8 AVRIL 2002. - Witness Anonymity Act (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. - General provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER II. - The partial anonymity of witnesses
Art. 2. An article 75bis, which reads as follows, is inserted in the Criminal Code:
"Art. 75bis . The investigating judge may decide, either on his or her own motion or at the request of the witness or the person in respect of whom the public action is initiated in the course of the investigation, the accused, the civil party or their counsel, or upon the requisition of the public prosecutor's office, that he or she will not be referred to in the record of hearing certain of the identity data provided for in section 75, if he or she The reasons that prompted the investigating judge to make this decision are set out in a minutes. The order of the investigating judge by which he grants or refuses partial anonymity is not subject to appeal.
The King's Prosecutor shall keep a record of all witnesses whose identity data, in accordance with this section, are not included in the hearing record.
The Crown Prosecutor and the investigating judge shall take, each with respect to it, the reasonable measures necessary to avoid the disclosure of the identity data referred to in paragraph 1^er. »
Art. 3. In the same Code, an article 75ter is inserted, which reads as follows:
"Art. 75ter . By derogation from section 75, it is not necessary to mention the residence of persons who, in the exercise of their professional activities, are responsible for the identification and instruction of an offence, or who, in the course of the application of the law, are aware of the circumstances under which the offence was committed, and which are in this capacity heard as witnesses. Instead, they can indicate their service address or address to which they usually practise their profession. The summons to testify can be regularly served at this address. »
Art. 4. In section 77 of the same Code, the words "the three preceding articles" are replaced by the words "articles 74 to 76".
Art. 5. In the same Code, an article 155bis is inserted, which reads as follows:
"Art. 155bis . A court that wishes to proceed with the hearing of a witness who has not been heard by the examining magistrate may decide, either on its own motion or at the request of the witness, on the requisition of the public prosecutor or on the request of the accused, the civil party or their counsel, that it will not be referred to at the hearing and the minutes of the hearing of some of the identity data provided for in section 155, The reasons that prompted the court to make this decision are set out in the minutes of the hearing. The decision by which the court grants or refuses partial anonymity is not subject to appeal.
The witness to whom the partial anonymity was granted in accordance with section 75bis retains his partial anonymity. The partial anonymity granted in accordance with section 75 bis or in accordance with the first paragraph of this section does not prevent the hearing of the witness at the hearing.
The King's Prosecutor shall keep a record of all witnesses whose identity data, in accordance with this section, are not included in the record of the hearing.
The Crown Prosecutor and the Court shall take, each with respect to it, the reasonable measures necessary to avoid the disclosure of the identity data referred to in the first paragraph. »
Art. 6. In the same Code, an article 155ter is inserted, which reads as follows:
"Art. 155ter . By derogation from section 155, it is not necessary to mention the residence of persons who, in the exercise of their professional activities, are responsible for the identification and instruction of an offence, or who, in the course of the application of the law, are aware of the circumstances under which the offence was committed, and which are in this capacity heard as witnesses. Instead, they can indicate their service address or address to which they usually practise their profession. The summons to testify at the hearing can be regularly served at this address. »
Art. 7. In section 189 of the same Code, the words "sections 154, 155 and 156 above" are replaced by the words "sections 154 to 156".
Art. 8. In article 315, paragraph 3, of the same Code, the words "as well as the number of witnesses whose identity data will not be mentioned at the hearing in accordance with article 317 bis" are inserted between the words "and the Attorney General by the accused" and the words "; without prejudice to the power granted to the President by section 269. »
Art. 9. In the same Code, an article 317bis is inserted, which reads as follows:
"Art. 317bis . The President who wishes to proceed with the hearing of a witness who has not been heard by the examining magistrate may decide, either on his or her own motion or on the request of the witness, on the requisition of the public prosecutor or on the request of the accused, the civil party or their counsel, that no mention shall be made at the hearing and at the record of the hearing of certain identity data provided for in section 31 thereof, The Chair mentioned at the hearing the reasons that prompted him to make that decision. These are repeated in the minutes.
The witness to whom the partial anonymity was granted in accordance with section 75bis retains his partial anonymity. The partial anonymity granted in accordance with section 75 bis or in accordance with the first paragraph of this section does not prevent the hearing of the witness at the hearing.
The Attorney General shall keep a record of all witnesses whose identity data, in accordance with this section, were not mentioned at the hearing.
The Attorney General and the President shall take, each with respect to it, the reasonable measures necessary to avoid the disclosure of identity data referred to in paragraph 1^er. »
Art. 10. In the same Code, an article 317ter is inserted, which reads as follows:
"Art. 317ter . By derogation from section 317, it is not necessary to mention the domicile or residence of persons who, in the exercise of their professional activities, are responsible for the recognition and instruction of an offence or who, on the occasion of the application of the law, are aware of the circumstances under which the offence was committed, and who are in that capacity heard as witnesses. Instead, they may indicate their service address or address to which they usually practise their profession. The summons to testify at the hearing can be regularly served at this address. »
CHAPTER III. - The complete anonymity of witnesses
Art. 11. In article 28septies , paragraph 1^er, of the same Code, between the words "preventive detention" and the words "of the surveillance measure" insert the words "of the complete anonymous testimony as provided for in article 86bis ,".
Art. 12. In Book I, chapter VI, section II, distinction 2, of the same Code, it is inserted a paragraph 3bis, which reads as follows:
« § 3bis . Anonymous testimony.
Art. 86bis . § 1^er. If the protective measure provided for in section 75bis does not appear to be sufficient, the investigating judge may order either on his or her own motion or upon the requisition of the public prosecutor's office, if any, of the request of a person who is the subject of an information, or at the request of the witness or of the person in respect of whom the public action is initiated in the course of the investigation, of the accused person or of
1° if it may be admitted that the witness or a person of his or her entourage may reasonably be seriously threatened in his or her integrity because of the testimony, and if the witness has indicated his intention not to testify because of that threat, or
2 if there are specific and serious indications that this witness or a person of his or her entourage is in danger, if the witness is an officer or a judicial police officer.
§ 2. The identity of the witness may only be kept secret, in accordance with section 86ter, if there are precise and serious indications that the facts about which he is being filed constitute an offence referred to in section 90ter, paragraphs 2 to 4, or any offence that has been committed within the framework of a criminal organization, referred to in article 324bis of the Criminal Code, or an offence under the law of 16 June 1993 relating to the repression
§ 3. Before deciding, the investigating judge becomes aware of the complete identity of the witness and controls its reliability.
§ 4. The order made in accordance with § 1^er is motivated, dated and signed. It refers to the application of the above paragraphs and the manner in which the examining magistrate has verified the reliability of the witness, barely nullifying the testimony made under section 86ter.
§ 5. The order of the investigating judge by which he grants or refuses full anonymity is not subject to any appeal.
§ 6. The King's Attorney holds a record of all witnesses whose identity, in accordance with this article, is kept secret.
Art. 86ter. The order by which the examining magistrate orders, in accordance with section 86bis, not to disclose the identity of the witness, is communicated by the clerk to the procurator of the King, and is notified by registered letter to the witness, to the person in respect of whom the public action is initiated in the course of the investigation or to the accused, to the civil party and to their advice with the summons
Before the hearing, the examining magistrate warns the witness that he may be held responsible for the facts committed in his testimony, which would constitute an offence under Chapter V of Title III or Chapter V of Title VIII of Book II of the Criminal Code.
The investigating judge shall proceed to the hearing of the witness at the place and at the time specified in the summons referred to in paragraph 1^er. The investigating judge shall take all reasonable measures to keep the identity of the witness secret. The Public Prosecutor's Office, the person in respect of whom public action is initiated in the course of the investigation or the accused, the civil party and their counsel may submit to the investigating judge, before and during the hearing of the witness, the questions they wish to ask. The investigating judge prevents the witness from answering any questions that may lead to the disclosure of his identity.
The investigating judge may order that the public prosecutor, the person in respect of whom the public action is initiated in the course of the investigation or the accused, the civil party and their counsel may only attend the hearing of the witness in another place, if this is necessary to preserve the anonymity of the witness. In this case, it uses a telecommunications system. The King sets out the minimum criteria to which this telecommunications system must meet.
The examining magistrate shall issue a record of the hearing and shall mention in detail, in addition to the information provided in section 47bis , 3°, the circumstances under which the hearing took place, the questions asked and the answers provided in the wording used or the reasons for which he prevented the witness from replying. He read out the minutes and after a statement by the witness that he persists, the examining magistrate and the clerk sign the minutes of the hearing. Such formalities shall be prescribed only if the testimony is null and void.
Art. 86quater. If there are specific and serious indications that the facts have been committed, which constitute an offence, provided for in chapter V of Title III or chapter V of Title VIII of Book II of the Criminal Code, by the witness whose identity has been kept secret pursuant to Articles 86bis and 86ter, as part of his testimony, the investigating judge is required to communicate the identity data of that witness to the Crown Prosecutor or the investigating judge. In this case, and until the time of the summons by the Public Prosecutor's Office or the referral to the competent court, the identity of the witness can only be revealed to those judges and to the court of investigation.
Art. 86quinquies. Without prejudice to the application of section 29, the testimonies obtained under sections 86bis and 86ter, may only be taken into consideration as evidence of an offence under section 90ter, §§ 2 to 4, or an offence committed within the framework of a criminal organization, referred to in article 324bis of the Criminal Code, or an offence under the law of June 16, 1993.
The Crown Prosecutor who, pursuant to section 29, has been notified of a crime or offence, manifested by a testimony obtained under articles 86bis and 86ter, shall take all necessary measures to ensure the complete anonymity of the witness. »
Art. 13. Article 90decies of the same Code is supplemented by the following paragraphs:
"He also reports on the application of articles 86bis and 86ter.
It informs Parliament of the number of instructions given to measures covered by these articles, the number of persons concerned, the offences concerned and the results obtained. »
Art. 14. In the same Code, an article 189bis is inserted, which reads as follows:
"Art. 189bis . The witness whose identity was kept secret under sections 86bis and 86ter, cannot be called as a witness at the hearing unless he consents to it. If the witness consents to testify at the hearing, he retains his complete anonymity. In this case, the court shall take the necessary measures to ensure the anonymity of the witness.
The court may order the investigating judge, either ex officio or upon requisition of the public prosecutor's office, or at the request of the accused, the civil party or their counsel, to rehear this witness or to hear a new witness pursuant to articles 86bis and 86ter for the purpose of manifesting the truth. This court decision is not subject to appeal. The court may decide that it will be present at the hearing of the witness by the investigating judge.
The conviction of a person may not be based exclusively, or to a decisive extent, on anonymous testimony obtained under sections 86bis and 86ter. They must be corroborated to a determinant extent by evidence gathered by other evidence. »
Art. 15. In the same Code, an article 315bis is inserted, which reads as follows:
"Art. 315bis . The witness whose identity was kept secret under sections 86bis and 86ter, cannot be called as a witness at the hearing unless he consents to it. The president read this testimony at the hearing and mentions that the witness's identity data were kept secret under sections 86bis and 86ter. If the witness consents to testify at the hearing, he retains his complete anonymity. In this case, the president takes the necessary steps to ensure the anonymity of the witness.
The President may order the investigating judge, either on his or her own motion or on the requisition of the public prosecutor's office or at the request of the accused, the civil party or their counsel, to rehear this witness or to hear a new witness pursuant to articles 86bis and 86ter for the purpose of manifesting the truth. The president may decide that he will be present at the hearing of the witness by the investigating judge. »
Art. 16. In article 341 of the same Code, a new paragraph shall be inserted between the second and third paragraph, as follows:
"If so, the President will notify the jury that the testimonies obtained pursuant to sections 86bis and 86ter, cannot be taken into consideration as evidence that, provided that they are corroborated to a determinant extent by other means of evidence. »
CHAPTER IV. - Final provision
Art. 17. This Act comes into force on the date fixed by the King and no later than the first day of the sixth month following the day in which it was published in the Belgian Monitor.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 8 April 2002.
ALBERT
By the King:
Minister of Justice,
Mr. VERWILGHEN
Seal of the state seal:
Minister of Justice,
Mr. VERWILGHEN
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Note
(1) Session 2000-2001.
House of Representatives.
Documents. - Bill, 50-1185 - No. 1. - Amendments, 50-1185 - n^bones 2 to 8. - Report, 50-1185 - No. 9. - Text adopted by the Commission, 50-1185 - No. 10. - Amendments, 50-1185 - n^bones 11 and 12. - Text adopted in plenary and transmitted to the Senate, 50-1185 - No. 13. - Draft amended by the Senate, 50-1185 - No. 14. - Amendment, 50-1185 - No. 15. - Report, 50-1185 - No. 16. - Text adopted in plenary and subject to Royal Assent, 50-1185 - No. 17.
Full report. - Meetings of 18 and 19 July 2001 and 14 March 2002.
Senate.
Documents. - Project transmitted by the House of Representatives, 2-876 - No. 1. - Amendments, 2-876 - n^bones 2 to 5. - Report, 2-876 - No. 6. - Text amended by the Commission, 2-876 - No. 7. - Amendments, 2-876 - No. 8. - Text amended by the Senate and referred to the House of Representatives, 2-876 - No. 9.
Annales. - Session of January 13, 2002.