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An Act To Amend The Code Of Criminal Procedure For The Reopening Of Proceedings In Criminal Matters (1)

Original Language Title: Loi modifiant le Code d'instruction criminelle en vue de la réouverture de la procédure en matière pénale (1)

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1er AVRIL 2007. - An Act to amend the Code of Criminal Investigation for the reopening of criminal proceedings (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. It is inserted in Book II, Title III, of the Code of Criminal Investigation a Chapter IIbis, comprising articles 442bis to 442octies, and titled as follows:
“Chapter IIbis. - The reopening of the procedure."
Art. 3. It is inserted in Chapter IIbis of Title III of Book II of the same Code a section 1st, entitled as follows:
"Section 1st. - Requests for reopening of the procedure."
Art. 4. An article 442bis, which reads as follows, is inserted in Section 1 of Chapter IIbis of Title III of Book II of the same Code:
"Art. 442bis. If it has been established by a final judgment of the European Court of Human Rights that the European Convention for the Protection of Human Rights and Fundamental Freedoms or Additional Protocols, below "the European Convention", have been violated, it may be requested to reopen, with respect to the only public action, the procedure that led to the complainant's conviction in the case before the European Court of Human Rights or the conviction of another person. »
Art. 5. An article 442ter, as follows, is inserted in the same section:
"Art. 442ter. The right to request the reopening of the proceedings is:
1° to the convict;
2° if the convict died, if his prohibition has been pronounced or if he is in a state of absence declared to his spouse, to the person with whom he legally cohabits, to his descendants, to his ascendants, to his brothers and sisters;
3° to the Attorney General at the Court of Cassation, ex officio or at the request of the Minister of Justice. »
Art. 6. An article 442quater, as follows, is inserted in the same section:
"Art. 442quater. § 1er. The Court of Cassation hears requests for reopening.
§ 2. The Court has before it, either by a request of the Attorney General to the Court of Cassation, or by a petition signed by a lawyer registered in the bar for more than ten years. The request or request contains a detailed statement of the facts and mentions the cause of reopening.
The application is filed within six months of the date on which the decision of the European Court of Human Rights has become final.
The application is inadmissible if it is not satisfied with the conditions laid down in the preceding paragraphs.
§ 3. If the convicted person has died, if his prohibition has been pronounced or if he is in a state of absence declared, the Court of Cassation appoints a curator to his defence, who will represent him. The Court of Cassation or the judge to which the case was referred shall also designate a curator if the applicant dies during the examination of the case. »
Art. 7. An article 442quinquies, as follows, is inserted in the same section:
"Art. 442quinquies. When the review of the application indicates that the decision under appeal is contrary to the substance of the European Convention, or that the violation found is the result of errors or procedural failures of a gravity such that serious doubt exists as to the result of the proceedings under appeal, the Court of Cassation orders the reopening of the proceedings, provided that the convicted party or the persons entitled to the proceedings under Article 442 continue to suffer very serious consequences.
In cases where the Court of Cassation rendered the decision under appeal, it considers the application for reopening in a different composition. »
Art. 8. It is inserted in Chapter IIbis of Title III of Book II of the same Code a section 2, entitled as follows:
“Section 2. - The proceedings after reopening »
Art. 9. An article 442sexies, as follows, is inserted in section 2 of Chapter IIbis of Title III of Book II of the same Code:
"Art. 442sexies. § 1er. After the Court of Cassation ordered the reopening of the proceedings, it withdraws the decision under appeal, provided that it has rendered it, and again decides on the initial cassation appeal within the limits of the violation found by the European Court of Human Rights.
In the other cases, the Court of Cassation revokes the decision under appeal and refers the case to a jurisdiction of the same rank as the one that rendered the decision under appeal or annuls the decision under appeal without reference.
The statute of limitations of public action begins to run from the order ordering the reopening.
§ 2. The decision of the Court of Cassation, rendered in accordance with § 1er, produces the same effects as a stop on a cassation case. »
Art. 10. An article 442septies, as follows, is inserted in the same section:
"Art. 442ssepties. § 1er. The court of referral shall render the acquittal of the accused or the accused, or confirm the annulled conviction, except to reduce, where appropriate, the penalty imposed by that conviction.
§ 2. When the Court of Cassation cancels the conviction without reference or when the court to which the case is returned acquits the person convicted by the decision under appeal, they condemn the State to the payment of the damages granted to the civil party or to the reimbursement to the convicted person or his persons entitled to the amount already paid by them. In these cases, the State is also condemned to the payment or reimbursement of damages granted by the civil judge as a result of civil action, provided that the civil action and the decision of the repressive judge concerned the same fact.
§ 3. The fine unduly collected will be refunded, plus legal interests from the perception.
§ 4. In the event of an amendment to the original decision and in the event of a cancellation of the conviction without reference, the court may also order the publication of an extract of its decision in the day to which it designates.
§ 5. An allowance may be awarded to the convicted person in unjust detention pursuant to the amended decision, in accordance with article 28, paragraphs 2 to 5, and 29 of the Act of 13 March 1973 on compensation in the event of inoperative pretrial detention. »
Art. 11. It is inserted in Chapter IIbis of Title III of Book II of the same Code a section 3, entitled as follows:
“Section 3. - Process fees »
Art. 12. An article 442octies, as follows, is inserted in section 3 of Chapter IIbis of Title III of Book II of the same Code:
"Art. 442octies. The costs of proceedings shall be borne by the State, unless the request for reopening, made by request, is declared inadmissible. »
Art. 13. This Act applies to judicial decisions which are the subject of a finding of a violation of the European Convention, in a judgment of the European Court of Human Rights rendered after the coming into force of the Act.
This Act also applies to judicial decisions which are the subject of the finding of a violation of the European Convention, in a judgment of the European Court of Human Rights rendered before the coming into force of the law, if the Committee of Ministers to the Council of Europe has not yet found that it has fulfilled its functions under Article 46, § 2, of the European Convention. By derogation from Article 442quater, § 2, paragraph 2, of the Code of Criminal Investigation, the application for reopening of the proceedings shall be filed in these cases within six months of the date of entry into force of the law.
Art. 14. This Act comes into force on the first day of the seventh month following the one in which it was published in the Belgian Monitor.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, 1er April 2007.
ALBERT
By the King:
The Minister of Justice,
Ms. L. ONKELINX
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Note
Senate
Documents:
3-1769/ 2005/2006:
Number 1: Bill.
3-1769/ 2006/2007:
No. 2: Amendments.
Number three: Report.
No. 4: Text amended by the commission.
See also:
Annales of the Senate:
14 December 2006.
Chamber of Representatives
Documents:
Doc 51 2819/ (2006/2007):
001: Project transmitted by the Senate.
002: Report.
003: Text adopted in plenary and subject to Royal Assent.
See also:
Full record:
15 March 2007.