21 NOVEMBER 2016. - Act respecting certain rights of persons subject to interrogation (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The House of Representatives adopted and sanctioned the following:
CHAPTER 1^er. - General provisions
Article 1^er. This Act regulates a matter referred to in Article 74 of the Constitution.
Art. 2. This Act provides for the transposition of Directive 2013/48/EU of the European Parliament and the Council of 22 October 2013 on the right of access to a lawyer in the context of criminal proceedings and procedures relating to the European arrest warrant, the right to inform a third party from the deprivation of liberty and the right of private persons to communicate with third parties and with consular authorities and the partial transfer of Directive 2010/64/EU of the European Parliament and the Council of 20 October 2010
CHAPTER 2. - Amendments to the Code of Criminal Investigation
Art. 3. Section 47bis of the Code of Criminal Investigation, inserted by the Act of 12 March 1998 and amended by the Acts of 13 August 2011 and 25 April 2014, is replaced by the following:
"Art. 47bis. § 1^er. Before the hearing of a person to whom no offence is charged, the person to question is briefed on the facts about which the person will be heard and is communicated to him:
1) that it cannot be compelled to accuse itself;
(2) that his statements may be used as evidence in court;
3) that it may request that all questions posed to it and the answers it gives be reflected in the terms used;
(4) that it may request that a specific act of information or hearing be made;
5) that it may use the documents in its possession, without it being able to carry forward the examination, and that it may, at the time of the examination or at a later stage, request that these documents be attached to the transcript or the record.
All of these elements are accurately recorded in a report.
§ 2. Prior to the hearing of a suspect, the person to question is briefed on the facts about which the suspect will be heard and is communicated to him:
(1) that she shall be heard as a suspect and that she has the right, prior to the hearing, to consult with a lawyer of her choice or with a lawyer who is appointed to her, and that she may be assisted by him during the hearing, provided that the facts that may be charged to her relate to an offence that is punishable by deprivation of liberty; and, in the event that she is not deprived of her liberty, that she must take the necessary measures to be assisted;
2) that it has the choice, after having declined its identity, to make a statement, to answer questions posed to it or to silence;
3) that it cannot be compelled to accuse itself;
(4) that his statements may be used as evidence in court;
5) that it may request that all questions raised to it and the answers it gives be reflected in the terms used;
(6) if applicable: that it is not deprived of its liberty and that it may go and come at any time;
(7) that it may request that a specific act of information or hearing be made;
8) that it may use the documents in its possession, without it being able to carry forward the examination, and that it may, at the time of the examination or at a later stage, request that these documents be attached to the transcript or the record.
§ 3. If the hearing of a major suspect takes place on written summons, the rights referred to in paragraph 2, as well as the summary communication of the facts about which the person to question will be heard, may already be notified in that summons, which is attached to the transcript. In this case, the summons is a communication value for the rights referred to in paragraph 2 and the person concerned is presumed to have cooperated confidentially with a lawyer and to have taken the necessary measures to be assisted by him during the hearing. If the person concerned is not assisted by a lawyer, the rights referred to in paragraph 2, (2) and (3) are reminded of him or her before the hearing begins.
If the hearing referred to in paragraph 1^er a minor who attends without a lawyer at the hearing, the hearing may only take place after a confidential consultation between the minor and a lawyer, either at the police premises or by telephone. In order to contact the lawyer of his choice or another lawyer, and to be assisted by him during the hearing, contact is taken with the permanence organized by the Order of the French- and German-speaking Bars, and the "Orde van Vlaamse balies" or, if not, by the College's sticker or its delegate.
If the hearing of a major suspect does not take place on summons or if the summons does not mention the elements referred to in paragraph 2, the person concerned shall be informed of these elements and the hearing may be postponed once at the request of the person to question, in order to give him the opportunity to exercise his rights referred to in paragraph 2.(1). In this case, a date is set for the hearing to which paragraph 1 applies.^er. The person in question may voluntarily and responsibly waive the rights referred to in paragraph 2, paragraph 1^er(1). She must make a written waiver in a document dated and signed by her, in which the necessary information is provided to her on the possible consequences of a waiver of the right to counsel.
The data subject is informed that it may revoke its waiver.
If the hearing referred to in paragraph 3 concerns a minor, the minor may only take place after a confidential consultation between the minor and a lawyer, either at the police premises or by telephone. In order to contact the lawyer of his choice or another lawyer, and to be assisted by him during the hearing, contact is taken with the permanence organized by the Order of the French- and German-speaking Bars, and the "Orde van Vlaamse balies" or, if not, by the College's sticker or its delegate. If the lawyer, in agreement with the minor, requests, the hearing shall be postponed once so that the minor may consult a lawyer and be assisted by him during the hearing.
All elements in this paragraph are accurately recorded in a minutes.
§ 4. Without prejudice to paragraph 2, any person deprived of his or her liberty in accordance with articles 1^er, 2, 3, 15 bis and 16 of the Act of 20 July 1990 on preventive detention is informed that it enjoys the rights set forth in articles 2bis, 15bis, 16 and 20, § 1^erSame law.
§ 5. A written statement of rights referred to in paragraphs 2 and 4 is without undue delay to the person referred to in paragraphs 2 and 4 before the first hearing.
The form and substance of this declaration of rights is determined by the King.
§ 6. The following provisions apply to all hearings:
(1) The minutes mention precisely the time at which the hearing takes place, is eventually interrupted, resumes, and ends. He mentions precisely the identity of the persons involved in the hearing or part of the hearing and the time of their arrival and departure. It also mentions the particular circumstances and any circumstances that may illuminate the declaration or circumstances under which it was made on a particular day.
(2) The formulation of the communication of the rights referred to in paragraphs 1^er, 2 and 4 is adapted according to the age of the person or according to a potential vulnerability that affects his ability to understand these rights.
This is mentioned in the transcript.
(3) At the end of the hearing, the text of the hearing shall be read to the person interviewed, unless the person requests a reading of it. He was asked whether his statements should not be corrected or completed. This provision is also applicable to the audio hearing filmed, in accordance with Article 2bis, § 3, of the Act of 20 July 1990 on preventive detention.
4) If a person interviewed as a victim or suspect does not understand or speak the language of the proceedings or suffers from hearing or speech disorders, a sworn interpreter is called upon during the hearing. If no sworn interpreter is available, the interviewee is asked to rate his or her statement.
If a person heard in a different quality than that of a victim or a suspect does not understand or speak the language of the proceedings or suffers from hearing or speech disorders, or he or she is called upon a sworn interpreter, or his or her statements are noted in his or her language, or he or she is asked to record his or her statement.
When there is an interpretation, the minutes mention the assistance of a sworn interpreter and his name and quality. The costs of interpretation are borne by the State.
5) If, in the course of the hearing of a person who was initially not auditioned as a suspect, it appears that some evidence suggests that facts may be charged to him, that person is informed of the rights enjoyed by him under paragraph 2 and, where applicable, paragraph 4, and the written statement referred to in paragraph 5 shall be given to him.
6) The hearing is directed by the person conducting the hearing. The court briefs the lawyer on the facts on which the hearing relates.
7) The lawyer can attend the hearing, which may have already started.
Counsel's assistance during the hearing is intended to allow for control:
(a) respect for the right of the person questioned not to accuse himself or herself, as well as his freedom to choose to make a statement, to answer questions raised or to silence;
(b) the treatment of the person interviewed during the hearing, in particular the manifest exercise of illicit pressures or constraints;
(c) the notification of the defence rights referred to in paragraph 2, and, where appropriate, in paragraph 4, and the regularity of the hearing.
The lawyer may mention on the hearing sheet the violations of the rights referred to in (a), (b) and (c), which he considers to have observed. The lawyer may request that such information or hearing be carried out. He may ask for clarifications on questions that are raised. He may comment on the investigation and the hearing. However, he is not allowed to answer the suspect's place or interfere with the hearing.
All these elements are accurately recorded in the transcript.
8) Without prejudice to the rights of the defence, the lawyer is obliged to keep secret the information he acquires knowledge by providing his assistance during the hearings conducted during the course of the information or instruction and by providing his assistance in the confrontations and identification sessions of the suspects. Whoever violates this secret is punished by the penalties provided for in Article 458 of the Criminal Code.
9) No conviction may be pronounced against a person on the basis of statements made in violation of paragraphs 2, 3, 4 and 5), with the exception of paragraph 5, with respect to the prior confidential consultation or assistance of a lawyer during the hearing, or in violation of articles 2bis, 15bis, 20, § 1^er, and 24bis/1 of the Act of 20 July 1990 on pre-trial detention with respect to the prior confidential consultation or assistance of a lawyer during the hearing. ".
Art. 4. Section 62 of the Code, as amended by the Act of 13 August 2011, is replaced by the following:
"Art. 62. § 1^er. When the investigating judge goes to the scene, he is always accompanied by the King's attorney and the court clerk.
When the investigating judge organizes the descent to the place, which he manages, for the purpose of reconstructing the facts, the suspect and his lawyer, in accordance with the role that is devoured to him by article 47bis, § 6, 7), and the civil party and his lawyer have the right to attend.
Without prejudice to the rights of defence, the lawyer is obliged to keep secret the information he acquires knowledge by attending the descent on the organized premises for the reconstruction of the facts. Whoever violates this secret is punished by the penalties provided for in Article 458 of the Criminal Code.
§ 2. The provisions of section 47bis apply to the hearing of confrontation.
§ 3. The suspect's lawyer can attend the suspect identification session. At the end of the suspect identification session, the lawyer may request that his observations on the conduct of the session be recorded in the minutes."
CHAPTER 3. - Amendment of the Judicial Code
Art. 5. In section 495 of the Judicial Code, replaced by the Act of 4 July 2001, a paragraph is inserted between paragraphs 2 and 3:
"They organize the permanence referred to in articles 2bis, § 2, and 24bis/1 of the Act of 20 July 1990 on preventive detention in terms of how to contact a lawyer as quickly as possible, using modern means of communication, with the various contacts taken by users being kept. An annual dependant allowance in section 12 of the General Estimates is provided for the operational costs required to carry out this mission. The King determines the other methods of execution".
CHAPTER 4. - Amendments to the Act of 20 July 1990
on preventive detention
Art. 6. Section 2bis of the Act of 20 July 1990 on preventive detention, inserted by the Act of 13 August 2011, is replaced by the following:
"Art. 2bis. § 1^er. This provision regulates access to a lawyer within the time constraints of Articles 1^er, 1°, 2, 12, 15bis and 18, § 1^er.
§ 2. Anyone deprived of his or her liberty in accordance with articles 1^er or 2, or pursuant to a warrant to bring a person referred to in Article 3, is entitled, at that time and in advance of the first interrogation by the police or, failing that, by the King's attorney or the investigating judge, to consult confidentially with a lawyer of his choice without undue delay. In order to contact the lawyer of his choice or another lawyer, contact is taken with the permanence organized by the Order of the French-speaking and German-speaking Bars, and the "Orde van Vlaamse balies" or, if not, by the Order's sticker or his delegate.
From the moment when contact is taken with the chosen lawyer or the permanence, confidential consultation with the lawyer must take place within two hours. Confidential consultation may take place by telephone at the request of the lawyer in agreement with the person concerned. Confidential consultation may last thirty minutes and may, in exceptional cases, be extended to a limited extent by a decision of the person conducting the hearing. After the confidential consultation, the hearing can begin.
If the scheduled confidential consultation cannot take place within two hours, a confidential telephone consultation still takes place with the permanence, after which the hearing can begin. In case of force majeure, the hearing may begin after the rights referred to in article 47bis, § 2, 2) and (3), of the Code of Criminal Investigation have been reiterated to the person concerned.
§ 3. After having confidentially contacted by telephone with the lawyer he has chosen or with the lawyer of the permanence, and in agreement with him, the major suspect may waive the right to be assisted during the hearing which, if possible, may be the subject of a filmed audio recording in order to control the conduct of the hearing.
The person conducting the hearing, the King's prosecutor or the examining magistrate in charge may at any time decide on an ex officio basis that the hearing must be audio recorded.
All of these elements are accurately recorded in a report.
The digital recording of the hearing shall be communicated to the King's Prosecutor or, if any, to the examining magistrate in charge, with the minutes of the hearing. It is part of the criminal record and consultation or obtaining copies is done in accordance with articles 21bis and 61ter of the Code of Criminal Investigation. The suspect who is deprived of his liberty, however, has the right to know, in person or by his lawyer, of the recording of his hearing on a simple request from himself or his lawyer to the King's attorney or, if any, to the investigating judge in charge.
The recording of the hearing is kept on a digital basis.
§ 4. If the person interviewed does not understand or speak the language of the proceedings, or if he or she suffers from hearing or speech disorders, and if the lawyer does not understand or speak the language of the person to be heard, a sworn interpreter is used during the confidential prior consultation with the lawyer. The minutes mention the assistance of a sworn interpreter and his name and quality. The costs of interpretation are borne by the State.
§ 5. The person to be heard has the right to be assisted by his or her lawyer at hearings that take place within the time limits set out in paragraph 1^er.
The hearing shall be interrupted for a maximum of fifteen minutes for further confidential consultation, i.e. once at the request of the person to hear himself or at the request of his or her lawyer, or in the event of the disclosure of new offences that are not in relation to the facts that have been brought to his or her knowledge in accordance with Article 47bis, § 2 of the Code of Criminal Investigation.
§ 6. Only a person who is a major to hear may voluntarily and responsibly waive the rights referred to in paragraphs 2 and 5. Before making this decision, she may ask to speak confidentially by telephone with a permanent lawyer. She must make a written waiver in a document dated and signed by her, in which the necessary information is provided to her on the possible consequences of a waiver of the right to counsel. The data subject is informed that it may revoke its waiver.
§ 7. Without prejudice to the provisions of special laws, anyone who is deprived of his or her liberty in accordance with articles 1^er, 2 or 3, is entitled, if the suspect so requests, that a third party designated by the suspect be informed of his or her arrest by the person who interrogates or a person designated by the suspect, by the most appropriate means of communication.
The Crown Prosecutor or the investigating judge in charge of the case, depending on the state of the proceedings, may, by reason of decision, defer this communication for the duration necessary to protect the interests of the investigation, in case one of the following compelling reasons justifies it:
(a) an urgent need to prevent a serious violation of a person's life, liberty or physical integrity;
(b) an urgent need to prevent a situation in which criminal proceedings may be seriously jeopardized.
§ 8. Anyone deprived of his or her liberty in accordance with articles 1^er, 2 or 3 is entitled to medical assistance. The cost of medical assistance provided within the time limits referred to in section 1^er, 2 and 3 falls within the legal costs.
Without prejudice to the right under paragraph 1^er, that person has a subsidiary right to request a medical examination of his or her choice. The cost of this review is at its expense.
§ 9. In the light of the particular circumstances of the case, the Crown Prosecutor or the examining magistrate in charge, depending on the state of the proceedings, may, exceptionally, by a reasoned decision, waive the application of the rights provided for in paragraphs 2 and 5, in case one or more of the following compelling reasons justify:
(a) where there is an urgent need to prevent a serious breach of a person's life, liberty or physical integrity. The interrogations carried out without the rights provided for in paragraphs 2 and 5 are conducted for the sole purpose of obtaining essential information to prevent serious violations of a person's life, liberty or physical integrity and to the extent necessary for that purpose;
(b) where it is imperative that the authorities conducting the investigation act immediately to avoid seriously compromising criminal proceedings. The interrogations carried out without the rights provided for in paragraphs 2 and 5 are conducted for the sole purpose of obtaining essential information to avoid seriously jeopardizing criminal proceedings and to the extent necessary for this purpose.
§ 10. Without prejudice to section 184ter of the Code of Criminal Investigation, the Crown Prosecutor or the examining magistrate in charge, depending on the state of the proceedings, may exceptionally, by a reasoned decision, derogate temporarily from the application of the rights provided for in paragraphs 2 and 5 without undue delay, when it is impossible, due to the geographical distance of the suspect, to ensure the right of access to a lawyer in that case. This provision does not apply to a suspect within the State's borders as referred to in Article 7 of the Constitution. ".
Art. 7. In section 16 of the Act, last amended by the Act of 3 August 2016, the following amendments are made:
1° in paragraph 2, paragraph 3 is replaced by the following:
"The lawyer may make observations in accordance with Article 47bis, § 6, 7), of the Code of Criminal Investigation. ";
2° in paragraph 2, paragraph 5, the sentence "If the conditions are not met, the accused shall be released." is repealed;
Paragraph 4 is replaced by the following:
§ 4. If the accused does not yet have a lawyer, the examining magistrate reminds him that he has the right to choose a lawyer and he contacts the permanence organized by the Order of the French-speaking and German-speaking Bars, and the "Orde van Vlaamse balies" or, if not, by the Order's sticker or his delegate. These formalities are referred to in the transcript. ";
4° in paragraph 5, paragraph 2, the sentence "If this information is not available, the accused is released." is repealed;
5° in paragraph 6, paragraph 1^er, the sentence "If the judge fails to sign, the accused is released." is repealed;
6° it is inserted a paragraph 6bis, as follows:
" § 6bis. The accused who does not understand the language of the proceedings has the right to request a translation of the relevant passages of the warrant in a language that he understands to allow him to know the facts that are charged to him and to defend himself effectively, unless an oral translation has been provided to the accused. The application must be filed at the court of first instance, barely waived, within three days of the issuance of the arrest warrant. Translation is provided within a reasonable time.
If an oral translation has been provided to the accused, mention is made in the arrest warrant.
The costs of translation are borne by the State.".
Art. 8. In title I^er a chapter IV/1, entitled as follows:
"Chapter IV/1. - Counsel's assistance during the hearings during the pre-trial detention period."
Art. 9. In chapter IV/1, inserted by article 8, an article 24bis/1 is inserted, as follows:
"Art. 24bis/1. As from the meaning of the arrest warrant, the suspect in pre-trial detention has the right to consult with his lawyer confidentially in accordance with Article 20, § 1^er, to be assisted by a lawyer during the hearings that are performed and to interrupt the hearing in accordance with Article 2bis, § 5, paragraph 2. In the light of the particular circumstances of the case, the examining magistrate may decide to act in accordance with Article 2bis, §§ 9 and 10.
If the hearing takes place on written summons with summary communication of the facts, the right to consult with his lawyer confidentially, the right to be assisted by his lawyer during the hearing, the right to interrupt the hearing once in accordance with article 2bis, § 5, paragraph 2, and the rights provided for in article 47bis, § 2, (2) and (3), of the Code of Criminal Procedure, the person concerned is presumed to have consulted his lawyer.
Only the person who is a major may deliberately and in a thoughtful manner waive the right to be assisted by a lawyer during the hearing in a document dated and signed by him, in which the necessary information is provided to him on the possible consequences of a waiver of the right to counsel. The data subject is informed that it may revoke its waiver.
The person conducting the hearing shall contact the permanence provided for in Article 2bis, § 2, in order to summon to the hearing the chosen lawyer or lawyer who replaces it, mentioning the place, day and time. A lawyer who assists a suspect who is in pre-trial detention or who succeeds another lawyer immediately informs the permanence referred to in article 2bis, § 2 of his intervention.
The provisions of Article 2bis, §§ 2 and 3, shall apply if the hearing does not take place on written summons or if the summons and hearing are not spaced from a free day. "
CHAPTER 5. - Amendments to the Act of 19 December 2003 on the European arrest warrant
Art. 10. In Article 10/1 of the Law of 19 December 2003 on the European Arrest Warrant, inserted by the Law of 25 April 2014, the following amendments are made:
(a) the first sentence of the second sentence is supplemented by the words "as well as the right of a third party to be informed of his deprivation of liberty";
(b) the third sentence of the second sentence is supplemented by the words "and with regard to the right of a third person to be informed of his deprivation of liberty";
(c) it is inserted a 2° /1, written as follows:
"2° /1 of his right to appoint a lawyer in the issuing state. The lawyer in the issuing State assists the lawyer in Belgium by providing him with information and advice, so that the person who is the subject of the European arrest warrant effectively exercise his rights arising out of Framework Decision 2002/584/JAI;".
Art. 11. In chapter III, section 2, subsection 1^re, of the same law, an article 10/3 is inserted, as follows:
"Art. 10/3. § 1^er. When the person concerned wishes to exercise his right to appoint a lawyer in the issuing State and has no lawyer in that Member State, the Public Prosecutor's Office shall immediately inform the issuing authority.
§ 2. The right of the person concerned to appoint a lawyer in the issuing State does not affect the time limits set out in this Act.".
Art. 12. In the same Act, an article 34/1 is inserted, as follows:
"Art. 34/1. When the person concerned invokes his right to appoint a lawyer in Belgium and does not yet have a lawyer, the Public Prosecutor's Office contacts the permanence organized by the Order of French-speaking and German-speaking Bars and the "Orde van Vlaamse balies". The Public Prosecutor's Office shall transmit without undue delay the information available to the enforcement authority.".
CHAPTER 6. - Entry into force
Art. 13. This Act comes into force on November 27, 2016.
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 21 November 2016.
PHILIPPE
By the King:
Minister of Justice,
K. GEENS
Seal of the state seal:
Minister of Justice,
K. GEENS
____
Note
House of Representatives
(www.lachambre.be):
Documents 54-2030
Full report: November 10, 2016.