Posted the: 2003-05-07 Numac: 2003009371 Ministry of defence and SERVICE PUBLIC FÉDÉRAL JUSTICE April 10, 2003. -Law regulating the procedure before military courts and adapting various legal provisions following the abolition of military tribunals in peacetime ALBERT II, King of the Belgians, to all, present and to come, hi.
The adopted private and we endorse the following: title I:. -Available general Article 1.
This Act regulates a matter referred to in article 78 of the Constitution.
TITLE II. -From the proceedings before military courts chapter I:. -Provisions general article
2. in time of war, subject to the exceptions referred to in the law of 10 April 2003 regulating the abolition of military tribunals in peacetime as well as keeping them in time of war, offences are sought and their authors prosecuted and tried according to the law of criminal procedure.
3. public action may be brought before the military court through: 1 ° direct quote from the military auditor;
2 ° voluntary appearance of the accused;
3 ° order of reference by the Council Chamber or the Chamber of indictments before military courts.
S. 4. before the military courts, public action may not be commenced by way of a direct quote from the injured party, without prejudice to the possibility to build a party civil before military courts under the common law of criminal procedure.
5. in time of war, it is impossible to build civil party before the examining magistrate to military courts.
S. 6. in time of war the judge of the military court which imposes a custodial sentence may decide that it be only run from the day appointed by the King for the surrender of the army on foot of peace.
CHAPTER II. -From preventive detention art. 7. This chapter sets the preventive detention against persons within the jurisdiction of military courts.
With the exception of sections 13, 19, §§ 2, 3, paragraph 2, and 5, 26, 27, § 1, 33, § 2, as well as 36, § 2, Act of 20 July 1990 on pre-trial detention is applicable in time of war.
S. 8 § 1. The accused and his counsel are heard when the Chamber of the Court military Council decides the nonsuit or the reference to a military tribunal.
§ 2. In the event of dismissal, the arrested accused is released.
3. If the facts are punishable by correctional penalties, the arrested accused may be released by order of reference.
§ 4. The military auditor may file an appeal with the House of indictments against dismissal or the order for reference as regards the lifting of pretrial detention.
The appeal must be brought within a period of 24 hours from the date of delivery. The appeal is suspensive.
The notice of appeal must be made in the registry of the military tribunal where the Council Chamber has sat and is recorded in the register of appeals.
S. 9. If it is not terminated to the detention on remand and the defendant is summoned, the bail may be granted following the introduction of an application: 1 ° at the military tribunal seized of the case, from the order for reference until the judgment.
2 ° to the military court, from the call until the appeal decision;
3 ° to the military court, from an appeal in cassation to the stop.
10. when the military court or military court condemns the accused or the accused at a final sentence of imprisonment main, they may, at the request of the public prosecutor, order the person concerned the immediate arrest if it is feared that he tries to evade enforcement of the penalty or arrest is necessary for the maintenance of military discipline within the army.
This decision refers to the circumstances of the case justify this fear.
Such decisions must give rise to a specific debate immediately after the sentencing.
The accused and his counsel are heard are present. These decisions are not subject to appeal or opposition.
11. in time of war, the powers conferred on the Board of the Council and the Chamber of indictments under articles 1, 6, 7 and 9 of the Act of 1 July 1964 of social defence against the abnormal, habitual offenders and perpetrators of certain sexual offences as well as the law of 29 June 1964 on suspension the conditional sentence and probation are exercised by the Court military Council Chamber and the Chamber indictments at the military court.
S. 12. the possibility of appeal against orders of the Chamber of the Council of the military tribunal and the decisions of the House of the indictments to the military court can be suspended in the same manner and under the same circumstances as provided for in article 24.
CHAPTER III. -Participation and connectedness s. 13. when a person subject to military courts and a person subjected to the ordinary courts continued as author, co-author or accomplice of the same offence or related offences, at the same time, the ordinary courts are competent to try the person subject to military courts.
S. 14. when the Council or the indictments chamber courts of common law decides that not prosecuting the person subject to the courts of common law, but felt instead of pursuing the person subject to military courts, it returns it to military courts.
S. 15. when the Council or the indictments chamber near the military courts considers also continue a person subjected to the ordinary court, it shall suspend its order at the request of the military auditor until the decision on the public action taken against that person.
16. when several military courts are seized of the same offence or related offences, the military court decides what military court is competent.
CHAPTER IV. -Offences committed at the hearing art. 17. the ordinary courts may consider on a priority basis and within the limits of the common law a person subject to military courts who has committed an offence under the common law courts hearing, after appointment of counsel to the person concerned. They can also return the person to the Crown about military courts. They can order in any case his arrest.
S. 18. when a person subject to the courts of common law offence at the hearing of the military courts, it is immediately judged, after appointment of counsel. It can also be referred to the competent public prosecutor close the courts of common law.
S. 19. when a person subject to military courts has committed an offence at the hearing of these jurisdictions, it can be immediately judged, after appointment of counsel.
Chapter V. - Legal remedies Section Ire. -Of the opposition art. 20. the opposition is made according to the same formalities and within the same timeframe as those common law of criminal procedure provides in correctional matters.
The opposition may also be made by means of a declaration from the registry of the military court or military court.
Section II. -By calling s. 21. the public prosecutor, the convicted person and the civil party with respect to the civil interests may appeal against the judgements of military courts.
S. 22. the notice of appeal is made to the registry of military courts according to the same formalities and within the same timeframe as those common law of criminal procedure provides in correctional matters.
S. 23. when the accused has not appeared in appeal or been represented, it can not to appeal in cassation.
24. the appeal period may because of military necessity, be suspended or reduced to a maximum period of five days by a royal decree deliberated in the Council of Ministers. The Commander of a designated place or a fraction of the army which means of communication are broken by the enemy or by force majeure always has the right to order such suspension.
Section III. -The appeal in cassation s. 25. subject to the provisions of this section, an appeal in cassation against decisions of the military court is introduced according to the same formalities and within the same timeframe as those common law of criminal procedure provides in correctional matters.
26. the declaration of appeal in cassation may be made by the convicted person or the civil or by the public prosecutor's Office with part of the registry of the military tribunal from the office of the military court.
S. 27. in the case of a cancellation of a judgment, the case is remitted to the Court military, composed other judges.
S. 28. the time limit for appeal in cassation may be suspended or restricted in accordance with article 24.
CHAPTER VI. -Provisions transitional art.
29 § 1. At the time of the entry into force of this Act, cases pending before military courts are included automatically and free of charge to the general role of the common law courts, as follows: 1 ° to the role of the police court, all business
in accordance with the Code of criminal investigation under its jurisdiction;
2 ° to the role of the Correctional Court, all matters which in accordance with the Code of criminal investigation within its jurisdiction;
3 ° to the role of the Court of appeal, all matters which in accordance with the Code of criminal investigation within its jurisdiction.
§ 2. Matters which are within the jurisdiction of the Court of Assizes will nevertheless transmitted to the indictments chamber, which can decide whether to correctionnaliser or bring the case before the Court of Assizes.
§ 3. The territorial jurisdiction of the courts referred to the § 1 or House indictments referred to in § 2 shall be in accordance with the Code of criminal procedure.
S. 30. the cases dealt with by the military court according to the privilege of jurisdiction are listed on the role of the Court of appeal in accordance with the previous article.
S. 31 oppositions against decisions of a court removed or calls are brought before the Court to know such appeals or objections in accordance with article 29.
S. 32. the Chief Clerk of the suppressed military court sends files to the clerk of the competent court.
S. 33. cases for which a judicial commission has before it, are transmitted by the Chief Clerk of the judicial commission removed the investigating judge of the competent judicial district according to the rules of the Code of criminal procedure.
S. 34. cases for which no judicial commission is entered, passed on by the military prosecutor to the Prosecutor of territorially competent King according to the Code of criminal procedure.
TITLE III. -Amending provisions and various chapter I:. -Changes of the Code of criminal investigation article 35. in the Code of criminal procedure, it is inserted an article 182bis, worded as follows: «art.» 182bis. notices, notifications and meanings in a charged, accused, convicted, witness or victim, subject to military laws, or attached in any capacity that it is at a fraction of the army or authorized to follow, may also be validly given on Belgian territory or on foreign territory, to the military to which unit he belongs, keeper of the place where he is being held or If it is impossible to reach him personally to the military authorities, provided that it is not absent illegitimately.
If the circumstances so require, these notices, notifications and meanings can be sent by any means of communication appropriate the army via intervention of the military authorities.
» Art. 36. in the same Code, it is inserted an article 184ter as follows: «art.» 184ter. when the accused or the accused, placed under arrest, is part of a fraction of the army abroad and when the circumstances do not allow to choose a lawyer or to appoint ex officio a lawyer, the Commander of the fraction of the army where the person may designate a doctor or a law degree. Absence of a doctor or Bachelor of law, it means an officer without officer, a person capable of defending the person concerned. The fraction of the army commander must refer to said impossibility in his report.
Article 458 of the penal Code is applicable to all persons referred to in paragraph 1.
As soon as the intervention of a lawyer is possible, the persons referred to in paragraph 1 withdrew. Documents relating to compliance with these formalities, are added to the criminal file. » CHAPTER II. -Amendments to the Act of May 27, 1870 containing the penal Code military arts.
37. an article 5bis, prepared as follows, is inserted in the Act of May 27, 1870, containing the military penal Code: «art.» 5bis. military degradation may also be pronounced in respect of the military on unlimited leave. » Art. 38. in the same Code, it is inserted an Ierbis chapter, as follows: "chapter Ierbis. Persons subject to the military criminal law. » Art. 39. in chapter Ierbis of the same Act it is inserted a section 14 as follows: «art.» 14. the military criminal laws are applicable to any person who, in accordance with the Act of 20 May 1994 implementation of the armed forces, to the implementation in condition as well as the periods and positions in which the Member might be located, are in active service or non-activity. » Art. 40. in chapter Ierbis of the same Act inserted an article 14 bis as follows: «art.» 14bis. individuals engaged in a facility or a service of the army may be submitted, pursuant to a royal decree to certain provisions of the military penal laws specified in their contract of employment. » Art. 41. in section Ierbis of the same Act inserted an article 14ter as follows: «Art 14ter The military on unlimited leave within the meaning of article 7 of the Act of 20 May 1994 are subject to military criminal law as regards the following offences: 1 ° treason and espionage;
2 ° participation in a revolt as provided by the present Code;
3 ° violence and contempt towards a superior or a sentinel;
4 ° participation to a desertion of soldiers with plot;
5 ° embezzlement and fraudulent subtraction of all objects assigned to the service of the army belonging either to the State or military. » Art. 42. in chapter Ierbis of the same Act inserted an article 14 as follows: «art.» 14. persons who, in the year following the leave final as provided for in article 8 of the Act of 20 May 1994 commit against one of their former superiors, or against any other superior hierarchical on the occasion of the relations of service that they have had with him one of the offences provided for in articles 34 to 40 and 42 or an ordinary offence under articles 443 to 452 of the penal Code are subject to military law.
In the case referred to in article 34 the accused is punished in accordance with paragraph 2 of this article regardless of his rank. » Art. 43. article 53 of the same Act, repealed by article 4 of the Decree-Law of October 11, 1916, is restored in the following wording: "default proceedings against a deserter an offence defined in this chapter is not permitted."
44A article 57A, § 3A of the Act, the words "near military courts" are deleted.
S. 45. article 60 of the same Act, repealed by the law of 24 July 1923, is restored in the following wording: "Act of 29 June 1964 on suspension, suspension and probation applies to the measures and penalties that may be imposed in accordance with the prescribed by this Code."
S. 46. in article 61 of the Act, the words "with the exception of articles 1 to 14 inclusive" are deleted.
CHAPTER III. -Amendment of the Juvenile Welfare Act of 8 April 1965 s. 47. article 36, paragraph 2, of the youth protection act of 8 April 1965 is repealed.
CHAPTER IV. -Amendments to s. pre-trial detention Act of 20 July 1990
48. article 9 of the pre-trial detention Act of 20 July 1990 is supplemented by the following paragraph: "in peacetime, the warrant of arrest issued against a person referred to in article 10bis of the preliminary title of the Code of criminal procedure can be executed if any foreign territory.»
S. 49. article 14 of the same Act is supplemented by the following paragraph: "If the arrest warrant is awarded in accordance with article 9, paragraph 2, and that the person cannot be found, it may be presented to the Commander of the military unit to which belongs the person.". In this case, the Commander is the original of the deed of meaning. » Art.
50. article 16, § 2, of the Act is supplemented by the following subparagraph: "when the arrest warrant is executed in accordance with article 19, § 1bis, is used during examination audiovisual means. ''
S. 51. at article 19 of the Act, the following changes are made: 1 ° it is inserted a § 1bis as follows: "§ 1bis.» In peacetime, the arrest warrant issued against a person referred to in article 10bis of the preliminary title of the Code of criminal procedure may be executed, as appropriate, on the foreign territory. » 2 ° § 6 is supplemented by the following subparagraph: "when the arrest warrant is executed in accordance with article 19, § 1bis, the discharge and acknowledgement of receipt must be sent to the investigating judge within twenty-four hours after the arrival of the accused on Belgian territory.". » Art.
52. an article 32bis, worded as follows, shall be inserted in the Act: "when the arrest warrant must be executed in accordance with article 19, § 1bis, the investigating judge may extend the time of article 21 for five days due to force majeure. '' This extension should intervene on pain of nullity within the period of validity of the issued arrest warrant.
The circumstances which justify this way of acting must be specifically mentioned in the arrest warrant that this extension concerns. There is no possibility of appeal against this decision. » Art.
53 article 34, § 2, paragraph 2, of the Act, the words "or the foreign territory where a fraction of the army is stationed" is inserted between the words "Belgian" and "mandate".
Chapter V. - Amendments to the law of 8 March 1999 establishing an Advisory Board of the s. judiciary
54. at article 2, § 2, 4th indent, of the Act of 8 March 1999 establishing an Advisory Board
of the judiciary, the words "or near war Council" are deleted.
S. 55. at article 3, § 1, paragraph 2, first indent, of the Act, the words "appellate courts, courses of labour and the military court" shall be replaced by the words "courts of appeal and the working classes.
CHAPTER VI. -Disposition final art. 56. this Act comes into force on the date fixed by the King.
Promulgate this Act, order that it be under the seal of the State and published by le Moniteur.
Given in Brussels on 10 April 2003.
ALBERT by the King: the Minister of Justice, Mr. VERWILGHEN Minister of defence, A. FLAHAUT sealed with the seal of the State: the Minister of Justice, Mr. VERWILGHEN _ Note (1) Regular Session 2002-2003.
50 2359/1: text adopted in plenary meeting and transmitted to the Senate.
1536/1: Draft referred by the Senate.
1536/2: Report on behalf of the Committee.
1536/3: Text corrected by the commission.