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5 AOUT 2006. - Act respecting the application of the principle of mutual recognition of judicial decisions in criminal matters between the Member States of the European Union (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - Preliminary provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER II. - General principles
Art. 2. § 1^er. This Act governs, in the relations between Belgium and the other Member States of the European Union, the modalities for the execution of decisions taken in the context of a criminal procedure by a competent judicial authority in accordance with the law of the issuing State, and the modalities to be followed by the Belgian judicial authorities for the transmission of such decisions.
§ 2. For the purposes of this Act, the State of issue is the Member State of the European Union in which a judicial decision has been rendered. The Implementing State means the Member State of the European Union to which a judicial decision has been passed for the purposes of its execution.
§ 3. As a transitional measure and until the transfer of other executive decisions of the Council of the European Union applying the principle of mutual recognition, it is necessary to hear, for the purposes of this Act, the terms "judicial decision" by "judicial decision for the seizure of property".
Art. 3. § 1^er. Subject to the exceptions set out in this Act, the decision shall be transmitted together with a certificate established in the forms prescribed in the annex to this Act and signed and its certified content exact by the competent judicial authority of the issuing State.
§ 2. The certificate sent by a Belgian authority to the competent authority of the enforcement State shall be translated into the official language(s) of that State or in the language(s) accepted by that State under a declaration filed with the General Secretariat of the Council of the European Union.
If the competent judicial enforcement authority is not known, the necessary research may be carried out by any means, including the points of contact of the European judicial network, in order to obtain this information from the enforcement State.
§ 3. The certificate sent to the Belgian authorities must be translated into Dutch, French, German or English.
When the Crown prosecutor who receives a judicial decision is not territorially competent to follow up on it in accordance with the provisions of this Act, he shall forthwith transmit the judicial decision to the procurator of the territorially competent King and inform the issuing authority.
If the court decision deals with several properties located in different districts, the competent King's Attorney is that of the place where the majority of property is located.
Art. 4. § 1^er. The enforcement of the judicial decision is mandatory subject to the application of one of the reasons for refusal set out in this Act.
§ 2. The judicial decision ordered by a Belgian judicial authority is executed in accordance with Belgian law.
However, in order to ensure that the evidence obtained is admissible in the issuing State, the seizure is carried out according to the procedural rules expressly specified by the issuing judicial authority, provided that these rules do not reduce fundamental rights and do not infringe any other fundamental principle of Belgian law.
Art. 5. § 1^er. A copy of any judicial decision transmitted or received by a Belgian judicial authority under this Act is transmitted to the Federal Public Service Justice.
§ 2. The competent judicial authorities shall inform, without delay, the Federal Public Service Justice of any difficulties encountered in the application of this Act, either on the occasion of the execution in Belgium of a foreign judicial decision or of the execution by a Member State of the European Union of a judicial decision issued by a Belgian judicial authority.
CHAPTER III. - The general causes of refusal of execution
Art. 6. § 1^er. The enforcement of the judicial decision is denied if the facts for which this decision was pronounced do not constitute an offence under Belgian law.
§ 2. The preceding paragraph does not apply if the facts constitute one of the following offences, provided that they are punished in the State of issue of a custodial sentence of not less than three years:
1° participation in a criminal organization,
2° terrorism,
3° deals with human beings,
4° sexual exploitation of children and child pornography,
5° Illicit trafficking in narcotic drugs and psychotropic substances,
6° illicit trafficking in weapons, ammunition and explosives,
7° corruption,
8° fraud, including fraud affecting the financial interests of the European Communities within the meaning of the agreement of 26 July 1995 on the protection of the financial interests of the European Communities,
9° laundering of proceeds of crime,
10° false money, and the counterfeit of the euro,
11° cybercrime,
12° crimes against the environment, including illicit trafficking in endangered animal species and illicit trafficking in endangered species and plant species,
13° helps in the irregular entrance and stay,
14° voluntary homicide, serious bodily harm,
15° illicit trafficking in human organs and tissues,
16° kidnapping, sequestration and hostage taking,
17° Racism and xenophobia,
18° organised flights or with weapon,
19° Illicit trafficking in cultural property, including antiques and works of art,
20° scam,
21st racket and extortion of funds,
22° counterfeit and hacking of products,
23° falsification of administrative documents and traffic of false,
24° falsification of means of payment,
25° illicit trafficking in hormones and other growth factors,
26° Illicit trafficking in nuclear and radioactive materials,
27° traffic of stolen vehicles,
28° rape,
29° voluntary fire,
30° crimes under the jurisdiction of the International Criminal Court,
31° diversion of aircraft or ships,
32° sabotage.
§ 3. in respect of taxes, taxes, customs and exchanges, the enforcement of the judicial decision may not be refused on the ground that the Belgian law does not impose the same type of taxes or taxes or does not contain the same type of regulation in respect of taxes or taxes, customs and currency as the legislation of the issuing State.
§ 4. For the purposes of § 2, 14°, the facts of abortion referred to in Article 350, paragraph 2, of the Criminal Code and the facts of euthanasia referred to in the law of 28 May 2002 on euthanasia are not considered to be covered by the notion of voluntary homicide.
Art. 7. § 1^er. The enforcement of the judicial decision is denied in the following cases:
1° if Belgian law provides for immunity that makes it impossible to execute the decision;
2° if the enforcement of the judicial decision is contrary to the principle "non bis in idem";
3° if there are serious reasons to believe that the enforcement of the judicial decision would have the effect of violating the fundamental rights of the person concerned, as enshrined in Article 6 of the Treaty on the European Union.
§ 2. If the certificate provided for in Article 3, § 1^er, is not produced, if established in an incomplete manner or if it clearly does not correspond to the judicial decision, enforcement may be authorized if the Belgian enforcement authority considers that it has sufficient information.
If the enforcement authority considers that it does not have sufficient information to allow the execution, it shall grant the issuing authority a time limit for the certificate to be produced, completed or corrected. If the information is not provided within the time limit, the execution is refused.
CHAPTER IV. - The seizure
Art. 8. In relations with the Member States of the European Union, and only with regard to the execution and issuance of seizures, this Act replaces the Act of 20 May 1997 on international cooperation with regard to the execution of seizures and confiscations.
However, a request for the execution of a seizure made on the basis of other international instruments in force and emanating from a Member State of the European Union that has not yet transposed the provisions of Framework Decision 2003/577/JAI of the Council of 22 July 2003 in its domestic law remains admissible and continues to be governed by the Act of 20 May 1997 on international cooperation with regard to the execution of seizures and confiscations.
Art. 9. In the certificate provided for in Article 3, § 1^er, the notion of "frost" refers to that of " seizure" within the meaning of articles 35, 35bis and 35ter of the Criminal Code.
Art. 10. To the extent of its competence, the Central Organ of Seizures and Confiscations shall assist, if requested, the competent judicial authorities for the execution of this Act.
Section 1^re. - Cause of particular refusal to the seizure
Art. 11. In the event that the seizure has been ordered for subsequent confiscation of the property, the execution of the seizure is refused if, excluding the cases referred to in Article 6, § 2, the facts cannot result in a penalty of confiscation under Belgian law.
Section 2. - The enforcement procedure
Art. 12. § 1^er. After receiving a decision of seizure from a Member State of the European Union, the King's Prosecutor immediately seizes the investigating judge of the place where the property is located or most of them. The investigating judge shall rule on the execution of the seizure if possible within 24 hours and no later than 5 days of his referral.
§ 2. In order to decide, the examining magistrate checks whether:
1° the conditions of articles 2 and 3 are fulfilled;
2° there is no need to apply one of the reasons for refusal under Articles 6, 7 and 11;
At the stage of the initial review of the seizure decision, the application of Article 7, § 1^er2° shall be manifest in the light of the elements provided.
3° in the case where the fact at the basis of the seizure decision is contained in the list of Article 6, § 2, the behaviours as described in the certificate correspond well to those taken in that list;
4° One of the reasons for stay of execution provided for in section 13.
§ 3. If the property cannot be found at the place specified in the certificate or where the property or evidence is located has not been specified in a specific manner, the enforcement authority shall consult with the issuing authority.
§ 4. Without prejudice to section 15, the order of the investigating judge is not subject to appeal.
Art. 13. The investigating judge may decide to postpone the execution of the seizure in the following cases:
1° where the execution of the case may affect an ongoing criminal investigation, until the judge in charge of the case considers it reasonable;
2° where the property or evidence concerned has already been subject to a provisional seizure in criminal proceedings, and until such action is lifted.
Art. 14. § 1^er. The decision on the execution of the seizure shall be communicated immediately to the Crown Prosecutor who shall promptly inform the competent authority of the issuing State, specifying the reason and, if possible, the envisaged duration of a possible postponement of the execution.
§ 2. In the case of a postponement of the execution, the measures necessary for the execution of the seizure decision are taken without delay as soon as the reason for postponement ceases to exist. The King's Prosecutor shall promptly inform the competent authority of the issuing State.
§ 3. The King's Prosecutor shall promptly inform the competent judicial authority of the issuing State in the event of a practical impossibility of executing the seizure, either because the property or evidence has disappeared, has been destroyed, cannot be found at the place specified in the certificate or because the place where the property or evidence is located has not been indicated in a sufficiently precise manner, even after consultation with the issuing State.
§ 4. The King's Prosecutor shall inform the competent authority of the issuing State of any subsequent seizure of which the property concerned may be subject.
§ 5. For the purposes of this provision, the information provided by the Crown Prosecutor shall leave a written record.
Section 3. - Subsequent regime of the seized property
Art. 15. § 1^er. Any injured person may request the removal of the seizure. The procedure provided for in Article 61 quater of the Criminal Code is applicable. The jurisdiction of the investigating judge is limited to verifying the existence of the substantive conditions listed in Article 12, § 2, of this Law. The King's Prosecutor shall inform the competent authority of the issuing State of the request for a lift and of the means raised, so that it may make the evidence that it considers necessary.
An application to lift the seizure has a suspensive effect on the execution of the application for confiscation or transfer of the property as evidence.
§ 2. The reasons for the seizure can only be challenged by an action before a court of the issuing State.
§ 3. Pursuant to Article 61sexies of the Code of Criminal Investigation, the examining magistrate may authorize the Central Body for Seizure and Confiscation to dispose of the property or to return it under warranty. The competent authority of the issuing State is previously consulted on the subject.
§ 4. The Crown Prosecutor shall inform the issuing authority of the results of the actions provided in §§ 1^er and 3.
Art. 16. § 1^er. The seizure is maintained:
1° to the release of the enforcement decision in accordance with Article 15; or
2° to the release of the decision by the competent judicial authority of the issuing State; or
3° until the final processing of the application for the execution of the confiscation or transfer of the property as evidence to the issuing State accompanying the decision to seizure. If this is not the case, the seizure shall be held until the likely date of receipt of the application referred to in the certificate, unless renewal by the competent examining magistrate before that date.
§ 2. In the case of a conservatory real estate seizure, the seizure shall be held no later than the expiry of the period of validity of the transcript, unless the competent investigating judge renews before that date.
§ 3. Before the expiry of the deadlines set out in § 1^er, point 3° and § 2, the King's prosecutor informs the authority of the issuing State so that it can make its observations.
Art. 17. The request for confiscation or transfer of the property as evidence to the issuing State is dealt with in accordance with the applicable international instruments between the Member States of the European Union and the Belgian law.
However, the request for the transfer of evidence cannot be refused by invoking the absence of double criminality, if it concerns the offences referred to in Article 6, § 2, and that these offences are punishable in the issuing State of a deprivation of liberty of at least 3 years.
Section 4. - The issuance of a seizure decision by a Belgian judicial authority
Art. 18. § 1^er. Any decision taken by an investigating judge or by a Crown prosecutor or by a court under a criminal investigation shall be transmitted to the judicial authority of the territorially competent enforcement State for its execution, in accordance with Article 3.
§ 2. The seizure decision transmitted in accordance with Article 3:
(a) is accompanied by a request for the transfer of evidence, or the execution of a confiscation decision in accordance with the international instruments applicable between the Member States of the European Union and the Belgian law;
(b) or, in the certificate, contains an instruction to ensure that the property is maintained in the enforcement State pending an application under (a). The likely date on which the application will be addressed is indicated in the certificate.
§ 3. The judicial enforcement authority is promptly informed of any release of the seizure decision.
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 on 5 August 2006.
ALBERT
By the King:
For the Minister of Justice, absent, Minister of Social Affairs and Public Health,
R. DEMOTTE
Seal of the state seal:
For the Minister of Justice, absent,
Minister of Defence,
A. FLAHAUT
____
Notes
(1) Parliamentary references.
Documents of the House of Representatives:
51-2106 - 2005/2006:
Number 1: Bill.
Number 2: Report made on behalf of the Commission.
No. 3: Text adopted in plenary and transmitted to the Senate.
Full report, no. 206, p. 16-17.
Documents of the Senate.
3-1672
Number 1: Project referred to by the Senate.
Number 2: Report made on behalf of the Commission.
No. 3: text corrected by the Commission.
No. 4: Decision not to amend.
Annales du Sénat : July 13, 2006.
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