"Speech is silver, silence is golden" – or does the gold belong to the crown witness?

Belgium has recently seen the role of the crown witness incorporated in the Code of Criminal Procedure through the Act of 22 July 2018. Persons under criminal investigation, or those convicted and who are willing to provide significant information on other suspects to the prosecuting authorities, can obtain a reduced sentence or other advantages.

The possibility of waiver or reduced sentences for those willing to reveal, for example, the identity of a drug trafficker already existed in specific legislation. Nevertheless, there were no general provisions on crown witnesses. Although one would expect to encounter crown witnesses in organised crime or terrorism cases, they can now be relied upon similarly in white-collar cases since the entry into force of the new Act on 17 August 2018.

The public prosecution service can rely on a crown witness when investigating crimes included in the list of offences for which the interception of communication is permitted. Thus, crown witnesses cannot appear in all criminal investigations. The list includes serious economic financial offences such as bribery and money laundering. For example, a civil servant who accepted bribes could turn against the company that offered him advantages in exchange for some favours.

Crown witnesses may only be relied upon when this is necessary for the investigation and when other investigative measures do not seem sufficient.

The crown witness need not necessarily have been involved in the facts which are under investigation. Thus, it is possible that a prisoner could overhear statements made by another person who is under investigation for facts unrelated to his own case and subsequently testify about the overheard statements.

The statements of the crown witness on the involvement of third parties, and, where applicable, on his or her own involvement, should be substantial, revealing, complete and sincere. Crown witness' statements are only admissible in court if they are supported by other evidence.
The public prosecutor and the crown witness must conclude a memorandum which must include certain details, such as the facts about which the witness will make statements and the commitment made to the crown witness.

The extent of the commitment should be proportionate in the light of the offence the crown witness has committed and the offence concerning which he will make statements, while taking into account the seriousness of the consequences. Provided that the crown witness has not used violence or threats while committing offences, he can be convicted without receiving any punishment. Reduced fines or confiscation orders are also within the range of possibilities.

In addition, the public prosecutor will request a sentence which the crown witness will face in the event he does not respect the conditions set out in the memorandum.

The commitment can be revoked in a number of cases, e.g. if the crown witness does not make any statement or knowingly and willingly renders incorrect statements, as well as in the event that the witness does not compensate for the damage caused by the offences he has committed.
In the light of the case law of the Belgian Constitutional Court on criminal settlements, it comes as no surprise that the new Act includes judicial review in cases where a crown witness is relied upon.


Tom Bauwens

Catherine Van de Heyning
Senior Attorney

Stijn Lamberigts

Related : Eubelius

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