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13 AOUT 2011. - An Act to amend the Code of Criminal Investigation and the Act of 20 July 1990 relating to pretrial detention in order to confer rights, including the right to consult a lawyer and to be assisted by him, any person being examined and any person deprived of liberty (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - General provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER 2. - Amendments to the Code of Criminal Investigation
Art. 2. In section 47bis of the Code of Criminal Investigation, inserted by the Act of 12 March 1998, the following amendments are made:
1° The opening sentence and item 1. are replaced by the following:
« § 1^er. At the hearing of persons, heard in any capacity, the following rules must be respected at least:
1. At the beginning of any hearing, the interviewee is briefed on the facts on which she will be heard and is communicated to her:
(a) that it may request that all questions raised to it and the answers it gives be reflected in the terms used;
(b) it may request that a specific act of information or hearing be conducted;
(c) that statements may be used as evidence in court;
(d) that she cannot be compelled to accuse herself.
All these elements are accurately recorded in the transcript. »;
2° The article is supplemented by §§ 2 to 7 as follows:
“§2. Without prejudice to § 1^er, before the hearing of a person on offences that may be charged to him, the person to question shall be briefed on the facts on which he or she will be heard and shall be communicated to him or her:
1° that she cannot be compelled to accuse herself;
2° that she has the choice, after she has declined her identity, to make a statement, to answer the questions asked or to silence;
3° that she has the right, before the first hearing, to consult confidentially with a lawyer of her choice or with a lawyer who is appointed to her, as long as the facts that may be charged to her relate to an offence whose penalty may result in the issuance of an arrest warrant, with the exception of the offences referred to in Article 138, 6°, 6°bis and 6°ter.
If the person to question has insufficient resources, sections 508/13 to 508/18 of the Judicial Code relating to the benefit of the complete or partial free of second-line legal aid are fully applicable.
Only the person in question may voluntarily and in a thoughtful manner waive the right referred to in paragraph 1^erThree. It must make the renunciation in writing, in a document dated and signed by it.
If the first hearing takes place on written summons, the rights set out in paragraph 1^er, 1°, 2° and 3°, as well as the brief communication of the facts on which the person to question will be heard, may already be notified in this summons, which is attached as a copy to the minutes of hearing. In such cases, the person concerned is presumed to have consulted a lawyer prior to the hearing.
If the hearing does not take place on summons or if the summons does not mention the elements in paragraph 4, the hearing may be postponed once at the request of the person to question, in order to give him the opportunity to consult a lawyer.
All of these elements are accurately recorded in a report.
§ 3. Without prejudice to §§ 1^er and 2, paragraph 1^er, 1° and 2°, any person deprived of his or her liberty in accordance with Articles 1^er, 2, 3, 15 bis and 16 of the Act of 20 July 1990 on preventive detention is informed that it enjoys the rights set out in articles 2bis, 15bis and 16 of the Act.
§ 4. A written statement of rights under §§ 2 and 3 shall be given to the person referred to in §§ 2 and 3 before the first hearing.
The form and contents of this declaration of rights are fixed by the King.
§ 5. If, in the course of the hearing of a person who was not initially considered a suspect, it turns out that some evidence suggests that the facts may be charged to him, that person is informed of the rights enjoyed by him under § 2 and, if applicable, of § 3, and the written statement referred to in § 4 is given to him.
§ 6. No conviction may be pronounced against a person on the sole basis of statements made in violation of §§ 2, 3 and 5, excluding § 4, with respect to the prior confidential consultation or assistance of a lawyer during the hearing.
§ 7. Without prejudice to the rights of defence, the lawyer is obliged to keep secret the information he acquires knowledge by providing his assistance during the hearings in accordance with articles 2bis, § 2, and 16 § 2, of the Act of 20 July 1990 on preventive detention. Whoever violates this secret is punished by the penalties provided for in Article 458 of the Criminal Code. »
Art. 3. Article 62 of the same Code is supplemented by two paragraphs:
"When the raid on the scene is organized for the re-establishment of the facts, the investigating judge is also accompanied by the suspect, the civil party and their lawyers.
Without prejudice to the rights of defence, the lawyer is obliged to keep secret the information he acquires knowledge by attending the descent on the organized premises for the reconstruction of the facts. Whoever violates this secret is punished by the penalties provided for in Article 458 of the Criminal Code. »
CHAPTER 3. - Amendments to the Act of 20 July 1990 on preventive detention
Art. 4. Title I^erChapter I^er, of the Act of 20 July 1990 on preventive detention, is supplemented by article 2bis as follows:
"Art. 2bis. § 1^er. Anyone deprived of his or her liberty in accordance with articles 1^er or 2, or pursuant to a warrant to bring a person referred to in Article 3, is entitled, at that time and in advance of the first interrogation by the police or, failing that, by the King's attorney or the investigating judge, to consult confidentially with a lawyer of his choice. If he has not chosen a lawyer or if he is prevented, contact is taken with the permanence organized by the Order of French-speaking and German-speaking Bars, and the "Orde van Vlaamse balies" or, if not, by the Order's sticker or his delegate.
If the person to question does not have sufficient resources, sections 508/13 to 508/18 of the Judicial Code relating to the benefit of the complete or partial gratuity of the second line legal aid are fully applicable.
From the moment when contact is taken with the chosen lawyer or the permanence, confidential consultation with the lawyer must take place within two hours. At the end of the confidential consultation, for a maximum of thirty minutes, the hearing may begin.
If the scheduled confidential consultation did not take place within two hours, a confidential telephone consultation still takes place with the permanence, after which the hearing can begin.
It is only after having had a confidential telephone contact with the permanence that the person in question may, after deprivation of liberty, voluntarily and responsibly waive the right to confidential consultation with a lawyer. The person to be questioned shall make a written waiver in a document dated and signed by the person. Minors cannot give up this right.
All of these elements are accurately recorded in a report.
§ 2. The person concerned has the right to be assisted by his or her lawyer at hearings that take place within the time limit referred to in Articles 1^er, 1°, 2, 12 or 15bis.
The lawyer may attend the hearing, which may have already started in accordance with § 1^erparagraphs 3 and 4.
The sole purpose of the assistance of the lawyer is to allow control:
1° respect for the right of the person questioned not to accuse himself, as well as his freedom to choose to make a statement, to answer the questions asked or to silence;
2° the treatment reserved for the person interviewed during the hearing, in particular the manifest exercise of illicit pressures or constraints;
3° of the notification of the rights of the defence referred to in Article 47bis of the Code of Criminal Investigation and the regularity of the hearing.
The lawyer may, without delay, mention in the hearing record the violations of the rights referred to in paragraph 3, 1°, 2° and 3°, which he considers to have observed.
The hearing shall be interrupted for a maximum of fifteen minutes for further confidential consultation, i.e. once at the request of the person interrogated himself or at the request of his lawyer, or in the event of the disclosure of new offences that are not in relation to the facts that have been brought to his or her knowledge in accordance with Article 47bis, § 2, paragraph 1^erCriminal Code.
Only the person who is a major interrogated may voluntarily and in a thoughtful manner waive the assistance of a lawyer during the hearing. This is mentioned in the document referred to in § 1^er, paragraph 5, or in the transcript.
§ 3. Anyone deprived of his or her liberty in accordance with articles 1^er, 2 or 3 is entitled to a person of trust be informed of his or her arrest by the person who questions or a person designated by him or her by the most appropriate means of communication.
If there are serious reasons, because of the communication of this information, to fear that there is an attempt to eliminate the evidence, that there is a collusion between the person concerned and third parties, or that the person is subtracted from the action of the justice, the Crown Prosecutor or the investigating judge in charge of the case may, by reasoned decision, defer such communication for the duration necessary to protect the case.
§ 4. Anyone deprived of his or her liberty in accordance with articles 1^er, 2 or 3 is entitled to medical assistance.
Without prejudice to the right under paragraph 1^er, that person has a subsidiary right to request a medical examination of his or her choice. The cost of this review is at its expense.
§ 5. In the light of the particular circumstances of the case, and as long as there are compelling reasons, the Crown Prosecutor or the examining magistrate may, exceptionally, by a reasoned decision, waive the rights provided for in §§ 1^er and 2. »
Art. 5. In the same law, it is inserted in title I^era chapter II/1 entitled:
"From the extension order."
Art. 6. In Chapter II/1, inserted by Article 5, an article 15bis is inserted as follows:
"Art. 15bis. Acting on the requisition of the King's Prosecutor or acting on his or her behalf, the examining magistrate may make an order to extend the period referred to in section 1^er, 1°, or Article 2.
The deprivation of liberty resulting from this order cannot, in any case, exceed twenty-four hours, from the meaning of the order.
The order is motivated and can only be taken once. It mentions the elements that justify the opening of a new deadline:
(1) the serious evidence of guilt in respect of a crime or offence;
2° the particular circumstances of the species.
It is served to the data subject within 24 hours. This one begins to run at the time determined by Article 1^er, 2° or 3°, or by article 2, 5°. If there is no regular service within the statutory time limit, the person is released.
The extension order is communicated immediately to the King's Prosecutor. It is not subject to appeal.
During the new 24-hour period, the person has the right to engage confidentially, for thirty minutes, with his or her lawyer. »
Art. 7. In section 16 of the Act, as amended by the Acts of 23 January and 10 April 2003, 31 May 2005 and 20 July 2006, the following amendments are made:
1° In § 2, three paragraphs are inserted between subparagraphs 1^er and 2:
"The accused has the right to be assisted by his lawyer during the interrogation. Only the major instillor can voluntarily and responsibly renounce this right. The investigating judge refers to this waiver in the transcript.
Counsel may make observations in accordance with Article 2bis, § 2, paragraph 4.
The investigating judge shall inform the lawyer in time of the place and time of the interrogation, to which he may attend. Interrogation may begin at the scheduled time, even if the lawyer is not yet present. On arrival, the lawyer joins the hearing. »;
2° In § 2, paragraph 2 of paragraph 5, the first sentence is replaced by the following sentence:
"The investigating judge must also inform the accused of the possibility that an arrest warrant is issued against him, and hear him in his comments on this matter and, if so, in his lawyer's comments. »;
3° § 4 is replaced by the following:
“§4. If the accused does not yet have a lawyer, the investigating judge reminds him that he has the right to choose a lawyer and informs the College's staff member or his delegate. These formalities are referred to in the transcript. »
Art. 8. In Article 18 of the Act, § 1^erParagraph 1^er, is replaced by the following:
« § 1^er. The arrest warrant is served on the accused within 24 hours. This one begins to run either at the time determined by Article 1^er, 2° or 3°, or by section 2, 5°, i.e., where the warrant of arrest is awarded to an inmate on the basis of a warrant to bring or on the basis of an extension order, at the time of the service of that warrant or order. »
Art. 9. In Article 20 of the same Law, § 1^er, as amended by the Act of 12 January 2005, is replaced by the following:
« § 1^er. Without prejudice to the provisions of articles 2bis, 15bis and 16, the accused may communicate freely with his lawyer immediately after his first hearing by the investigating judge. »
CHAPTER 4. - Entry into force
Art. 10. The King shall determine the effective date of this Act or certain of its provisions.
This Act comes into force no later than 1^er January 2012.
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 Nice, 13 August 2011.
ALBERT
By the King:
Minister of Justice,
S. DE CLERCK
Seal of the state seal:
Minister of Justice,
S. DE CLERCK
____
Note
(1) Regular session 2010-2011.
Senate.
Documents. - Proposal by Ms. Defraigne, Mr. Delpéré, Ms. Faes and Taelman, Mr. Torfs and Ms. Turan, 5-663 - No. 1. - Amendments, 5-663 - N^bones 2 and 3. - Report, 5-663 - No. 4. - Text adopted by the commission, 5-663 - No. 5. - Amendments, 5-663 - No. 6. Text adopted in plenary and transmitted to the House of Representatives, 5-663 - No. 7.
See also:
Annales. - 3 March 2011.
House of Representatives.
Documents. - Project transmitted by the Senate, 53 1279/001. - Opinion of the Council of State, 53 1279/002. - Amendments, 53 1279/003 and 004. - Report, 53 1279/005. - Text adopted by the Commission, 53 1279/006. Amendments, 53 1279/007 and 008. - Text amended by the House of Representatives and referred to the Senate, 53 1279/009.
See also:
Full report. - 15-16 July 2011.
Senate
Documents. - Project amended by the House of Representatives and referred to the Senate, 5-663 - No. 8. - Amendments, 5-663 - No. 9. - Report, 5-663 - No. 10. - Text adopted by the commission, 5-663 - No. 11. - Text amended by the Senate and referred to the House of Representatives, 5-663 - No. 12.
See also:
Annales. - 7 July 2011.
House of Representatives.
Documents. - Project revived by the Senate, 53 1279/010. - Amendments, 53 1279/011. - Report, 53 1279/012. - Text adopted by the Commission, 53 1279/013. - Text adopted in plenary and subject to Royal Assent, 53 1279/014.
See also:
Full report. - 19 and 20 July 2011.