10 AVRIL 2003. - Law regulating proceedings before military courts and adapting various legal provisions following the abolition of military courts in peacetime

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers have adopted and We sanction the following:
PART I^er. - General provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
PART II. - Proceedings before military courts
CHAPTER I^er. - General provisions
Art. 2. In wartime, subject to the exceptions set out in the Act of 10 April 2003 regulating the abolition of military courts in peacetime and their maintenance in wartime, the offences are sought and their perpetrators prosecuted and tried according to the common law of criminal proceedings.
Art. 3. Public action may be brought to the military court by:
1° direct quote from the military auditor;
2° of voluntary appearance of the accused;
3° of referral order issued by the board or by the board of indictments to military courts.
Art. 4. Before the military courts, public action may not be brought by direct quotation from the injured party, without prejudice to the possibility of forming a civil party before the military courts in accordance with the common law of criminal proceedings.
Art. 5. In times of war, it is impossible to form a civil party before the investigating judge in military courts.
Art. 6. In times of war the judge of the military jurisdiction who imposes a custodial sentence may decide that it is only enforced from the day fixed by the King for the handover of the army on peace.
CHAPTER II. - Preventive detention
Art. 7. This chapter regulates preventive detention in respect of persons within the jurisdiction of military courts.
Except for articles 13, 19, §§ 2, 3, paragraph 2, and 5, 26, 27, § 1^er, 33, § 2, and 36, § 2, the Act of 20 July 1990 on preventive detention is applicable in time of war.
Art. 8. § 1^er. The accused and his counsel shall be heard when the board's chamber near the military court decides whether or not a military court is dismissed.
§ 2. In the event of a non-place, the arrested person is released.
§ 3. If the facts are punishable by correctional penalties, the arrested person may be released by order of removal.
§ 4. The military auditor may appeal to the board of indictments against the non-place or against the order of reference for the lifting of pretrial detention.
The appeal must be filed within 24 hours of the date of delivery. The appeal is suspensive.
The notice of appeal must be made at the Military Court Registry where the Council Chamber has served and is recorded in the appeals register.
Art. 9. If the accused is not terminated in pre-trial detention and if the accused is summoned to appear, the provisional release may be granted following the introduction of a request to:
1° to the military court seized of the case, from the order of reference to the judgment;
2° to the Military Court, from the appeal to the decision in the level of appeal;
3° to the Military Court, from the appeal in cassation to the judgment.
Art. 10. When the military court or the Military Court condemns the defendant or the accused to a final sentence of imprisonment as a principal, they may, upon requisition of the Public Prosecutor's Office, order the immediate arrest of the person concerned if he or she is concerned that he or she attempts to escape the execution of the sentence or if his arrest is necessary for the maintenance of military discipline within the army.
This decision refers to the circumstances of the cause justifying this fear.
Such decisions should give rise to a specific debate immediately after the sentencing.
The defendant and his counsel are heard if he is present. These decisions are not subject to appeal or opposition.
Art. 11. In wartime, the powers conferred on the board and the board of indictments under sections 1^er6, 7 and 9 of the Law of 1^er July 1964 of social defence in respect of abnormals, habitual offenders and perpetrators of certain sexual offences, as well as the Suspension, Suspension and Probation Act of 29 June 1964, are exercised by the board's chamber in the military court and by the indictment board in the Military Court.
Art. 12. The possibility of appealing against the orders of the Military Court Board Chamber and the judgments of the Indictment Chamber to the Military Court may be suspended in the same manner and in the same circumstances as those provided for in section 24.
CHAPTER III. - Participation and connexity
Art. 13. Where a person subject to military jurisdictions and a person subject to common law courts are prosecuted at the same time, either as a perpetrator, co-author or accomplice of the same offence or for related offences, the courts of common law are competent to judge the person subject to military jurisdictions.
Art. 14. When the board or the board of indictments near the courts of common law decides that there is no need to prosecute the person subject to the courts of common law, but considers that the person subject to the military courts must be prosecuted, it refers the person to the military courts.
Art. 15. When the board or the board of indictments near military courts is of the opinion that it is also necessary to prosecute a person subject to the common law court, it suspends its order on the requisition of the military auditor until the decision on public action against that person is taken.
Art. 16. When several military courts are seized of the same offence or related offences, the Military Court decides which military tribunal is competent.
CHAPTER IV. - Offences committed at the hearing
Art. 17. Courts of common law may consider, as a matter of priority and within the limits of common law, a person subject to military jurisdictions who committed an offence at the hearing of the courts of common law, after the appointment of counsel to the person concerned. They may also refer the person concerned to the Public Prosecutor's Office to military jurisdictions. They can order in any case his arrest.
Art. 18. Where a person subject to the courts of common law has committed an offence at the hearing of the military courts, the person shall be immediately tried, after the appointment of counsel. It may also be referred to the competent public prosecutor in the courts of common law.
Art. 19. Where a person subject to military jurisdictions has committed an offence at the hearing of these jurisdictions, the person may be immediately tried, after the appointment of counsel.
CHAPTER V. - remedies
Section I^re- From the opposition
Art. 20. The opposition is made according to the same formalities and within the same time limits as the common law of criminal proceedings provides in correctional matters. The opposition may also be made by way of a statement to the Registry of the Military Court or the Military Court.
Section II. - Call.
Art. 21. The Public Prosecutor ' s Office, the convict and the civil party with regard to civil interests may appeal against the judgements of military courts.
Art. 22. The statement of appeal is made to the Registry of Military Courts on the same formalities and within the same time limits as the common law of criminal proceedings provides in correctional matters.
Art. 23. When the accused person did not appear in the appeal or was not represented, he cannot be admitted to cassation.
Art. 24. The appeal period may be due to military necessity, suspended or reduced to a maximum of five days by a royal decree deliberated in the Council of Ministers. The commander of a place or part of the army whose means of communication are interrupted by the enemy or by force majeure always has the right to order the suspension.
Section III. - The cassation case
Art. 25. Subject to the provisions of this section, the appeal against judgements of the Military Court shall be filed on the same formalities and within the same time limits as the common law of criminal proceedings provides for corrections.
Art. 26. The notice of appeal in cassation may be made by the convict or by the civil party or by the Public Prosecutor's Office both at the Military Court Registry and at the Military Court Registry.
Art. 27. In the event of an annulment, the case is referred to the Military Court, composed of other judges.
Art. 28. The time limit for filing in cassation may be suspended or limited in accordance with section 24.
CHAPTER VI. - Transitional provisions
Art. 29. § 1^er. At the time of the coming into force of this Act, cases pending before the military courts shall be registered on an ex officio basis and without charge to the general role of ordinary courts, as follows:
1° to the role of the police court, all cases which under the Code of Criminal Investigation fall within its jurisdiction;
2° to the role of the Correctional Court, all cases which under the Code of Criminal Investigation fall within its jurisdiction;
3° to the role of the Court of Appeal, all cases which pursuant to the Code of Criminal Investigation fall within its jurisdiction.
§ 2. Cases that fall within the jurisdiction of the court of siege will nevertheless be transmitted to the board of indictments that may decide to correct or bring the case to the court of siege.
§ 3. The territorial jurisdiction of the courts referred to in § 1^er or the board of indictments referred to in § 2 shall be established in accordance with the Code of Criminal Investigation.
Art. 30. Cases handled by the Military Court according to the privilege of jurisdiction shall be entered in the role of the Court of Appeal in accordance with the preceding article.
Art. 31. Appeals or objections against decisions of a deleted court shall be brought before the court to hear such appeals or objections in accordance with Article 29.
Art. 32. The Chief Clerk of the abolished military jurisdiction shall send the files to the Clerk of the competent court.
Art. 33. The cases for which a judicial commission is seized are transmitted by the chief clerk of the judicial commission removed to the investigating judge of the competent judicial district according to the rules of the Code of Criminal Investigation.
Art. 34. The cases for which no judicial commission is seized are transmitted by the military auditor to the District Attorney of King according to the Code of Criminal Investigation.
PART III. - Amendments and various
CHAPTER I. - Amendments to the Code of Criminal Investigation
Art. 35. In the Criminal Code, an article 182bis is inserted, which reads as follows:
"Art. 182bis. Notices, notifications and meanings to an accused, accused, convicted, witness or victim, subject to military laws, or attached in any capacity to a fraction of the army or authorized to follow it, may also be validly handed over, on Belgian territory or on foreign territory, to the military unit to which it belongs, to the custodian of the place where it is held or, if it is impossible to reach it personally, to the military authority of which it is not
If circumstances so require, such notices, notifications and meanings may be sent by all appropriate means of communication, available to the army through intervention by the military authorities. »
Art. 36. In the same Code, an article 184ter is inserted as follows:
"Art. 184ter. When the accused person or accused person, placed under arrest warrant, is part of a fraction of the army located abroad and where circumstances do not allow for the choice of a lawyer or to appoint a lawyer, the commander of the fraction of the army in which the person is located, may designate a doctor or a legal officer. In the absence of a doctor or a law-enforcement officer, he or she designates an officer and fails to be an officer, a person deemed to be capable of defending the person. The commander of the fraction of the army must mention the impossibility in his report.
Section 458 of the Penal Code applies to all persons referred to in paragraph 1^er.
As soon as the intervention of a lawyer is possible, the persons referred to in paragraph 1^er withdrew. The documents relating to compliance with these formalities are added to the criminal record. »
CHAPTER II. - Amendments to the Act of 27 May 1870
Military Criminal Code
Art. 37. An article 5bis, written as follows, is included in the Act of 27 May 1870 containing the Military Criminal Code:
"Art. 5bis. Military degradation may also be pronounced in respect of the military on unlimited leave. »
Art. 38. In the same Code, a chapter I is inserted^erbis, as follows:
“Chapter I^erbis. Persons subject to military criminal laws. »
Art. 39. In chapter Ierbis of the same law, an article 14 is inserted as follows:
“Art. 14. Military criminal laws are applicable to any person who, in accordance with the Act of 20 May 1994 on the implementation of the armed forces, on condition and at times and positions in which the member may be present, are in active or non-active service. »
Art. 40. In chapter Ierbis of the same law, an article 14bis is inserted as follows:
"Art. 14bis. Persons engaged in an establishment or in a military service may be subject, under a Royal Decree, to certain provisions of military criminal laws specified in their contract of engagement. »
Art. 41. In chapter Ierbis of the same law, an article 14ter is inserted as follows:
"Art 14ter. Military personnel on unlimited leave within the meaning of Article 7 of the above-mentioned Act of 20 May 1994 are subject to military criminal laws for the following offences:
1° treason and spying;
2° participation in a revolt as provided for in this Code;
3° violence and insults against a superior or sentinel;
4° participation in a military desertion with conspiracy;
5° fraudulent diversion and subtraction of all objects assigned to the service of the army and belonging to either the State or to the military. »
Art. 42. In chapter Ierbis of the same law, an article 14quater is inserted as follows:
"Art. 14quater. Persons who, in the year following the final leave as provided for in section 8 of the above-mentioned Act of 20 May 1994, commit against one of their former superiors or against any other superiors in connection with the service relations they had with him one of the offences set out in sections 34 to 40 and 42 or an offence under sections 443 to 452 of the ordinary Criminal Code are subject to military laws.
In the case referred to in article 34, the accused shall be punished in accordance with paragraph 2 of that article irrespective of his or her grade. »
Art. 43. Section 53 of the Act, repealed by section 4 of the Decree-Law of 11 October 1916, is reinstated in the following wording:
"A default procedure against a deserter because of an offence defined in this chapter is not permitted. »
Art. 44. In article 57bis, § 3bis, of the same law, the words "near military courts" are deleted.
Art. 45. Section 60 of the Act, repealed by the Act of 24 July 1923, is reinstated in the following wording:
"The Suspension, Suspension and Probation Act of 29 June 1964 is applicable to measures and penalties that may be imposed in accordance with the requirements of this Code. »
Art. 46. In section 61 of the Act, the words "with the exception of sections 1^er to 14 inclusively" are deleted.
CHAPTER III. - Amendment of the Act of 8 April 1965
on the Protection of Youth
Art. 47. Section 36, paragraph 2, of the Youth Protection Act of 8 April 1965 is repealed.
CHAPTER IV. - Amendments to the Act of 20 July 1990
on preventive detention
Art. 48. Section 9 of the Act of 20 July 1990 on preventive detention is supplemented by the following paragraph:
"In peacetime, the warrant to bring a person under section 10bis of the preliminary title of the Code of Criminal Procedure may be issued if applicable in the foreign territory. »
Art. 49. Section 14 of the Act is supplemented by the following paragraph:
"If the warrant is issued in accordance with section 9, paragraph 2, and the person cannot be found, it may be presented to the commander of the military unit to which the person belongs. In this case, the commanding officer aims at the original of the act of service. »
Art. 50. Article 16, § 2, of the Act is supplemented by the following paragraph:
"When the arrest warrant is executed in accordance with Article 19, § 1^erbis, it is used during interrogation to audiovisual means. »
Art. 51. In section 19 of the Act, the following amendments are made:
1° it is inserted a § 1^erbis, as follows:
« § 1^erbis. 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 issued, if any, on foreign territory. »
2° § 6 is supplemented by the following paragraph:
"When the arrest warrant is executed in accordance with Article 19, § 1^erbis, discharge and acknowledgement of receipt must be forwarded to the examining magistrate within twenty-four hours after the arrival of the accused in Belgian territory. »
Art. 52. An article 32bis, as follows, is inserted in the same law:
"When the arrest warrant is to be executed in accordance with Article 19, § 1^erbis, the investigating judge may extend the period of Article 21 of five days in case of force majeure. This extension shall intervene barely in the validity of the warrant issued.
The circumstances that justify this manner of action must be expressly mentioned in the arrest warrant that this extension concerns. There is no possibility of appeal against this decision. »
Art. 53. In article 34, § 2, paragraph 2, of the same law, the words "or in the foreign territory where a fraction of the army is stationed" are inserted between the words "Belgian" and "of the mandate".
CHAPTER V. - Amendments to the Act of 8 March 1999
establishing a Judicial Advisory Board
Art. 54. In Article 2, § 2, 4th dash, of the Act of 8 March 1999 establishing a Judicial Advisory Council, the words "or near the War Council" are deleted.
Art. 55. Article 3, § 1^er, paragraph 2, first dashes, from the same law, the words "courses of appeal, courses of work and the Military Court" are replaced by the words "courses of appeal and courses of work".
CHAPTER VI. - Final provision
Art. 56. This Act comes into force on the date fixed by the King.
Promulgons 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 10 April 2003.
ALBERT
By the King:
Minister of Justice,
Mr. VERWILGHEN
Minister of Defence,
A. FLAHAUT
Seal of the state seal:
Minister of Justice,
Mr. VERWILGHEN
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Note
(1) Regular session 2002-2003.
Senate.
Parliamentary documents.
50-2359/1: Text adopted in plenary and transmitted to the Senate.
1536/1: Project referred to by the Senate.
1536/2: Report made on behalf of the Commission.
1536/3: Text corrected by the commission.