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31 JULY 2009. - Act respecting various provisions concerning Central Judicial Officer (1)

Opinion of the Council of State No. 45.929/2 of 2 March 2009
The Conseil d'Etat, section de législation, deuxième chambre, saisi par le Ministre de la Justice, le 2 février 2009, d'une demande d'avis, dans un délai de trente jours, sur un avant-projet de loi " relatif aux excerpts de casier judiciaire délivrés aux particuliers et modifié certaines dispositions du Code d'instruction pénale relatives au Casier judiciaire central", a donné l'avis suivantes :
As the application for notice is filed on the basis of Article 84, § 1^erParagraph 1^er, 1°, coordinated laws on the Council of State, as replaced by the law of 2 April 2003, the section of legislation limits its consideration to the legal basis of the preliminary draft, to the competence of the author of the act and to the completion of the formalities, in accordance with Article 84, § 3, of the coordinated laws mentioned above.
On these three points, the preliminary draft calls for the following observations.
Title
The title does not correspond sufficiently to the subject-matter of the preliminary draft, which, with the exception of the transitional provisions, contains no autonomous provision and not only amends the Code of Criminal Investigation but also the Act of 8 August 1997 on the Central Judicial Record and the Act of 20 July 1990 on pretrial detention (1).
From the agreement of the delegated official, the title will be adapted accordingly.
Device
Article 2
1. There is a contradiction between the French version of the commentary to paragraph 1^er, 17°, in project, which explains that the latter determines the conditions of mention on the different extracts of convictions by simple conviction and the text in draft that determines nothing such.
From the agreement of the delegated official, the comment will be adapted accordingly.
Whereas the preliminary draft provides to add to the list of information recorded in the criminal record the mention of convictions by simple conviction under section 21ter of the Act of 17 April 1878 containing the preliminary title of the Code of Criminal Procedure, there is no reason to exclude persons so convicted of the benefit of the effects produced by the deletion, which applies to convictions of rehabilitation These effects are listed in Article 634 of the Code of Criminal Investigation. Indeed, it is not sufficient that the information of the conviction by simple conviction may no longer be mentioned after three years on the extracts of criminal record requested by the public administrations (article 594 of the Code of Criminal Investigation, in draft) or by the individual himself (article 595 of the Code of Criminal Investigation, in draft); It is, as is already the case for convicts of sentencing, that all the effects of the conviction be stopped for the future, in particular to prevent the mention of the conviction in the extracts of the criminal record produced by the judicial authorities in the event of further prosecution for new offences. The author of the project will therefore ensure that either Article 619 of the Code of Criminal Investigation or Article 620 of the Code of Criminal Investigation is supplemented by the choice of one or the other. On this occasion, it would be desirable to check also whether the removal or rehabilitation procedure should not be able to apply to certain decisions or measures that are excluded today.
2. This is the result of paragraph 1^er18°, in draft only the prohibitions referred to in Article 35, § 1^er, paragraph 2, in draft of the Act of 20 July 1990 on pre-trial detention, i.e., prohibitions of activity involving persons in contact with minors, will only be mentioned in the central judicial record (hereinafter referred to as "judicial record") when they relate to persons who do not have a residence or domicile in Belgium". Indeed, as explained in the commentary to the article, in this case, the persons concerned must address the judicial record of the Ministry of Justice in order to obtain their extract from a criminal record. When the person concerned has a domicile or residence in Belgium, he shall address the municipal administration of the place of that domicile or residence. This, in order to obtain information relating to a possible prohibition under Article 35, § 1^er, paragraph 2, in the above-mentioned project, is addressed to the local police service, in accordance with Article 596, paragraph 2, in draft of the Code of Criminal Investigation. This service shall have the information, provided that section 37 in draft of the Act of 20 July 1990 referred to above (article 9 of the preliminary draft) provides that the decisions made under section 35, § 1^er, paragraph 2, as well as decisions for withdrawal, modification or extension of such decisions, shall be forwarded to the police service of the municipality where the person has his domicile or residence.
The State Council wonders why not simplify the situation by registering in the criminal record all the prohibitions referred to in Article 35, § 1^er, paragraph 2, in the project, on the understanding that only mentions the extracts requested to access an activity that falls under the education, psycho-medical-social guidance, youth assistance, child protection, animation or supervision of minors (extracts known as "model 2").
According to the delegated official,
"It is true that the situation would be easier if the information was transmitted directly to the Central Judicial Officer. However, it is necessary to take into account the transitional period during which municipalities will not have access to data from the Central Judicial Officer (cf. Article 10). During this period, municipal authorities must be informed of these decisions."
Such a mechanism should, then, find place in the transitional provisions of the draft.
Furthermore, it is the result of the mechanism established that only the local police in the place where the person concerned has his home or residence at the time of the ban will be informed. It would therefore be imperative to ensure that there is a procedure for tracking information if the person concerned changes domicile or residence.
Article 3
At 3°, the term "service" is not suitable for all listed authorities.
It would be better to adapt the text accordingly.
Article 4
1. Section 594, paragraph 2, of the Code of Criminal Investigation was not amended by the Acts of 17 April 2002 and 15 May 2006. The opening sentence will be adapted accordingly.
2. The 2° must become the 1° and the 1° must become the 2°.
3. At 2°, which becomes 1°, it is necessary to write:
"1° the words "to convictions by simple convictions, to convictions" are inserted between the words "to imprisonment for up to six months," and the words "to fine sentences not exceeding 500 francs." »
4. As amended by the draft, section 594, paragraph 2, will cover convictions for certain imprisonment or fines and convictions by simple conviction. Isn't it necessary to add also the sentences to a working sentence?
The same observation applies to section 595, paragraph 2, in draft.
Article 5
1. Section 595, paragraph 2, of the Code of Criminal Investigation was not amended by the laws of 17 April 2002 and 15 May 2006. The opening sentence will be adapted accordingly.
2. The 2° must become the 1° and the 1° must become the 2°.
3. At 2°, which becomes 1°, it is necessary to write:
"1° the words "sentences by simple conviction, convictions" are inserted between the words "to imprisonment for up to six months," and the words "to fine sentences not exceeding 500 francs." »
Article 6
1. The draft text lacks clarity.
As drafted, it could suggest that an extract from the criminal record requested to access an activity that falls within the scope of education, psycho-medical-social guidance, youth assistance, child protection, animation or supervision of minors (extracted as "model 2") mentions only the convictions and certain decisions (the offences referred to in section 590, 2 In this way, the "model 2" judicial record extract would contain less information than the ordinary criminal record extract (called "model 1"), which, in accordance with section 595 of the Code of Criminal Investigation, includes the record of all information recorded in the criminal record subject to certain exceptions (see infra, point 2). This was obviously not the will of the author of the draft.
In fact, section 595 of the Code of Criminal Investigation refers to references that must be included in all extracts of the criminal record. Section 596 of the same Code deals with additional references that must be included in the extracts requested to access an activity whose access or exercise conditions have been defined by legal or regulatory provisions (Article 596, paragraph 1^er) either in the extracts requested to access an activity that falls within the scope of education, psycho-social guidance, youth assistance, child protection, animation or supervision of minors (Article 596, paragraph 2).
The draft will be adapted to make the author's intention clearly appear.
2. Where paragraph 2 in draft article states that the excerpt mentions "all convictions and decisions referred to in section 590, 2°, 4°, 5°, 16° and 17°", then it must be understood that the word "all" is an extension in relation to the extract referred to in section 595, which does not mention all convictions and decisions since it contains two series of exceptions:
(a) on the one hand, the three exceptions referred to in 595, paragraph 1^erthe convictions, decisions or measures listed in section 594, paragraph 1^er, 1° to 4°, measures taken with respect to abnormals by application of the law of 1^er July 1964 (2) and the due dates and measures listed in section 63 of the Act of 8 April 1965, referred to above;
(b) on the other hand, the exception referred to in section 595, paragraph 2, which provides that a number of convictions, including sentences of imprisonment not more than six months, are no longer mentioned after a period of three years from the date of the final judicial decision which pronounces it.
The extension, however, is limited since it applies only to convictions and decisions referred to in section 590, 2°, 4°, 5°, 16° and 17° and only to facts referred to in certain sections of the Penal Code when committed in respect of a minor and that this element is a constituent of the offence or aggravates the penalty.
The Council of State wonders whether the intention of the author of the draft was to mention in the extract of the criminal record "model 2", the decisions referred to in article 595, paragraph 1^er, 1°, i.e. the convictions that have been amnesty, the decisions cancelled by application of sections 416 to 442 or sections 443 to 447bis of the Code of Criminal Investigation and the decisions of withdrawal made pursuant to articles 10 to 14 of the special law of 6 January 1989 on the Constitutional Court. As the delegated official agreed, the answer is negative. The text of the draft will therefore be amended.
For the surplus, the extension will, it seems, result in the fact that the "model 2" certificate will contain, in the case of facts referred to in the sections mentioned in the Penal Code of a minor and that this element is a constituent of the offence or aggravates the penalty, two types of references not included in the "model 1" certificate, namely:
1° decisions made in respect of abnormals (3) by application of the law of 1^er July 1964 (4);
2° Convictions to a criminal, correctional or police sentence where the final judicial decision which imposes a prison sentence of not more than six months, a fine not exceeding 500 euros or a fine imposed pursuant to the laws coordinated by the Royal Decree of 16 March 1968 concerning the police of road traffic dates back to more than three years.
It is up to the author of the draft to find a more explicit drafting of paragraph 2, in draft.
3. From the agreement of the delegated official, for clarity, it is suggested to write: "... mentions the convictions referred to in 590, paragraph 1^er, 1° and 17°, and the decisions referred to in Article 590, paragraph 1^er, 2°, 4°, 5°, 16°". For the Dutch version of the proposed text, it is referred to the Dutch version of this notice.
4.1. The additional references provided for in section 596, paragraph 2, in draft only relate to the facts referred to in certain sections of the Criminal Code and provided that they meet a double condition:
(a) they are committed against a minor;
(b) the circumstance that the facts have been committed in respect of a minor is a constitutive of the offence or aggravates its sentence.
These conditions will necessarily result from the provision of the Criminal Code that defines the offence or a subsequent provision that provides for the aggravating circumstance. The words "when committed in respect of a minor and that this element is a constituent of the offence or aggravates its sentence" are therefore unnecessary. They are only one of the criteria that presided over the choice of offences listed in the draft. The explanation they tend to provide to this choice has its place only in the explanation of the reasons.
In the light of the foregoing, the author of the preliminary draft is invited to review the list of provisions referred to above, with a view to the following:
(a) define the offence where the commission of a minor is a constituent element of the offence;
(b) provide for the aggravating circumstance where the fact of having been committed against a minor is an element that aggravates the sentence;
(c) criminalize the attempt to commit the offence and provide for other aggravating circumstances (5) that may be applied when the offence was committed on a minor (e.g., section 376 of the Criminal Code which provides for a number of aggravating circumstances of the rape and the stench attack).
If necessary, only certain paragraphs or subparagraphs will be mentioned.
Finally, it is necessary to aim at article 396 of the Criminal Code relating to infanticide, since it is an offence that presupposes that it was committed "on a child at the time of birth or immediately after".
4.2. The preliminary draft aims at the offence of an offence of an offence of intrusion (articles 406 to 408 of the Criminal Code), for which, contrary to the other offences mentioned, the minority of the victim is neither a constituent element nor an aggravating circumstance.
Nothing prevents the author of the preliminary draft from foreseeing that the offence, when committed in respect of a minor, must be mentioned in the extract of a criminal record "model 2". However, this is a different assumption than that described in point 4.1. It must therefore be the subject of a specific provision which will expressly specify, since it does not result from sections 406 to 408 of the Criminal Code, that the mention of the offence in the extract of a criminal record "model 2" will only be made when it has been committed with respect to a minor.
It is up to the author of the preliminary draft to justify the choice of the offence (6).
The Council of State further questions whether the judgments permit sufficient determination if the facts on the basis of the conviction were committed against a minor; Otherwise, the projected system would be inapplicable.
5. Paragraph 2 states, inter alia, that the prohibition must be mentioned on the extract until the judgment that follows acquires the force of judgment.
It is self-evident, however, that the prohibition should no longer be mentioned if it is withdrawn and that the reference must be amended if the prohibition is amended or if it is subject to a judicial measure that has a similar effect (e.g., a non- lieu order of the board).
It also goes without saying that, if the judgment pronounces such a ban, it must also be mentioned.
The text should be reviewed accordingly.
6. The differences between the current text of Article 596 of the Code of Criminal Investigation and the draft text as to the provisions of the Criminal Code to which it is referred would gain to be explained in the commentary to the article.
Article 8
From the agreement of the delegated official, mention should be made of the amendments still in force under section 35, § 1^erthe Act of 20 July 1990, referred to above.
Articles 10 and 11
It follows from Article 589 of the Code of Criminal Investigation that extracts from the criminal record referred to in Articles 595 and 596, in draft, are necessarily extracts from the central criminal record. It is therefore contradictory to bring into force articles 595 and 596 of the Code of Criminal Investigation and to provide that extracts from the criminal record will only be issued on the basis of information contained in the central judicial record as of 31 December 2012. In addition, the draft does not specify on the basis of which information will be issued extracts before that date.
From the agreement of the delegated official, it is therefore necessary to show, in the text of the preliminary draft, that it is by derogation from the rule contained in the above-mentioned articles that the excerpts issued before December 31, 2012 will be made on the basis of the information contained in the communal criminal record.
Article 11
The Council of State does not see for what reason Article 11 applies only for the extracts referred to in Article 596, paragraph 2, of the Code of Criminal Investigation, whereas the suspensions of the pronouncement of the conviction and the mere convictions must also be mentioned in the extracts referred to in Article 595 of the Code of Criminal Investigation.
The room consisted of:
MM. :
Y. Kreins, room chair;
P. Vandernoot; Ms. M. Baguet, State Councillors;
M. H. Bosly, assesseur de la section de législation;
Mrs. A.-C. Van Geersdaele, Clerk.
The report was presented by Mr. A. Lefebvre, first listener.
XXXXXXXXX
The clerk,
A.-C. VAN GEERSDAELE.
The president,
Y. KREINS.
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Notes
(1) In order to introduce a provision whose scope exceeds the criminal record.
(2) It does not appear clearly which decisions apply to this provision in relation to the list of Article 590 of the Code of Criminal Investigation. In any event, it is found that section 595, paragraph 1^er, 2°, was not adapted, as was article 590, to the law of April 21, 2007 relating to the internment of persons with mental disorder (adaptation that has not yet come into force).
(3) No matter what, the seniority of the decision.
(4) See footnote No. 2.
(5) or mitigating circumstances, as in the case of section 430 of the Penal Code, which the preliminary draft should therefore aim.
(6) If the author of the draft is guided in this direction, the Council of State does not see why such serious offences would not be mentioned as murder or murder when they were committed against a minor. Given the objective pursued by the legislator, article 417quinquies of the Criminal Code should also be mentioned.

31 JULY 2009. - Act respecting various provisions concerning Central Judicial Officer (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. Section 590 of the Code of Criminal Investigation, restored by the Act of 8 August 1997 and amended by the Act of 7 February 2003, is amended as follows:
1st paragraph 1^er, 7°, is replaced by the following:
"7° the terminations of parental authority and reintegration, the measures imposed in respect of minors, as set out in section 63 of the Youth Protection Act of 8 April 1965, the care of minors who have committed a qualified offence and the compensation of the damage caused by this fact, as well as the lifting or modification of these measures decided by the youth court under section 60; »;
2° paragraph 1^er is completed as follows:
"17° the convictions by simple conviction made under section 21ter of the Act of 17 April 1878 containing the preliminary title of the Code of Criminal Procedure;
18° the prohibition referred to in Article 35, § 1^er, paragraph 2, of the Act of 20 July 1990 on pre-trial detention, where they relate to persons who have no residence or domicile in Belgium. »
Art. 3. In section 593 of the same Code, restored by the Act of 8 August 1997 and amended by the Act of 21 June 2004, the following amendments are made:
1° in paragraph 1^er, the words "the judges and assessors of the courts of enforcement of sentences" are inserted after the words "the investigating judges";
2° in paragraph 1^er, the words "level 1" are replaced by the words "level A";
Paragraph 2 is replaced by the following:
"The magistrates of the Public Prosecutor's Office, examining magistrates, judges and assessors of the courts of enforcement of level A penalties and officers referred to in paragraph 1^er, may delegate this faculty to one or more persons who are under their authority, designated by name and in writing. »
Art. 4. In section 594, paragraph 2, of the same Code, restored by the Act of 8 August 1997, the following amendments are made:
1° the words ", to convictions by simple conviction," are inserted between the words "to imprisonment for not more than six months," and the words "to fines not exceeding 500 francs";
2° the words "500 francs" are replaced by the words "500 euros".
Art. 5. In section 595, paragraph 2, of the same Code, restored by the Act of 8 August 1997, the following amendments are made:
1° the words ", convictions by simple conviction and convictions" are inserted between the words "to imprisonment for a maximum of six months" and the words "to fine sentences not exceeding 500 francs";
2° the words "500 francs" are replaced by the words "500 euros".
Art. 6. In section 596 of the same Code, restored by the Act of 8 August 1997, the following amendments are made:
1° paragraph 2 is replaced by the following:
"When the request for an extract is made for access to an activity that falls under education, psycho-medical-social guidance, youth assistance, child protection, animation or supervision of minors, the extract mentions, in addition to the decisions referred to in paragraph 1^eralso the convictions referred to in section 590, paragraph 1^er, 1° and 17°, and the decisions referred to in Article 590, paragraph 1^er, 2°, 4°, 5° and 16°, for acts committed in respect of a minor, and provided that this element is constituting the offence or aggravates the penalty. The municipal administration also mentions, if the person concerned is prohibited from carrying out an activity that would put it in contact with minors, decided by a judge or an investigating court under section 35, § 1^er2 of the Act of 20 July 1990 on preventive detention. The prohibition must be mentioned on the excerpt until the subsequent judgment acquires the force of judgment. In order to obtain this information, the municipal administration addresses the local police department. »;
2° the article is supplemented by a paragraph written as follows:
"The extract referred to in paragraph 2 cannot be delivered to a person in pre-trial detention. »
CHAPTER 3. - Amendment of the Act of 8 August 1997 on Central Judicial Officer
Art. 7. Section 29 of the Central Judicial Officer Act of 8 August 1997 is repealed.
CHAPTER 4. - Amendments to the Act of 20 July 1990 on preventive detention
Art. 8. In Article 35, § 1^erof the Act of 20 July 1990 on pretrial detention, as amended by the Act of 27 December 2006, a paragraph is inserted between paragraphs 1^er and 2:
"It may prohibit the person concerned from carrying out an activity that would put him in contact with minors. »
Art. 9. Section 37 of the Act is supplemented by a paragraph written as follows:
"Decisions made under Article 35, § 1^er, paragraph 2, as well as decisions for withdrawal, modification or extension of these decisions, are forwarded to the police service of the municipality where the person concerned has his domicile or residence. When the person concerned has no domicile or residence in Belgium, this information is transmitted to the Central Judicial Officer. »
CHAPTER 5. - Transitional provision and entry into force
Art. 10. Until 31 December 2012, and by derogation from articles 595 and 596 of the Code of Criminal Investigation, the municipal authorities issue extracts of criminal record on the basis of the data contained in the communal judicial records.
For this purpose, the clerks also transmit to the communal administration of the domicile or place of residence of the person who has been the subject of the decision, the suspensions of the conviction and the simple convictions pronounced against him.
Art. 11. This Act is effective June 30, 2009.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given to Trapani, July 31, 2009.
ALBERT
By the King:
Minister of Justice,
S. DE CLERCQ
Seal of the state seal:
Minister of Justice,
S. DE CLERCQ
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Note
(1) Session: 2008/2009.
House of Representatives.
Parliamentary documents. - Bill No. 1997/1. - Amendments, No. 1997/2. - Report, no. 1997/3. - Text adopted by the Justice Commission, No. 1997/4. - Amendment tabled in plenary meeting, No. 1997/5. - Text adopted in plenary and transmitted to the Senate, No. 1997/6. Full report: 25 June and 2 July 2009.
Senate.
Parliamentary documents. - Project referred to by the Senate, No. 4-1387/1. - Amendments, No. 4-1387/2. - Report made on behalf of the Justice Commission, No. 4-1387/3. - Text corrected by the Justice Commission, No. 4-1387/4. - Decision not to amend, No. 4-1387/5. - Annales of the Senate: July 15 and 16, 2009.