New Criminal Code in Belgium: what corporates should expect? (2/5)
08/09/2021

The present newsletter is the second issue of a series of five, which will explore the large piece of legislation recasting the Belgian Criminal Code.

Our two first issues discuss the general spirit of the reform, as well as the modifications brought to general principles of criminal law that are relevant to legal entities and their managers. The three next publications will focus on the new regime of specific white-collar offences. Stay tuned!

Introduction

The Criminal Code that Belgian criminal courts apply everyday dates back from 1867. In its more than 150 years of existence, the Criminal Code has been amended many times to reflect the shift of social values and to apprehend the repressive needs of the modern society. These multiplied amendments severely undermined its overall readability, which makes the criminal law arsenal very difficult to understand for citizens and corporates.

A recast project has been at the agenda of governments since 2015 and appears to get closer to the finishing line. We offer to guide you through the changes that the draft bill provides for corporates and the individuals who manage them.

Sentences applicable to individuals

As already mentioned in our first issuance of this series related to the draft New Criminal Code, one of the most prominent part of the reform relates to the recast of the sentencing regime. The reform encapsulates a new sentencing regime with sentences categorised in eight levels, new types of sanctions and a clear distinction between the sentences applicable to legal entities and those applicable to individuals.

Just as for legal entities, sentences applicable to individuals are divided into levels (levels 7 and 8 for sentences punishing “crimes” and levels 1 to 6 for sentences punishing misdemeanors).

These sentences are summarized in the table below. Such sentences could for example be applied to an individual involved in offences committed in a business context (except for the sentences of levels 7 and 8 which are not applicable to white collar offences). This is all the more relevant since the abrogation of the “decumul regel / règle du décumul” has increased the risk for an individual to be sentenced together with a legal entity for business offences (see previous alert here).

The draft bill sets out accessory penalties which are already provided under the current Criminal Code, i.e.

  • fines,
  • confiscation,
  • deprivation on certain civil and political rights,
  • ban on carrying out a specific professional activity (e.g. member of a board of directors),
  • debarment from public procurement for 1 to 10 years,
  • closure of business facilities, and
  • publication of the decision of the criminal court.

The draft bill also adds one new accessory sentence which could apply to business offences: the “pecuniary penalty”: which is distinct from fines and confiscations and may amount to double or triple the expected or actual proceeds resulting from the offence, and

New regime applicable to concurrent offences

The current regime applicable to concurrent offences was deemed inefficient and incorrectly applied by criminal courts. Criminal courts indeed tend to systematically find that all offences with which a person is charged were all committed to achieve the same intent. The person found guilty for these offences is therefore sentenced to the heaviest sentence among all the different offences provided for each of the offences at stake, with no possibility for the judge to apply accessory sentences that are not considered as the “heaviest sentence”. Although this case law is contra legem, it avoids the need for criminal judges to apply overly complex rules on concurrent offences that are not linked by a same intent.

The New Criminal Code provides for a new regime under which (in a nutshell) :

  • a same event which constitutes several offences at the same time will be punished by the primary sentence of the higher sentence level of all the offences at stake. E.g. if a same event constitutes offences of level 2 and 3, the primary sentence of level 3 will be imposed. However, the judge can apply accessory sentences of all levels at stake;
  • separate events which constitute separate offences are punished by the heaviest sentence as a rule but, under certain circumstances, sentences could be added to each other.

Influence of the new sentencing regime of Book I of the New Criminal Code on lex specialis

Except if explicitly provided otherwise, Book I of the (current) Criminal Code criminal applies to criminal offences that are set out in specific legislation (e.g. Tax Codes, the Act of 2 August 2002 on the supervision of the financial sector, etc.). This principle would remain and it stands under the New Criminal Code.

However, while the current regime provides for an exception as to the taking into account of extenuating circumstances, this exception would be abrogated under the New Criminal Code. In other words, it would become possible for criminal judge to take such extenuating circumstances into account when determining the sentence applicable to a criminal offence provided under lex specialis. This modification is suggested on the basis that more and more offences are now provided in specific legislations, which invalidates the idea that only minor offences subject to relatively soft sentences would be set out in lex specialis. Nowadays, these specific legislations also carry very serious sentences, which justify that extenuating circumstances be taken into account.

Also, and as already mentioned earlier, one of the most striking innovations of the draft of Book I of the New Criminal Code is the division of sentences into eight different levels. The application of sentencing rules (such as recidivism, concurrent offences, the possible application of accessory sentences, etc.) is based on this division. In order to allow the application of Book 1 to the specific criminal laws that predate the entry into force of this Book, it will be necessary to provide for a conversion mechanism whereby the sentences provided for in specific laws are converted into sentences belonging to one of the eight separate levels.

Article 78 of the draft New Criminal Code therefore provides for a detailed conversion mechanism which, in a nutshell, consist in identifying the maximum sentence that could have been imposed by a criminal judge under the old regime and to identify the categories to which this same sentence belongs under the New Criminal Code.

This mechanism should obviously only apply insofar as the legislator has not itself adapted the 'old' offence to the rules of the new Book 1 of the Criminal Code. It is therefore only a default mechanism for cases where the legislator has not itself made an explicit choice.

Zie ook : Loyens & Loeff CVBA ( Mrs. Clémence Van Muylder )

[+ http://www.loyensloeff.com]

Mrs. Clémence Van Muylder Mrs. Clémence Van Muylder
Senior Associate
[email protected]

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