the magistrate EPE of the hearing.
The parts of the file concerning the seizure are put at the disposal of the applicant and his counsel for consultation at the registry of the Court of the enforcement of sentences, for at least four days before the date of the hearing. The applicant may, at his request, a copy of the parts.
The applicant, his counsel and the public prosecutor are heard.
§ 6. Of the penal enforcement judge examines only the legality and proportionality of the seizure and statue in first and last spring on the request for waiver of the seizure within a period of thirty days from the filing of the declaration. This period is suspended during the time of delivery, at the request of the applicant or his lawyer.
The application judge sentences may, at the request of the applicant or ex officio, conduct the control provided for in article 464/18, § 2, paragraph 1, if the seizure is based on data obtained using an observation referred to in articles 464/14 and 464/27, or who has led to the seizure of goods or materials referred to in articles 464/29 , § 2, or 464/30, § 1.

The applicant losing may be sentenced to pay the costs.
The clerk communicates in 24 hours and delivered by registered post or facsimile, the judgment of the judge of the application of penalties to the applicant or his counsel as well as the EPE magistrate and, where appropriate, to the Director of the OCSC.
The judgment of the judge is not subject to opposition or appeal to the Supreme Court."
S. 6. in the same Code, it is inserted a section 464/38 as follows: "article 464/38. § 1. Magistrate EPE who have given or ordered alienation communicates its decision or order notification thereof by registered mail or by facsimile: 1 ° to dependants and the hands of which the seizure has carried out provided that their addresses are known, or their lawyers;
2 ° to persons who, based on the record, expressly manifested themselves as aggrieved by the seizure, or their lawyers;
3 ° in case of repossession, known under the State mortgage, creditors or their attorneys.
It must not be sent notification to persons who gave their consent to the measure concerned or which have renounced their rights on the property seized.
Similarly, it must not be sent notification to the seized who was informed of the seizure on a regular basis in accordance with sections 464/31, 464/33 and 464/34 and who is not opposed to a possible disposition of seized property referred to in section 464/29, § 2 and 464/30, § 1, by registered letter addressed to the magistrate , at the latest within a period of thirty days from the notification of the copy of the minutes referred to in article 464/31, § 2, paragraph 1, or article 464/33, § 2, paragraph 1, or of the written notification referred to in article 464/34, § 2, paragraph 2, in which the text of this article is mentioned.
§ 2.
The persons to which the notification has been sent can enter the enforcement judge within a period of fifteen days from the notification of the decision.

This period is extended by 15 days if one such person resides outside the Kingdom.
The case is brought before the judge of enforcement of sentences by a declaration made at the prison registry or the registry of the Court for the application of penalties and entered in a record kept for this purpose. The Clerk shall immediately communicate the statement to the magistrate conducting the inquiry.
§ 3. The magistrate EPE sends the documents in the file relating to the seizure and disposal covered by the contested decision to the registry of the Court of enforcement of sentences, which deposits them at the registry.
The clerk communicates, by facsimile or by registered post, the place, date and time of the hearing to the applicant or his lawyer, no later than seven days prior. The Clerk shall immediately inform the magistrate EPE of the hearing.
The documents in the file are made available from the applicant and his lawyer, for consultation at the registry of the Court of the enforcement of sentences, for at least four days before the date of the hearing. The applicant may, at his request, a copy of the parts.
The applicant, his counsel and the public prosecutor are heard.
§ 4. The judge of the application of the statue first and last sentences spring on the request for waiver of the extent of alienation, within a period of 30 days of the filing of the declaration. This period is suspended during the time of delivery, at the request of the applicant or his lawyer.
The applicant losing may be sentenced to pay the costs.

The Registrar shall communicate, within 24 hours of delivery and by registered post or by facsimile, the judgment of the judge of the application of penalties to the applicant or to his lawyer, as well as the EPE magistrate and, where appropriate, to the Director of the OCSC.
§ 5. The decision of the judge of the enforcement of sentences is not likely to appeal in cassation by the applicant and the magistrate EPE. "."
S. 7. in the same Code, it is inserted a section 464/40 as follows: "article
464/40. The magistrate EPE fee charges that are exposed on behalf of his office.
The proceedings for the recovery of these costs are carried out on behalf of the EPE magistrate by the proper officer of Service federal public finance.
The convicted person may appeal the decision of the magistrate EPE to fees charged, by introducing an appeal before the judge of the application of punishments, by registered letter, within a period of 30 days from the notification of the contested decision.

The judge of the statue of the application in first and last resort punishment. Costs incurred by irregular acts of performance and costs that are clearly not attributable to the personal behaviour of the convicted person are paid by the State.
The Commission's legal costs created by the (II) programme act of 27 December 2006 is aware of all appeals filed by the service provider against the decisions of the magistrate taxing EPE, the Minister of Justice or his delegate on the amount of compensation finally taxed or advanced. "."
Section 2. -Changes of Code judiciary art. 8. under article 91 of the Judicial Code, replaced by the law of 3 August 1992 and amended by the law of 11 July 1994, March 28, 2000, May 17, 2006-April 21, 2007, is complemented by two paragraphs worded as follows: "enforcement of penalties, cases relating to the recovery of money confiscated, fines and legal costs are only attributed to the judge at the Court of the enforcement of sentences acting as a single judge.
Judge of the penal enforcement who learns about the cause, preferably on the execution of sentences and confiscation of money, fines and legal costs, organized by the judicial training Institute trained. "."
S. 9. in the same Code, it is inserted an article 635bis as follows: "article 635bis. § 1. The judge of the application of the penalties which sits within the jurisdiction of the Court of appeal in which the Criminal Court which pronounced the sentence in force of res judicata is competent to entertain the claims referred to in article 464/20 of the Code of criminal procedure as well as to pronounce in the proceedings referred to in articles 464/35, 464/36 and 464/40 of the Code of criminal procedure and article 15bis § 9, of the Act of 26 March 2003 on the establishment of a Central body for the seizure and Confiscation and establishing provisions on the management at constant value of seized property and the performance of certain heritage sanctions.
However, when the conviction has been pronounced in German, only the enforcement of the sentences of Liège judge is competent. "."
S. 10. article 764, paragraph 1, of the same Code, replaced by the law of 3 August 1992 and amended by the law of 17 July 1997, July 1, 2006, May 9, 2007, may 10, 2007, May 9, 2008, January 31, 2009, 19 June 2009-6 June 2010, and by the Decree of November 6, 2008, in the Walloon Region, is complemented by a 16 ° as follows : "16 ° civil claims for the execution of court decisions sentencing a special confiscation, a fine and costs of justice in the criminal investigation of execution.".
Section 3. -Amendments to the Act of 26 March 2003 on the establishment of a Central body for the seizure and Confiscation and establishing provisions on the management at constant value of seized property and the performance of certain heritage sanctions art. 11. article 15 of the Act of 26 March 2003 on the establishment of a Central body for the seizure and forfeiture and bearing of the provisions on management for constant property value entered and the performance of certain heritage sanctions, replaced by the law of December 30, 2009, and amended by the law of March 29, 2012, is replaced by the following : "Art. 15 § 1. Without prejudice to the powers of the official competent federal public service finance which is responsible for the recovery of confiscation, the central body may, to assess the feasibility of an effective enforcement of confiscation, investigate the creditworthiness of a person convicted by a survey of solvency.
Solvency is investigated by the Director of the central organ. The Director may not delegate the investigation referred to in this article and article 15bis that Deputy Director or a liaison judge, conducting this investigation under his authority and his leadership.
§ 2. The central body may apply to the administrative services of the federal State, communities, regions, local authorities and public companies, including the financial information processing unit, to provide within the time limit set by it, all the information which it deems necessary in this investigation concerning the operations performed by the convict, its assets and on the composition and location of its heritage. These administrative services, public enterprises, and the cell are required to respond to this request.
The same application may also be addressed to carriers registered with the Crossroads Bank for enterprises. These companies are required to give this request unless they can avail themselves of a statutory obligation of secrecy.
§ 3.
When the information of the competent official referred to the § 1 about the creditworthiness of a convicted person are inadequate, or if there is evidence which shows that condemned attempts to evade the execution of the Court's confiscation decision, the central body may collect information on the creditworthiness of the person sentenced with organizations and persons referred to in article 2 of the law of 11 January 1993 on the prevention of the use of the system financial for the purpose of laundering of capital and financing of terrorism.

§ 4. Persons, the cell, the business or administrative services referred to in §§ 2 and 3 which are not legal persons referred to in article 5, paragraph 4, of the penal Code, shall be punished by a fine of twenty-six to ten thousand euros if they refuse or remain in failure to disclose knowingly and voluntarily and without legal justification the information requested within the time limit and in the manner determined by the central body Although they have been regularly required by the central organ.

§ 5. Any person who, in the head of its function, has knowledge of the applications referred to in this article or lends its assistance is required to keep secret. Any breach of secrecy is punishable in accordance with article 458 of the penal Code.
§ 6. The central organ can also load police services investigate the creditworthiness of the person sentenced.
§ 7. The central body may forward information obtained in application of this article to the competent official referred to in § 1. "."
S. 12. article 15a of the Act, inserted by the law of December 30, 2009, and amended by the law of March 29, 2012, is replaced by the following: 'article 15A. § 1. In the cases referred to in article 15, § 3, the central body may, by reasoned decision addressed to organizations and persons referred to in article 2 of the Act of 11 January 1993 on the prevention of the use of the financial system for the purpose of laundering and of the financing of terrorism, require disclosure of the following information: 1 ° the list of bank accounts Bank safes or financial instruments referred to in article 2, 1 ° of the Act of 2 August 2002 on the supervision of the financial sector and financial services, which the convicted person is the owner, agent or the real beneficiary and where applicable, all

data relevant to this subject;
2 ° the bank transactions that were carried out for a period determined on one or more of these bank accounts or financial instruments, including information about any account of origin or destination;
3 ° data concerning the licensees or agents which, for a specified period, have or had access to these Bank coffers.
In the cases referred to in article 15, § 3, the central organ has free access to the point of contact of the National Bank of Belgium pursuant to article 322 of the 1992 income tax Code. At his request, the central point of contact communicates the data available for the numbers of bank accounts and contracts concerning the convicted person.
§ 2. In his written request, the central organ specifies how and within what period the data referred to the § 1 must be communicated to him.
§ 3. If the information provided to the central in accordance with §§ 1 and 2 body reveal the existence of assets in the head of the convict, the central body may request in writing that all organizations and individuals referred to the § 1 not be divesting over debts and obligations related to these bank accounts, these Bank vaults or these financial instruments for a period which may not exceed five working days, which begins the day where the central organ sends its requisition by letter recommended, by facsimile or by electronic mail.
The measure ends right at the end of the period of five working days. Day means all days except Saturdays, Sundays and public holidays. Before the expiry of this period the measure ends in case of voluntary payment of the sum due under the forfeiture, or when the competent federal public Service public finance took the precautionary measures necessary.

§ 4. The central organ can load the agencies and individuals referred to the § 1 to make freely the goods at its disposal or transfer them to an account it says this in order to pay the balance of an enforceable confiscation.
§ 5. The organizations and individuals listed in the § 1 are required to cooperate with the prosecution and measures referred to in §§ 1, 3 and 4.
§ 6. The organization or the person referred to the § 1 which, although that regularly required by the central organ, knowingly and voluntarily, without legal justification, refuse or remains in default to the communication of the information requested or on their placing at disposal or transfer within the time and in the manner determined by the central organ, shall be punished by a fine of twenty-six euros ten thousand euros.
§ 7. The organizations and individuals listed in the § 1, or any third party, that retain or handle goods subject to a measure referred to in §§ 3 and 4 and which make them disappear with a fraudulent intent are punished with the penalties provided in section 507 of the penal Code.
§ 8. Any person who, the head of its function, has knowledge of the requisitions or measures referred to in this article or lend its assistance is required to keep secret. Any breach of secrecy is punishable in accordance with article 458 of the penal Code.
§ 9. Compensation for expenses incurred in the investigations referred to in articles 15 and 15A, the rates determined by the legislation on legal enforcement costs are applicable.
Fees are responsibility of the convicted person or the doomed civilly responsible party against which performance is required. The convicted person or the civilly liable party sentenced, however do not support unnecessary costs caused by the intervention of the magistrate of the central organ and costs that clearly do not result from their personal behavior. These costs are borne by the State.
The Director of the central organ tax charges that are related to the investigations referred to in articles 15 and 15A.
The proceedings for the recovery of these costs are carried out on behalf of the Director of the central organ by the proper officer of Service federal public finance.
The convicted person may appeal against the decision of the Director to establish the costs borne, by introducing an appeal court for the application of penalties, by registered letter, within a period of 30 days from the notification of the contested decision. The enforcement judge shall decide on this use of first and last resort. An appeal in cassation against the judgment is open for the condemned in accordance with the procedure in civil matters established by the Judicial Code.
The Commission of the costs of justice established by article 5 of the programme (II) Act of 27 December 2006 is in accordance with the procedure prescribed by article 5 of the mentioned programme act above, of all actions brought by the service provider against decisions concerning the amount advanced or permanently taxed. "."
S. 13. in article 17 bis, § 1, of the Act, inserted by the Act of 27 December 2006 and amended by the law of December 30, 2009, the phrase "They are specifically responsible for the investigations referred to in articles 15 and 15A under the authority of the Director of the central organ."
is repealed.
CHAPTER 3. -Entry into force art. 14. this Act comes into force the day of the entry into force of the Act of 11 February 2014 bearing of various measures aimed at improving collection heritage penalties and the costs of justice in matters criminal (I).
Promulgate this Act, order that it be under the seal of the State and published by le Moniteur.
Given in Brussels on February 11, 2014.
PHILIPPE by the King: the Minister of Justice, Ms. A. TURTELBOOM sealed with the seal of the State: the Minister of Justice, Mrs.
TURTELBOOM _ Note House of representatives (www.lachambre.be): Documents: complete record 53-2935: 12 December 2013 Senate (www.senate.be): Documents: 5-2406 annals of the Senate: January 30, 2014.