Last Thursday (June 2nd) an important decision of the Belgian Constitutional Court partially annulled article 216bis § 2 of the Code of criminal procedure with regard to the settlement and the resulting end of criminal proceedings. The Court stated that article 216bis § 2 violates a set of fundamental rights, including the right to a fair trial and the principle of judicial independence.

Also available in Dutch and in French

The Constitutional Court received four prejudicial questions that were posed by the Chamber of Indictment of the Court of Appeal of Gent in a case regarding suspicious financial transactions. The defendant stated himself being discriminated by the Public Prosecutor, who in application of the articles 216bis and 216ter of the Code of criminal procedure could decide whether or not to grant a settlement, even after criminal proceedings were started and without any judicial verification of the decision’s justification.

The decision of the Constitutional Court stated that §2 of article 216bis violates articles 10 and 11 of the Belgian Constitution, combined with the right to a fair trial and the principle of judicial independence as stated by article 151 of the Constitution, article 6.1 of the European Convention of Human Rights and article 14,1 of the International Covenant on Civil and Political Rights, as far as it grants the public prosecutor the power to end criminal proceedings that were already initiated or that were already pending before the Courts, by means of settlement, without any actual judicial verification.

The Constitutional Court does not criticize the fact that the Public Prosecutor has the possibility to settle a case that has already been initiated or is already pending before the Courts, but questions arise with the lack of substantive judicial verification. The fact that a judge merely has to verify whether all formal conditions for a settlement are satisfied, is, according to the Constitutional Court, not sufficient. According to the Constitutional Court the judge should be able to properly verify the settlement concluded by the Public Prosecutor, including the proportionality and the opportunity of such settlement.

The annulment of article 216bis §2 will not have any influence on settlements concluded and validated in the past: the decision will not change anything in cases where the settlement has already lead to closure of the criminal proceedings. The Constitutional Court states that the article will remain valid until the decision has been published in the Belgian Official Journal, which could take a few weeks. After the decision has been published, it will be up to Minister of Justice Koen Geens to amend the article and to extend the judicial verification during settlement proceedings.

Constitutional Court - Decision 2016/83 (French version / Dutch version)