Law Amending The Law Of 5 August 2006 On The Implementation Of The Principle Of Mutual Recognition Of Judicial Decisions In Criminal Matters Between The Member States Of The European Union (I) (1)

Original Language Title: Loi modifiant la loi du 5 août 2006 relative à l'application du principe de reconnaissance mutuelle des décisions judiciaires en matière pénale entre les Etats membres de l'Union européenne (I) (1)

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19 MARCH 2012. - An Act to amend the Act of 5 August 2006 on the application of the principle of mutual recognition of judicial decisions in criminal matters between the Member States of the European Union (I) (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1er. - Preliminary provision
Article 1er. This Act regulates a matter referred to in Article 77 of the Constitution.
CHAPTER 2. - Amendments to the Act of 5 August 2006 on the application of the principle of mutual recognition of judicial decisions in criminal matters between the Member States of the European Union
Art. 2. In Article 12 of the Act of 5 August 2006 on the application of the principle of mutual recognition of judicial decisions in criminal matters between the Member States of the European Union, the following amendments are made:
1° the current text of § 1er form § 1/1 and insert a new § 1er as follows:
« § 1er. For the execution of the seizure, the procurator of the territorially competent King is that of the place where the property is located or most of them are located. »;
2° in § 2, 1°, the number ", 2/1" is inserted between the numbers "2" and "and 3";
3° in the Dutch text of § 2, 2°, paragraph 1, the word "aangevoerd" is replaced by the word "toegepast";
4° in the Dutch text of § 2, 2°, paragraph 2, the words "eerste bestudering" are replaced by the words "initieel onderzoek";
5° in the Dutch text of § 4, the words « geen beroep worden ingesteld » are replaced by the words « geen rechtsmiddel worden aangewend ».
Art. 3. In chapter V of the same law, inserted by the law of 19 January 2012 amending the law of 5 August 2006 on the application of the principle of mutual recognition of judicial decisions in criminal matters between the Member States of the European Union (II), a section 2 entitled "Execution of monetary penalty".
Art. 4. In section 2, inserted by section 3, an article 20 is inserted as follows:
"Art. 20. § 1er. For the execution of the monetary penalty, the procurator of the territorially competent King is that of the place of residence or domicile of the person concerned.
§ 2. In order to rule on the execution of the monetary penalty, the King's attorney verifies:
1° if the conditions of articles 2, 2/1 and 3 are met;
2° where there is no need to apply one of the reasons for refusal under Articles 6, 7, 7/1, and 19;
3° in the case where the fact at the base of the monetary penalty is contained in the list of Article 6, §§ 2 and 2/1, if the behaviours as described in the certificate correspond well to those taken in this list.
§ 3. Before deciding not to execute a decision, in whole or in part, the Crown Prosecutor is required to consult without delay the competent authority of the issuing State with all appropriate means when the execution is likely to be refused on the basis of Article 7, § 1er3°, Article 7/1, 1° or 3° or Article 19, § 2.
§ 4. It may be suspended from the execution of the decision during the time necessary for its translation, the costs associated with it being borne by the Belgian State. "
Art. 5. In the same section 2, an article 21 is inserted as follows:
“Art. 21. § 1er. When the King's prosecutor decides not to execute the application, this decision is final.
§ 2. When the King's prosecutor decides to execute the application, he shall inform the person concerned in writing. The decision shall have a period of thirty days from the notification of the decision to invoke one of the applicable reasons for refusal and to transmit the information necessary on this matter to the Crown Prosecutor.
§ 3. Where the person concerned is in a position to provide proof of payment, in whole or in part, in a State, the Crown Prosecutor shall consult with the competent authority of the issuing State, if any, by seeking any necessary information. Any part of the amount of the penalty recovered in any way in another State shall be deducted entirely from the amount of the penalty being executed in Belgium.
§ 4. The King's prosecutor informs the person by judicial fold of the decision he made on the basis of the information obtained.
§ 5. When the King's Attorney decides to execute the application, the person concerned may apply to the Correctional Court by request to the Registry within fifteen days of notification of the decision. The court may rule only on the basis of articles 20 to 22. The court decision may be appealed in cassation. "
Art. 6. In chapter VI of the same law, inserted by the law of 19 January 2012 amending the law of 5 August 2006 on the application of the principle of mutual recognition of judicial decisions in criminal matters between the Member States of the European Union (II), a section 2 entitled "Execution of confiscation".
Art. 7. In section 2, inserted by section 6, an article 30 is inserted as follows:
"Art. 30. § 1er. For the enforcement of confiscation, the competent correctional court is the place where the property is located or most of them.
§ 2. On the referral of the King's Attorney, the Correctional Court ruled by a reasoned decision on the execution of confiscation, after hearing the King's Attorney and the convicted person or his counsel.
§ 3. In order to decide, the court checks:
1° if the conditions of articles 2, 2/1 and 3 are met;
2° where there is no need to apply one of the reasons for refusal under Articles 6, 7, 7/1, and 29;
3° in the case where the fact at the basis of the confiscation decision is contained in the list of Article 6, § 2, if the behaviours as described in the certificate correspond well to those taken in that list;
4° if one of the grounds for stay of execution provided for in section 31.
§ 4. If the King's Prosecutor intends to request non-performance of the decision on the basis of Article 7, § 1er, 2°, of Article 7/1, 2° or 3°, of Article 29, 1° or 2° or of this Article, it must consult the competent authorities of the State of issue.
§ 5. By ordering the enforcement of the confiscation decision, the court converts, if necessary, the amount to be confiscated in euros at the exchange rate in force at the time the confiscation decision was pronounced.
§ 6. The court's decision is subject to appeal to the court of appeal. The appeal decision can be appealed in cassation.
§ 7. Any interested third party who may, according to the information provided by the procedure and under his or her legitimate possession, claim rights on the subject matter of confiscation, is informed of the determination of the hearing before the competent correctional tribunal.
§ 8. The competent authority of the issuing State shall be informed of any appeal filed in accordance with § 6".
Art. 8. In the same section 2, an article 31 is inserted as follows:
“Art. 31. § 1er. The Correctional Court or, even before the court is seized, the Crown Prosecutor may decide to postpone the execution of the confiscation decision in the following cases:
1° if the decision of confiscation concerns a sum of money and, due to the simultaneous execution of the decision in several Member States, the total value from the execution may be greater than the amount specified in the decision;
2° where the execution of the case may affect an ongoing criminal investigation, until the judge in charge of the case considers it reasonable;
3° where a translation of all or part of the confiscation decision is deemed necessary, during the period to obtain the translation thereof at the expense of the enforcement State;
4° where the property is already subject to confiscation;
5° in case of a third party appeal.
§ 2. During the time of the postponement, a seizure power is recognized to the King's Prosecutor to avoid the fact that the property is no longer available for the purpose of executing the confiscation. "
Art. 9. In the same section 2, an article 34 is inserted as follows:
“Art. 34. In the event of a contest between two or more confiscation decisions relating to a sum of money while the person concerned does not have sufficient assets in his or her heritage so that all decisions can be made, or on the same specific property, the court determines the confiscation decision(s) to be executed with due regard to all circumstances.
These circumstances may relate to the possible existence of other property seized in the same case, the relative gravity and the place of commission of offences, as well as the dates on which the various decisions were rendered and transmitted. "
Art. 10. In chapter VI of the same law, inserted by the law of 19 January 2012 amending the law of 5 August 2006 on the application of the principle of mutual recognition of judicial decisions in criminal matters between the Member States of the European Union (II), a section 3 entitled " Destination of confiscated property".
Art. 11. In section 3 inserted by section 10, an article 38 is inserted as follows:
“Art. 38. § 1er. The King's Prosecutor determines the destination of confiscated property in the following manner:
1° when it is a sum of money, the amount recovered shall be paid to the public treasury if it is less than 10,000 euros. In other cases, 50% of the amount recovered to the issuing State, the remaining amount returned to the public treasury;
2° when it is a property other than a sum of money, the King's attorney may decide:
(a) order the sale of the property. In this case, the proceeds of the sale shall be distributed in accordance with § 1er, 1° ;
(b) transfer the property to the issuing State;
(c) where it is not possible to apply (a) or (b), it may be disposed of property in accordance with Belgian law.
§ 2. The Belgian authorities are never obliged to sell or return the confiscated property when it comes to cultural property belonging to the Belgian cultural heritage.
§ 3. The Minister of Justice may agree with the issuing State to waive the rules established by §§ 1er and 2. "
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, 19 March 2012.
ALBERT
By the King:
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Notes
(1) 2010-2011 session.
House of Representatives
Documents. B 53-1703
No. 1: Bill
Number 2: Report made on behalf of the Commission
No. 3: Text adopted by the Commission
No. 4: Text adopted by the Commission
No. 5: Text adopted in plenary and transmitted to the Senate
Senate
Document. B 5-1278
Number 1: Project transmitted by the Chamber
No. 2: Amendments
Number 3: Report made on behalf of the Commission
No. 4: Text corrected by commission
No. 5: Text adopted in plenary and subject to Royal Assent.