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 (Ii) (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 (II) (1)

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Posted the: 2012-04-04 Numac: 2012009155 FEDERAL JUSTICE PUBLIC SERVICE November 26, 2011. -Act to amend the Act of August 5, 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) (1) ALBERT II, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: Chapter 1. -Available preliminary Article 1. This Act regulates a matter referred to in article 78 of the Constitution.
CHAPTER 2. -Amendments to the Act of August 5, 2006 on the application of the principle of mutual recognition of judicial decisions in criminal matters between the Member States of the Union European art.
2. in the Act of August 5, 2006 the application of the principle of mutual recognition of judicial decisions in criminal matters between the Member States of the European Union, it is inserted an article 1/1 as follows: «art.» 1/1. Article 873, paragraph 2, of the Judicial Code does not apply to this Act. » Art. 3. in article 2 of the Act, the following amendments are made: 1 ° in the § 1 of which the current text will form the single paragraph of article, the word "judicial" and the word "judicial" are repealed;
2 ° §§ 2 and 3 are repealed.
S. 4. in the same Act, it is inserted an article 2/1 as follows: «art.» 2/1. For the purposes of this Act, is meant by: 1 ° issuing State: the Member State of the European Union in which a decision was made;
2 ° executing State: the Member State of the European Union to which a decision has been sent to for its implementation;
3 ° gel: seizure within the meaning of articles 35, 35A, 35B, and 37 of the Code of criminal investigation and seizure provided for in the penal Code and the special laws;
4 ° decision of seizure: any judicial decision to the seizure of property;
5 ° a penalty decision: any decision imposing outright a pecuniary sanction to a physical or legal person, when the decision was made by: has) a Court of the issuing State due to a criminal offence under the law of that State;
(b) an authority of the issuing State other than a court due to a criminal offence under the law of that State, to the condition that the person concerned has had an opportunity to bring the matter before a court having jurisdiction in the criminal;
(c) an authority of the issuing State other than a court due to punishable acts under the law of this state that they constitute breaches of the rules of law, provided that the person concerned has had an opportunity to wear the matter before a court having jurisdiction in particular in criminal matters;
((d) a court having jurisdiction including in criminal matters, when the decision was rendered in what relates to a decision within the meaning of point c);
6 ° penalty: any obligation to pay: a) a sum of money after conviction for an offence, imposed in a decision;
(b) compensation to the victims, imposed in the same decision, the victim may not be a civil party to the action and the Court in the exercise of its criminal jurisdiction;
(c) a sum of money in respect of the costs of the judicial or administrative proceedings leading to the decision;
(d) a sum of money to a fund or a victim support organisation, imposed under the same decision;
7 ° confiscation: confiscation within the meaning of articles 42, 43, paragraphs 1 and 2, 43bis, 43ter, 43quater of the penal Code, as well as confiscation provided for in the penal code and the special laws;
8 ° confiscation order: any judicial decision imposed permanently and leading to the permanent deprivation of property. » Art. 5. in section 3 of the Act, the following amendments are made: 1 ° in the § 1, the words "a certified copy of ' shall be inserted between the words"under this Act", and"the decision ".
2 ° in the § 1, 'in the annex' shall be replaced by the words "in the annexes ';
3 ° the § 1 is complete as follows: ' the original of the decision and / or the original of the certificate are sent to the executing authority at its request. ';
4 ° in § 3, paragraphs 2 and 3 are repealed;
5 ° article 3 is supplemented by a § 4 worded as follows: ' ' § § 4 4 The certificate must be sent to the territorially competent prosecutor.
When the Prosecutor of the King receiving a decision is not territorially competent for monitoring in accordance with the provisions of this Act, it transmits ex officio decision to the territorially competent prosecutor and inform without delay the issuing authority by any means which leaves a written record. » Art. 6. in section 4 of the Act, the following amendments are made: 1 ° the § 1 is replaced by the following: "§ 1.» When they decide on the execution of the passed decision, the Belgian authorities recognize the decision transmitted without any further formality being required, and shall without delay take all necessary measures for its execution, subject to the application of one of the causes of refusal provided for in this Act";
2 ° in the § 2, paragraph 2, the current text of which form § 3, the words "provided that these rules do not reduce the rights and do not affect any fundamental principle of Belgian law" are replaced by "provided that these rules do not affect the fundamental rights or other fundamental principle of Belgian law."
3 ° article is supplemented by a § 4 worded as follows: ' ' § § 4 4 The substantive reasons that led to the issuance of the foreign judgment transmitted to the Belgium cannot be challenged in a Belgian Court. »;
4 ° article is supplemented by a § 5 worded as follows: ' ' § § 5 5 Any official communication is made directly between the competent authorities. » Art. 7. in article 5 of the Act, the following amendments are made: 1 ° the § 1 is replaced by the following: "§ 1.» The competent judicial authorities shall, without delay, the Service inform federal public Justice: 1 ° when they refuse the enforcement of a decision on confiscation or seizure. In this case, the competent judicial authorities shall transmit the motif and the copy of that decision;
2 ° when they refuse the execution of a decision on a penalty on the basis of article 7, § 1, 3 °. »;
2 ° in § 2, 'competent judicial authorities' shall be replaced by the words "competent authorities";
3 ° in § 2, the words "a judicial decision issued by a Belgian judicial authority» are replaced by the words"to a decision issued by a Belgian authority '.
S. (8. in article 6 of the Act, the following amendments are made: a) inserted § 2/1 as follows: § 2/1. When it comes to a decision imposing a financial penalty, the condition referred to in paragraph 2 relating to the maximum custodial sentence does not apply and the following crimes are added to the list provided for in § 2: 1 conduct ° contrary to the norms regulating road traffic, including offences under the provisions on driving and rest times and the provisions relating to the transport of dangerous goods;
2 ° smuggling of goods;
3 ° infringement of intellectual property rights;
4 ° threats and acts of violence against persons, including during sports events;
5 ° criminal vandalism;
6 ° flight;
7 ° offences established by the issuing State and covered by the execution obligations arising from instruments adopted under the EC Treaty or title VI of the EU Treaty. »;
(b) in paragraph 3, the word "judicial" is replaced by the words "seizure or confiscation.
S.
9. in section 7 of the Act, the following amendments are made: 1 ° in the § 1, 2 °, the words ' non jeopardy» are replaced by «not jeopardy ";
2 ° in the § 2, paragraph 1, the word "judicial" is repealed.
S.
10. in chapter III of the Act, it is inserted a new article 7/1 as follows: «art.» 7/1. with the exception of the decisions of seizure, execution can also be refused in the following cases: 1 ° when it y prescription of the sentence or the execution of the penalty according to the Belgian law and the acts fall within the jurisdiction of the Belgian courts;
2 ° If the decision relates to acts which, according to Belgian law, have been committed in whole or in part on Belgian territory or in a place treated as such, or who have been committed outside the territory of the issuing State and the Belgian legislation does allow not the prosecution for the same offences committed outside Belgian territory.
In the context of execution of a decision of confiscation, this cause of refusal does not apply to money-laundering offences;
3 ° according to the certificate provided for in article 3, the person concerned did not appear in person at the trial that led to the decision, unless the certificate indicates that the person concerned, in accordance with the other procedural requirements laid down in the national law of the issuing State: i) timely- or has been cited to anyone and was thus informed of the date and place set for trial that led to the decision , is has been informed officially and effectively by other means of the date and place fixed for

This trial, so that was so not equivocal had knowledge of the trial scheduled;
and - has been informed that a decision could be made in the event of non-attendance;
or (ii)) had knowledge of the planned trial, gave a mandate to a legal Council, which has been designated by the person concerned, either by the State, to defend him at trial, and actually defended by this Council during the trial;
or iii) after being awarded mean the decision and have been expressly informed of his right to a new procedure of judgment or a procedure of appeal, to which the person concerned has the right to participate and which allows to review the case on its merits, taking account of the new evidence, and may lead to a reversal of the original decision : - has expressly stated that it did not oppose the decision.
or - has not requested a new procedure for judgment or an appeal procedure within the time limit. » Art. 11. in chapter IV of the Act, article 8 is repealed.
S. 12. article 9 of the Act is repealed.
S.
13. in the Dutch text of article 14, § 3, of the Act, the words 'bevoegde autoriteit rechterlijke onverwijld' in beslissingsstaat are replaced by the words "bevoegde autoriteit rechterlijke» in of beslissingsstaat onverwijld
S. 14. in article 15 of the Act, the following amendments are made: 1 ° in the Dutch text of § 1, the word 'Enig' is replaced by 'Elke ';
2 ° in § 3, the words "in warranty" shall be replaced by the words "subject to payment of a sum of money.
S. 15. in article 17, paragraph 1, of the Act, the words "confiscation or" are repealed.
S.
16. in article 18 of the Act, the following amendments are made: 1 ° in the § 1, 'in accordance with article 3' shall be replaced by the words "in the manner laid down in article 3.
2 ° in the § 1, the word "judicial" is repealed;
3 ° in § 2, 'The decision of seizure transmitted in accordance with article 3' shall be replaced by the words 'the decision '.
4 ° in the Dutch text of § 3, the word "intrekking" is replaced by the word "bestrijding."
5 ° in § 3, the word "judicial" is repealed.
S. 17. in the same Act, it is inserted a chapter V entitled "penalties".
S. 18. in chapter V inserted by article 17, it is inserted a 1st section entitled "reasons for rejection specific to the penalty.
S. 19. in the 1st section, inserted by article 18, it is inserted a section 19 as follows: «art.» 19 § 1. The execution of the penalty shall likewise be refused when the decision was made with respect to a natural person who, under Belgian law, could not, due to his age, be held criminally responsible for the acts due to which the decision was rendered.
§ 2. The execution of the penalty may also be refused in the following cases: 1 ° if according to the certificate referred to in article 3, the person concerned, in the case of a written procedure, was not informed, in accordance with the legislation of the issuing State, personally or through a representative competent under that legislation, his right to appeal and the time limit to do so;
2 ° according to the certificate referred to in article 3, the person concerned did not appear in person, unless the certificate States that the person concerned, after having been expressly informed of the procedures and the opportunity to appear in person, has expressly waived his right to an oral proceedings and expressly signaled that it was challenging not the case;
3 ° If the amount of the penalty is less than 70 euros or an equivalent amount. » Art.
20. in chapter V, section 2, of the Act, inserted by the law of the Y 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), it is inserted an article 22 read as follows: «art.» 22 § 1. When he ordered the execution of the decision, the Prosecutor of the King converts, if needed, the amount of the penalty in euro at the rate of Exchange in effect at the time when the penalty was imposed.
§ 2. Where it is established that the decision discusses facts that have not been committed on the territory of the issuing State, the Prosecutor may decide to reduce the amount of the penalty to the maximum amount provided for acts of the same nature under Belgian law, when the facts are within Belgian jurisdiction. » Art. 21. in the same section 2, inserted an article 23 as follows: «art.» 23 § 1. Sums of money obtained as a result of the execution of the decisions returned to the Belgian State unless otherwise agreed with the issuing State, including in the cases referred to in article 2/1, 6 °, b).
§ 2. When it is not possible to execute a decision, in whole or in part, the Correctional Court may decide, at the request of the Prosecutor, the application of alternative sentences in cases where the Belgian law provides for them and if the issuing State has authorised the application of such alternative penalties in the certificate referred to in article 3. The severity of these alternative penalties is determined in accordance with the Belgian law, without being able to exceed the maximum penalty indicated in the certificate. » Art. 22. in the same section 2, inserted a section 24 as follows: «art.» 24. the Prosecutor shall notify the decision without delay to the competent authority of the issuing State by any means which leaves a written record. The notification of the decision not to recognise the penalty takes the motivation of this decision.
The Prosecutor of the King is after the completion of execution of the decision and in the event of application of alternative sentences. » Art. 23. in chapter V, inserted by article 17, it is inserted a 3 section entitled "ways of extinguishing of the decision.
S. 24. in section 3, inserted by section 23, it is inserted a section 25 as follows: «art.» 25. the amnesty and grace can be granted by the Belgium. In this case, the Prosecutor shall inform without delay the issuing State by any means which leaves a written record. ».
S. 25. in the same section 3, it is inserted an article 26 as follows: «art.» 26. it is put an end to the execution of the decision as soon as the Prosecutor of the King is informed by the competent authority of the State of issuance of any decision or measure having the effect to remove the decision its enforceability or the avoid the Belgium for any other reason. ».
S. 26. in chapter V, inserted by article 17, it is inserted a section 4 entitled "issuance of a decision by a Belgian authority '.
S. 27. in section 4, inserted by article 26, it is inserted a section 27 as follows: «art.» 27 § 1. Any decision issued by a Belgian authority is forwarded to the authority of the executing State territorially competent for execution, as laid down in article 3.
§ 2. The decision can only be transmitted to a single State of execution at a time.
The executing State is the Member State in which the natural or legal person against whom the decision was issued has property or income, has his habitual residence or head office, if he is a legal person.
§
3. Subject to the following paragraph, the Belgian authority can no longer enforce a decision which has been transmitted in accordance with this article.
The Belgian authority however resumed its right to execute the decision: has) if the executing State notified of total or partial non-implementation or non-recognition of the decision except where the decision to refuse recognition or execution is based on article 7, § 1, 2 ° or 3 ° or article 25;
(b) after having informed the competent authority of the executing state of any decision or measure having the effect to remove the decision its enforceability or the from the executing State for any other reason. This information is immediately forwarded to the competent authority of the executing State.

§ 4. If after a decision in the manner provided in article 3, an authority of the issuing State receives a sum of money that the sentenced person has paid voluntarily in respect of the decision, that authority shall inform without delay the competent authority of the executing State. Article 21 § 3 is applicable. » Art. 28. in the Act, it is inserted a chapter VI entitled "confiscation".
S. 29. in chapter VI, inserted by article 28 inserted a section 28, which reads as follows: «art.» 28. to the extent of its powers, the central organ for seizure and confiscation assists, at their request, the competent authorities for the implementation of this Act. ».
S. 30. in the same chapter VI, it is inserted a 1st section entitled "Causes of special confiscation refusal.
S. 31. in the 1st section, inserted by article 30, it is inserted a section 29 as follows: «art.» 29. execution of confiscation may also be refused in the following cases: 1 ° the rights of any interested party, including bona fide third parties, make it impossible the execution of the decision.
2 ° the decision on confiscation, in the opinion of the executing judicial authority, was made under a power of extended confiscation that goes beyond the possibility provided for in article 43quater of the penal Code. However, the decision on confiscation is performed within the limits authorized by the Belgian legislation. ».
S.

32. in chapter VI, section 2, of the Act, inserted by the law of the Y 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), it is inserted a section 32 as follows: «art.» 32 § 1. The Prosecutor shall inform without delay the competent authority of the issuing of the postponement of execution state specifying where appropriate the ground and, if possible the probable duration.
In the case referred to in article 31 § 1, 1 °, the information shall be forwarded immediately to the competent authority of the issuing State.

§ 2. As soon as the reason for the deferral ceases to exist, the measures necessary for the execution of the confiscation order are taken. The Prosecutor shall inform without delay the competent authority of the issuing State.
§ 3. The Prosecutor shall inform without delay the competent authority of the issuing State in the event of practical impossibility to execute the confiscation, either because the property to be confiscated has disappeared, has been destroyed, cannot be found in the location indicated in the certificate or because only the place where is located the well was did not of sufficiently precise manner, even after consultation with the issuing State.
§ 4. For the purposes of this provision, the information provided by the Prosecutor must be by any means capable of producing a written record. ».
S.
33. in the same section 2, inserted a section 33 as follows: «art.» 33 § 1. When the person concerned is able to provide proof of confiscation, total or partial, in another State, the Prosecutor shall consult the issuing authority by all appropriate means.
§ 2. Any part of the amount recovered in another State is fully deducted from the amount to be confiscated. ».
S. 34. in the same section 2, inserted a section 35 as follows: «art.» 35 § 1. The tribunal's decision is communicated without delay by the Prosecutor of the King to the competent authority of the issuing State by any means which leaves a written record. The communication of the decision do not run in whole or in part the decision on confiscation takes the motivation of this decision.
§ 2. The Prosecutor is also after the completion of the execution of the decision. ».
S. 35. in the same section 2, inserted a section 36 as follows: «art.» 36. the Prosecutor puts an end to the execution of the confiscation order as soon as it is informed by the competent authority of the State of issuance of any decision or measure having the effect of withdraw the decision enforceable or subtract decision to the executing State for any other reason. ».
S. 36. in the same section 2, inserted a section 37 as follows: «art.» 37. the amnesty and grace can be granted by the Belgium. In this case, the Prosecutor shall inform without delay the issuing State by any means which leaves a written record. ».
S. 37. in chapter VI, inserted by article 28, it is inserted a section 4 entitled "Transmission of a decision of confiscation of a Belgian authority '.
S. 38. in section 4, inserted by article 37, it is inserted a section 39 as follows: «art.» 39 § 1. A sentence declaring a forfeiture is transmitted to the competent authority of the executing State territorially competent for execution, as laid down in article 3.
§ 2. The decision is transmitted: 1 ° if the confiscation is a sum of money to the State in which the Prosecutor is reasonable grounds to believe that the natural or legal person against whom the decision has property or income;
2 ° If the confiscation is a listed property, the State or States in which the Prosecutor has reason to believe that are goods;
3 ° in the absence, in the State in which the natural or legal person against whom the decision was made has its habitual residence or head office, if he is a legal person.

§ 3. The decision on confiscation on a property can be transmitted to a single State of execution, except in the following cases: 1 ° the Prosecutor has reason to believe that various items of property covered by the confiscation decision are found in different States;
2 ° the confiscation of a specific covered by the decision on confiscation implies to act in several States;
3 ° the Prosecutor is entitled to believe that a specific covered by the decision on confiscation is located in one of the two States or more indicated.

§ 4. The decision on confiscation on a sum of money can be transmitted to a single executing State at the time, unless the Prosecutor deems it necessary to do so for a reason including when:-the well concerned has not been the subject of a decision of seizure pursuant to this Act, or - the value of the forfeited property in Belgium or in any State of execution may not be sufficient to run the overall amount referred by the decision of confiscation.
§ 5. The transmission of a decision of confiscation to one or more States does not limit the right of the Belgian authorities to execute themselves the confiscation.
».
S. 39. in the same section 4, it is inserted a section 40 as follows: «art.» 40 § 1. When a decision of confiscation for a sum of money is forwarded to one or more States, the Prosecutor shall ensure that the total value from its application does not exceed the maximum amount specified in the decision on confiscation.

§ 2. The Prosecutor shall immediately inform the competent authority of any executing State concerned by any means capable of producing a written record, if: 1 ° he considers that there is a risk that execution is conducted on an amount greater than the maximum to confiscate, including on the basis of information that had been communicated to it by one of the States. If so, he informed as soon as possible that the risk no longer exists;
2 ° all or part of the confiscation order has been executed in Belgium or in another State for execution. In this case, the Prosecutor said the amount that has not yet been recovered pursuant to the decision of confiscation;
3 ° a sum of money paid voluntarily in Belgium in respect of the confiscation order, after delivery of the request for execution of this decision.
§ 3. The Prosecutor shall immediately inform the competent authority of the executing State by any means which leaves a written record of any decision or measure which has the effect of removing its enforceability to the confiscation order or subtract decision to the executing State for any other reason. ».
S. 40. in the same Act, the title of the annex, which the text will form Annex 1 is supplemented by the words ', for the freezing of assets.
S. 41. in the same Act, it is inserted an annex 2 and annex 3 which are attached in annexes 1 and 2 to this Act.
Promulgate this Act, order that it self under the seal of the State and published by le Moniteur.
Given Ciergnon, November 26, 2011.
ALBERT by the King: the Minister of Justice, S. DE CLERCK sealed with the seal of the State: the Minister of Justice, S. DE CLERCK _ Note (1) Session 2010-2011.
House of representatives Documents. B 53 - 1703 N ° 1: Bill No. 2: report on behalf of the Committee Documents B 53-1833 No. 1: text adopted in plenary meeting and transmitted to the Senate Senate Document. B 5 - 1279 N ° 1: project not referred by the Senate.

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