New Criminal Code in Belgium: what corporates should expect?
06/08/2021

The present newsletter is the first issue of a series of five, which will explore the large piece of legislation recasting the Belgian Criminal Code. Our two first issues will discuss the general spirit of the reform, as well as the modifications brought to general principles of criminal law. The three next publications will focus on the new regime of specific white-collar offences.

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.

Parliamentary process

The project to dust off the more-than-150-year-old Criminal Code dates back to 2015 and has had several twists and turns. Two prominent law professors, D. Vandermeersch and J. Rozie, were at the time asked by the then Minister of Justice Koen Geens to work on a reform of the Criminal Code and the “Criminal Law Reform Commission” (the “Commission”) was set up to that end.

In the course of 2016, the Commission published a preliminary draft of a new Book 1 of the Criminal Code. On 20 January 2017, that preliminary draft for the modernization of Book 1 was approved by the Council of Ministers. By mid-2018, the commission had finished Book 2. Approval for the reform of Book 2 followed on 20 July 2018.

The fall of the Michel I government at the end of 2018 prevented a vote in Parliament. The text was then changed here and there (sometimes unexpectedly) and, in 2019, the text was submitted to Parliament, but did not get to a vote. On 24 September 2019, the identical text was again submitted to Parliament but did not get through either. In the next legislature, on 12 February 2020, a new bill was introduced, which was in line with the Commission's vision.

After that, the recast project stopped making progress, partly due to the COVID-19 pandemic. However, the government in place agreed to restart discussions from the initial draft bill prepared by the two eminent law professors. They therefore agreed to resume their work as from January 2021, with the help of a third expert (J. De Herdt).

In spring 2021, the Minister of Justice Vincent Van Quickenborne announced that the draft bill introducing a new Criminal Code was supposed to be discussed before summer by the Parliamentary Commission dedicated to Justice matters, with a view to rapidly submit a draft bill to the Federal Parliament.

It is said that the goal is to have the reform entering into force in the course of 2022.

General goals of the reform

The draft bill contains numerous proposals intended to fulfill three goals: modernization, simplification and better readability of the new provisions:

Better readability: the members of the Commission made an impressive work to improve the readability of the Criminal Code. For example, each article in Book 1 and Book 2 is given a heading specifying its content, and complex concepts are first defined (e.g. grounds for justification, exemption from guilt, non-accountability and excuse);

Simplification: Several examples can be given in terms of simplification : (1) offences are now classified into two categories (instead of three), i.e. crimes and misdemeanors (the concept of “contraventions / overtredingen” will cease to exist) ; (2) rules applicable to punishable attempts and punishable participation are simplified (for example: the distinction between co-author and accomplice is abolished) ; (3) sentences are classified into 8 categories, which increases foreseeability; (4) the consequences of the application of mitigating circumstances are mentioned at each sentencing level, making it easier for the judge to assess them and for the parties to the trial to request their application;

Modernization: concepts developed by the case law are now clearly defined in the law. For example, the concept of “mens rea” (élément moral) is now explicitly stated and defined in the law.

General structure of the draft new Criminal Code

Just as the current code, the new Criminal Code includes two books; the first book is devoted to definitions and general principles of criminal law while the second book sets out the offences.

The general structure of the second book has however been entirely restructured to reflect the shift of social values. It includes the following seven sub-sections : (1) serious violations of international humanitarian law; (2) offences against individuals ; (3) offences against public security; (4) forgery, (5) offences against property, (6) economic offences, (7) offences against the State and its functioning. Most of white-collar offences are gathered into the 4th, 5th and 6th sub-sections.

Classification of sentences into eight different levels

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 (such as the closure of facilities, the debarment from public procurement tender, or a pecuniary sanction fixed on the basis of the profit generated by the offence) and a clear distinction between the sentences applicable to legal entities and those applicable to individuals.

With a view to simplification, the draft bill profoundly modifies the repressive arsenal applicable to legal entities. Among other things, it provides for new penalties and it abolishes the overly complicated table for conversion of prison sentences into fines for companies.

Just as for individuals, sentences are divided into levels (levels 7 and 8 for sentences punishing “crimes” and levels 1 to 6 for sentences punishing misdemeanors) and the applicable sentences for each level are determined by law, including after admission of mitigating circumstances, without having to go through any conversion mechanism.

 

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 (such as the closure of facilities, the debarment from public procurement tender, or a pecuniary sanction fixed on the basis of the profit generated by the offence) and a clear distinction between the sentences applicable to legal entities and those applicable to individuals.

With a view to simplification, the draft bill profoundly modifies the repressive arsenal applicable to legal entities. Among other things, it provides for new penalties and it abolishes the overly complicated table for conversion of prison sentences into fines for companies.

Just as for individuals, sentences are divided into levels (levels 7 and 8 for sentences punishing “crimes” and levels 1 to 6 for sentences punishing misdemeanors) and the applicable sentences for each level are determined by law, including after admission of mitigating circumstances, without having to go through any conversion mechanism.

 

Sentencing level

Primary sentence

In case of mitigating circumstances

 

 

Sentences applicable to “crimes”

8

EUR 4,000,000 to 5,760,000

Possibility to apply Primary Sentences of levels 7 to 3

 

7

EUR 1,600,000 to 4,000,000

Possibility to apply Primary Sentences of levels 6 to 3

 

 

 

 

 

 

Sentences applicable to “misdemeanours”

6

EUR 1,200,000 to 1,600,000

Possibility to apply Primary Sentences of levels 5 to 2

 

5

EUR 800,000 to 1,200,000

Possibility to apply Primary Sentences of levels 4 to 2

 

4

EUR 600,000 to 800,000

Possibility to apply Primary Sentences of levels 3 or 2

 

3

EUR 360,000 to 600,000

Possibility to apply Primary Sentences of levels 2 or 1

 

2

·       EUR 20,000 to 360,000; or

·       provision of services to the society for a value between EUR 20,000 and 360,000; or

·       probation period for 1 to 2 years

·       cumulative application of two level 1 sentences

·       mere statement of guilt (“declaration de culpability”)

 

Possibility to apply Primary Sentences of level 1

1

·       EUR 200 to 20,000; or

·       provision of services to the society for a value between EUR 200 and 20,000; or

·       probation period for 6 to 12 months; or

·       a ban on carrying out an activity within the scope of the company's object for 1 to 10 years; or

·       confiscation; or

·       pecuniary penalty determined based on the proceeds of the offence; or

·       debarment from public procurement tender for 1 to 10 years; or

·       mandatory closure of business facilities

Accessory sentence instead (if explicitly foreseen by the Criminal Code)

 

 

 

It should be noted that the fines provided in the draft bill will no longer have to be multiplied by the “décimes additionnelles / opdecimes” as it is the case under the current regime (which currently results in a eightfold increase of the fines set out in the Criminal Code). 

In addition, each primary sentence can be supplemented with an “accessory” penalty if deemed appropriate by the criminal court and explicitly provided by the law for the offence at stake. Most of these accessory sentences can also be imposed as a level 1 primary sentence.

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

  • confiscation,
  • ban on carrying out an activity within the scope of the company's object for 1 to 10 years,
  • closure of business facilities, and
  • publication of the decision of the criminal court.

The draft bill also adds two new accessory sentences:

  • 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
  • the debarment from public procurement tender for 1 to 10 years.

 

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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