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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26 NOVEMBER 2011. - 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 (II) (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 78 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 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, an article 1er/1 to read:
“Art. 1er/1. Section 873, paragraph 2, of the Judicial Code does not apply to this Act. »
Art. 3. In section 2 of the Act, the following amendments are made:
1° in § 1er, whose current text will form the single paragraph of the article, the word "judicial" and the word "judicial" are repealed;
2° §§ 2 and 3 are repealed.
Art. 4. In the same Act, an article 2/1 is inserted as follows:
"Art. 2/1. For the purposes of this Act:
1° State of issue: the Member State of the European Union in which a decision was rendered;
2° Implementing State: the Member State of the European Union to which a decision was transmitted for the purpose of its execution;
3° Gel: seizure within the meaning of articles 35, 35bis, 35ter and 37 of the Code of Criminal Instruction as well as seizures under the Penal Code and the special laws;
4° Disposition decision: any judicial decision for the seizure of property;
5° Decision on a pecuniary penalty: any decision making a final monetary penalty to a natural or legal person, where the decision was rendered by:
(a) a jurisdiction of the issuing State because of a criminal offence under the law of that State;
(b) an authority of the issuing State other than a court of law because of a criminal offence under the law of that State, provided that the person concerned had the opportunity to bring the case to a court with jurisdiction in particular in criminal matters;
(c) an authority of the issuing State other than a court of law because of acts punishable under the law of that State in that they constitute offences under the rules of law, provided that the person concerned had the opportunity to bring the matter before a court having jurisdiction in particular in criminal matters;
(d) a court having jurisdiction in particular in criminal matters, where the decision has been rendered with respect 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 as part of a decision;
(b) compensation to victims, imposed under the same decision, the victim may not be a civil party to the action and the jurisdiction acting in the exercise of his or her 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 public fund or to a victim support organization imposed in the same decision;
7° Confiscation: confiscation within the meaning of articles 42, 43, 43 bis, paragraphs 1er and 2, 43ter in 43quater of the Criminal Code and forfeitures provided for in the Criminal Code and special laws;
8° Confiscation decision: any final judicial decision resulting in the permanent deprivation of property. »
Art. 5. In section 3 of the Act, the following amendments are made:
1° in § 1erthe words "a certified true copy of" are inserted between the words "by this Act" and "the decision";
2° in § 1er, the words "annex" are replaced by the words "in the annexes";
3° § 1er is completed as follows:
"The original of the decision and/or the original of the certificate shall be sent to the enforcement authority upon request. »;
4° in § 3, paragraphs 2 and 3 are repealed;
5° Article 3 is supplemented by a § 4 written as follows:
Ҥ4. The certificate must be sent to the procurator of the territorially competent King.
When the King's prosecutor who receives a decision is not territorially competent to follow up on it in accordance with the provisions of this Act, he shall forward the decision to the territorially competent Crown prosecutor and shall promptly inform the issuing authority by any means leaving a written record. »
Art. 6. In section 4 of the Act, the following amendments are made:
1° § 1er is replaced by the following:
« § 1er. When deciding on the execution of the transmitted decision, the Belgian authorities recognize the decision transmitted without any other formality being required, and take without delay all necessary measures for its execution, subject to the application of any of the causes of refusal provided for in this Act."
2° in § 2, paragraph 2, of which the present text will form § 3, the words " provided that these rules do not reduce fundamental rights and do not infringe any other fundamental principle of Belgian law" are replaced by " provided that these rules do not infringe on fundamental rights or any other fundamental principle of Belgian law";
3° the article is supplemented by a § 4 written as follows:
“§4. The substantial reasons that led to the ruling of the foreign decision transmitted to Belgium cannot be contested before a Belgian court. »;
4° the article is supplemented by a § 5 written as follows:
“§ 5. Any official communication is made directly between the competent authorities. »
Art. 7. In section 5 of the Act, the following amendments are made:
1° § 1er is replaced by the following:
« § 1er. The competent judicial authorities shall promptly inform the Federal Public Service Justice:
1° when they refuse to execute a decision on confiscation or seizure. In this case, the competent judicial authorities shall ensure that the reason and the copy of this decision is transmitted;
2° when they refuse to execute a decision on a monetary penalty on the basis of Article 7, § 1, 3°. »;
2° in § 2, the words "competent judicial authorities" are replaced by the words "competent authorities";
3° in § 2, the words "of a judicial decision issued by a Belgian judicial authority" are replaced by the words "of a decision issued by a Belgian authority".
Art. 8. In section 6 of the Act, the following amendments are made:
(a) a paragraph 2/1 is inserted as follows:
“§ 2/1. In the case of a decision imposing a monetary penalty, the condition referred to in § 2 relating to maximum deprivation of liberty does not apply and the following offences are added to the list provided for in § 2:
1° conduct contrary to the standards that regulate road traffic, including offences relating to driving and rest periods and provisions relating to the transport of dangerous goods;
2° smuggling of goods;
3° infringement of intellectual property rights;
4th threats and acts of violence against persons, including during sporting events;
5° criminal vandalism;
6° vol;
7° offences established by the issuing State and covered by the enforcement obligations arising from the instruments adopted in accordance with the EC Treaty or under title VI of the EU Treaty."
(b) in § 3, the word "judicial" is replaced by the words " seizure or confiscation".
Art. 9. In section 7 of the Act, the following amendments are made:
1° in § 1er, 2°, the words "non bis in idem" are replaced by "ne bis in idem";
2° in § 2, paragraph 1er, the word "judicial" is repealed.
Art. 10. In chapter III of the Act, a new section 7/1 is inserted as follows:
"Art. 7/1. except for seizure decisions, enforcement may also be refused in the following cases:
1° where the penalty or enforcement of the monetary penalty is prescribed under Belgian law and the facts fall within the jurisdiction of Belgian courts;
2° if the decision concerns acts that, according to Belgian law, have been committed in whole or in part in Belgian territory or in a place considered to be such, or that have been committed outside the territory of the State of issue and that Belgian legislation does not authorize the prosecution for the same offences committed outside Belgian territory.
As part of the enforcement of a confiscation decision, 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 defined in the national legislation of the issuing State:
(i) in a timely manner,
- has been cited to anyone and has been informed of the date and place set for the trial that led to the decision, or has been formally and effectively informed by other means of the date and place set for the trial, so that it has been unequivocally established that it has been informed of the trial scheduled;
and
- was informed that a decision could be made in case of non-compartment;
or
(ii) having been informed of the scheduled trial, gave a warrant to a legal council, which was designated either by the person concerned or by the State, to defend him at trial, and was effectively defended by that council during the trial;
or
(iii) after being served on the decision and having been expressly informed of its right to a new judgment procedure or appeal procedure, to which the person concerned has the right to participate and which allows the case to be reviewed on the merits, taking into account the new evidence, and may result in a failure of the original decision:
- expressly stated that it did not contest the decision;
or
- did not request a new trial or appeal procedure within the time limit. »
Art. 11. In chapter IV of the Act, section 8 is repealed.
Art. 12. Section 9 of the Act is repealed.
Art. 13. In the Dutch text of article 14, § 3, of the same law, the words "onverwijld de bevoegde rechterlijke autoriteit in de beslissingsstaat" are replaced by the words " de bevoegde rechterlijke autoriteit in de beslissstaat onverwijld".
Art. 14. In section 15 of the Act, the following amendments are made:
1° in the Dutch text of § 1er, the word "Enig" is replaced by the word "Elke";
2° in § 3, the words "under warranty" are replaced by the words "with the payment of a sum of money".
Art. 15. In article 17, paragraph 1er, in the same law, the words "forfeiture or" are repealed.
Art. 16. In section 18 of the Act, the following amendments are made:
1° in § 1erthe words "in accordance with Article 3" are replaced by the words "in accordance with the terms set out in Article 3";
2° in § 1erthe word "judicial" is repealed;
3° in § 2, the words "The decision of seizure transmitted in accordance with Article 3" are replaced by the words "This decision";
4° in the Dutch text of § 3, the word "intrekking" is replaced by the word "opheffing";
5° in § 3, the word "judicial" is repealed.
Art. 17. In the same law, a chapter V is inserted entitled "Security Penalties".
Art. 18. In Chapter V inserted by Article 17, a section 1 is inserted entitled "Causes of refusal specific to monetary penalty".
Art. 19. In section 1st, inserted by section 18, an article 19 is inserted as follows:
“Art. 19. § 1er. The enforcement of the monetary penalty is also denied when the decision was rendered with respect to a natural person who, under Belgian law, could not, because of his age, be criminally responsible for the facts because of which the decision was rendered.
§ 2. Enforcement of the monetary penalty may also be denied 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, has not been informed, in accordance with the legislation of the issuing State, personally or through a competent representative under that legislation, of his or her right to appeal and of 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 indicates that the person concerned, after having been expressly informed of the proceedings and the possibility of appearing in person, expressly waived his right to oral proceedings and expressly indicated that he did not contest the case;
3° if the amount of the monetary penalty is less than 70 euros or an equivalent amount. »
Art. 20. In chapter V, section 2, of the same law, inserted by the Y law 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 (I), an article 22 is inserted as follows:
“Art. 22. § 1er. When ordering the enforcement of the decision, the King's Prosecutor shall, if necessary, convert the amount of the penalty to the euro at the exchange rate in force at the time the penalty was pronounced.
§ 2. When it is established that the decision deals with facts that have not been committed in the territory of the issuing State, the King's Prosecutor may decide to reduce the amount of the penalty to the maximum amount provided for similar acts under Belgian law, where the facts fall within the jurisdiction of Belgium. »
Art. 21. In the same section 2, an article 23 is inserted as follows:
“Art. 23. § 1er. The sums of money obtained as a result of the execution of decisions shall return to the Belgian State unless otherwise agreed with the issuing State, particularly in the cases referred to in article 2/1, 6°, b).
§ 2. Where it is not possible to execute a decision, in whole or in part, the correctional court may decide, upon request of the King's Prosecutor, the application of alternative penalties in cases where Belgian law provides for them and if the issuing State has authorized the application of such substitution penalties in the certificate referred to in Article 3. The severity of these alternatives is determined in accordance with Belgian law, without being able to exceed the maximum penalty specified in the certificate. »
Art. 22. In the same section 2, an article 24 is inserted as follows:
“Art. 24. The King's Prosecutor shall promptly notify the competent authority of the issuing State by any means leaving a written record. The notification of the decision not to recognize the monetary penalty reflects the reason for this decision.
The King's prosecutor acts the same after the completion of the enforcement of the decision and in the case of the application of alternative penalties. »
Art. 23. In Chapter V, inserted by Article 17, it is inserted a section 3 entitled "Decision Extinguishing Modes".
Art. 24. In section 3, inserted by section 23, an article 25 is inserted as follows:
“Art. 25. Amnesty and grace can be granted by Belgium. In this case, the King's prosecutor will promptly inform the issuing State by any means leaving a written record. "
Art. 25. In the same section 3, an article 26 is inserted as follows:
“Art. 26. It is terminated the execution of the decision as soon as the King's prosecutor is informed by the competent authority of the issuing State of any decision or measure that has the effect of withdrawing its enforceability or subtracting it from Belgium for any other reason. "
Art. 26. In chapter V, inserted by article 17, it is inserted a section 4 entitled "Emission of a decision by a Belgian authority".
Art. 27. In section 4, inserted by section 26, an article 27 is inserted as follows:
“Art. 27. § 1er. Any decision issued by a Belgian authority shall be forwarded to the authority of the territorially competent State of execution for its execution, in accordance with the terms provided for in Article 3.
§ 2. The decision can only be transmitted to one State of enforcement at a time.
The Implementing State is the Member State in which the natural or legal person against whom the decision has been pronounced has property or income, has its habitual residence or statutory seat, if it is a legal person.
§ 3. Subject to the following paragraph, the Belgian authority shall no longer execute a decision which has been transmitted in accordance with this article.
The Belgian authority, however, reiterates its right to execute the decision:
(a) if the enforcement State informs of the total or partial non-performance or non-recognition of the decision except where the decision to refuse recognition or enforcement is based on Article 7, § 1er2° or 3° or on Article 25;
(b) having informed the competent authority of the enforcement State of any decision or measure that has the effect of withdrawing its enforceability or subtracting it from the enforcement State for any other reason. This information is transmitted immediately to the competent authority of the enforcement State.
§ 4. If, after having passed a decision in accordance with the terms set out in Article 3, an authority of the issuing State shall receive a sum of money that the convicted person has paid voluntarily under the decision, that authority shall promptly inform the competent authority of the enforcement State. Article 21, § 3 is applicable. »
Art. 28. In the same law, a chapter VI entitled "Forfeiture" is inserted.
Art. 29. In Chapter VI, inserted by Article 28, an article 28 is inserted which reads as follows:
“Art. 28. To the extent of its competence, the Central Organ for Seizure and Confiscation shall assist, at their request, the competent authorities for the execution of this Act. "
Art. 30. In the same chapter VI, a section 1 is inserted entitled "Causes of refusal specific to confiscation".
Art. 31. In section 1st, inserted by section 30, an article 29 is inserted as follows:
“Art. 29. Execution of confiscation may also be refused in the following cases:
1° the rights of any interested party, including third parties in good faith, make it impossible to execute the decision;
2° the decision to forfeit, in the opinion of the judicial enforcement authority, was rendered under an expanded confiscation authority that goes beyond the possibility provided for in section 43quater of the Criminal Code. However, the confiscation decision is enforced within the limits authorized by Belgian law. "
Art. 32. In chapter VI, section 2, of the same law, inserted by the Y law 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 (I), an article 32 is inserted as follows:
“Art. 32. § 1er. The King's Prosecutor shall promptly inform the competent authority of the issuing State of the postponement of the execution by specifying the reason and, if possible, the probable duration.
In the case referred to in Article 31, § 1er, 1°, the information shall be communicated immediately to the competent authority of the issuing State.
§ 2. As soon as the reason for the postponement ceases to exist, the necessary measures to enforce the confiscation decision are taken. The King's Prosecutor shall promptly inform the competent authority of the issuing State.
§ 3. The King's Prosecutor shall promptly inform the competent authority of the issuing State in the event of a practical impossibility of executing the confiscation, either because the property to be confiscated has disappeared, has been destroyed, cannot be found at the place specified in the certificate or because the place where the property is located has not been indicated sufficiently precisely, even after consultation with the issuing State.
§ 4. For the purposes of this provision, the information provided by the King's Prosecutor must be made by any means to leave a written record. "
Art. 33. In the same section 2, an article 33 is inserted as follows:
“Art. 33. § 1er. When the person concerned is in a position to provide proof of confiscation, total or partial, in another State, the Crown Prosecutor shall consult the issuing authority by any appropriate means.
§ 2. Any portion of the amount recovered in another State shall be deducted in full from the amount to be confiscated. "
Art. 34. In the same section 2, an article 35 is inserted as follows:
“Art. 35. § 1er. The decision of the court shall be communicated without delay by the Crown Prosecutor to the competent authority of the issuing State by any means leaving a written record. The communication of the decision not to execute in whole or in part the decision to forfeiture takes the motivation of this decision.
§ 2. The King's prosecutor acts the same after the completion of the execution of the decision. "
Art. 35. In the same section 2, an article 36 is inserted as follows:
“Art. 36. The Crown Prosecutor shall terminate the execution of the decision of confiscation as soon as he is informed by the competent authority of the State of issue of any decision or measure having the effect of withdrawing to the decision its enforceable character or subtracting the decision to the enforcement State for any other reason. "
Art. 36. In the same section 2, an article 37 is inserted as follows:
“Art. 37. Amnesty and grace can be granted by Belgium. In this case, the King's Prosecutor shall promptly inform the issuing State by any means leaving a written record. "
Art. 37. In chapter VI, inserted by article 28, a section 4 entitled "Transmission of a decision to forfeit a Belgian authority".
Art. 38. In section 4, inserted by section 37, an article 39 is inserted as follows:
“Art. 39. § 1er. Any decision to condemn a forfeiture shall be forwarded to the competent authority of the territorially competent enforcement State for its execution, as provided for in Article 3.
§ 2. The decision is forwarded:
1° if the confiscation relates to a sum of money, to the State in which the King's Prosecutor is founded to believe that the natural or legal person against whom the decision was rendered has property or income;
2° if the confiscation relates to a specified property or property, to the State or to the States in which the King's Prosecutor is founded to believe that the property concerned is located;
3° in default, to the State in which the natural or legal person against whom the decision was rendered has his habitual residence or his statutory seat, if it is a legal person.
§ 3. The confiscation decision on a property may only be transmitted to a single State of enforcement at a time, except in the following cases:
1° the King's prosecutor is founded to believe that different property covered by the confiscation decision is found in different enforcement states;
2° the confiscation of a specific property covered by the confiscation decision implies to act in several enforcement states;
3° the King's prosecutor is founded to believe that a specific property covered by the confiscation decision is found in one of the two enforcement states or more indicated.
§ 4. The confiscation decision on a sum of money can only be forwarded to a single enforcement state at a time, unless the King's prosecutor considers it necessary to do so for a particular reason, in particular when:
- the property concerned has not been subject to a seizure decision under this Act, or
- the value of the property confiscated in Belgium or any State of execution may not be sufficient to carry out the total amount referred to in the confiscation decision.
§ 5. The transfer of a confiscation decision to one or more enforcement states does not limit the right of the Belgian authorities to enforce the confiscation themselves. "
Art. 39. In the same section 4, an article 40 is inserted as follows:
“Art. 40. § 1er. When a confiscation decision on a sum of money is forwarded to one or more Implementing states, the King's Prosecutor shall ensure that the total value derived from its application is not greater than the maximum amount specified in the confiscation decision.
§ 2. The King's Prosecutor shall immediately inform the competent authority of any State of execution concerned, by any means allowing for a written record, if:
1° it considers that there is a risk that execution is carried out on an amount greater than the maximum amount to be confiscated, particularly on the basis of information that would have been communicated to it by one of the states of execution. Where applicable, it shall inform as soon as possible that the risk no longer exists;
2° all or part of the confiscation decision was executed in Belgium or in another state of execution. In this case, the King's Prosecutor specifies the amount that has not yet been recovered under the confiscation decision;
3° a sum of money was paid voluntarily in Belgium for the confiscation decision, after the transfer of the application for execution of this decision.
§ 3. The Crown Prosecutor shall immediately inform the competent authority of the enforcement State, by any means leaving a written record, of any decision or measure that has the effect of withdrawing to the decision of confiscation its enforceable character or subtracting the decision to the enforcement State for any other reason. "
Art. 40. In the same Act, the title of the Schedule, which will form Appendix 1, is supplemented by the words ", for the freezing of assets".
Art. 41. In the same Act, an annex 2 and an annex 3 are included in annexes 1re and 2 to this Act.
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 Ciergnon, November 26, 2011.
ALBERT
By the King:
Minister of Justice,
S. DE CLERCK
Seal of the state seal:
Minister of Justice,
S. DE CLERCK
____
Note
(1) 2010-2011 session.
House of Representatives
Documents. B 53-1703
No. 1: Bill
Number 2: Report made on behalf of the Commission
Documents B 53-1833
N° 1: Text adopted in plenary and transmitted to the Senate
Senate
Document. B 5-1279
No. 1: Project not referred to by the Senate.

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