The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
The organisation of the public prosecution service
The organisation of the prosecution service is dealt with in the Judicial Code, whereas its tasks and powers are regulated in the CCP. Furthermore, it should be noted that the Constitution contains some important rules with regard to the prosecution service.
According to Sect. 153 of the Constitution the members of the prosecution service are appointed and dismissed by the King. In this respect is should be noted that the Act of December 22, 1998 introduced a system of internal supervision with a view to maintain, or even improve, the quality of work of the public prosecutors. This system of regular assessment of public prosecutors is regulated in Sect. 151 of the Constitution and in Sect. 259 of the Judicial Code.
As in most other countries, the prosecution service in Belgium is structured according to a hierarchical model. The bottom of the pyramid consists of 27 prosecutors (procureurs du roi), one for each judicial district. They, and their substitutes, are responsible for exercising public action at law in regular criminal matters at the level of the police courts and the correctional courts (Sect. 150 Judicial Code). However, one set of criminal offences – namely those in social and labour matters – is excluded from their competence and falls within the jurisdiction of 22 so-called labour auditors (auditeurs de travail) and their substitutes (Sects. 152–155 Judicial Code). Furthermore, it has to be noted that there are substitutes specialised in relation to offences in the field of tax law. As an exception to the general rule, these substitutes can exercise penal action at law within districts other as their own, which resort under the same Court of Appeal. When these substitutes operate outside their own district, they act under the direction of the public prosecutor of the district where the action takes place (Sect. 151bis Judicial Code).
The Act of December 22, 1998 also created a Council of prosecutors, that is essentially an advisory body responsible for giving opinions – either on their own initiative or at the request of the board of prosecutors-general – on the harmonisation and uniform application of laws and regulations on the one hand, and on any question relating to the role of the public prosecution service on the other hand. The Council of prosecutors should not only increase the interaction among the district prosecution offices, but must also feed the discussions inside the board of prosecutors-general. From this point of view, it is provided that the Council reports to the Minister of Justice, the board of prosecutors-general and the federal prosecution service (Sect. 150bis Judicial Code).
The Prosecutors-General
Both the prosecutors and the labour auditors exercise their functions under the hierarchical supervision of five Prosecutors-General (procureurs-généraux), one for each court of appeal, assisted by their substitutes and by advocates-general (Sect. 143 subs. 1-2 Judicial Code). The five Prosecutors-General together form the assembly or the board of Prosecutors-General (collège des procureurs-généraux) (Sect. 143bis Judicial Code). This board was officially institutionalised by the Act of March 4, 1997 and is competent all over the country. Its threefold task concerns the coherent implementation and co-ordination of policy on crime; the good general and co-ordinated operation of the public prosecution service as a whole; and the provision of information and advice concerning the public prosecution service to the Minister of Justice (Sect. 143bis subs. 2- 3 Judicial Code).
One of the main aspects of the Act of March 12, 1998 already mentioned is a redefinition of the role of the offices of the Prosecutors-General. These offices are to assume a new – and so to speak more contemporary – function in at least three directions, namely: by securing a coherent elaboration and co-ordination of the policy on crime in their jurisdiction, by supporting the district offices and the offices of the labour auditors, and by guaranteeing the quality of the organisation and the functioning of the district officers and the offices of the labour auditors.
The federal prosecution service
With a view to the strengthening of the prosecution of organised crime, the Acts of December 22, 1998 and June 21, 2001 created the federal prosecution service. This service is directed by the federal prosecutor, who is assisted by eighteen federal magistrates. In principle, the federal prosecution service is competent to execute penal action in relation to certain crimes against the safety of the State, organised crime, terrorism, etc. The federal prosecutors also have to co-ordinate the execution of penal action at law in general and to facilitate international co-operation in criminal matters. Furthermore, some of the federal prosecutors are in charge of the supervision on the general and specific operation of the federal police (Sect. 144bis Judicial Code).
The Prosecutor-General at the Cour de Cassation
Finally, the Prosecutor-General at the Supreme Court (Cour de Cassation) also forms part of the public prosecution service, but is not its hierarchical superior. This Prosecutor-General is in principle not involved in public action at law; he mainly gives legal opinions in the interests of upholding the law and achieving consistency in the case law (Sects. 141-142 Judicial Code).
Criminal policy and prosecution policy
In Belgium, over the years legendary discussions have taken place about the exact relationship between the public prosecution service and the Minister of Justice. These discussions were part of a broader debate on the issue of the position of the public prosecution service in the state structure, and more specifically, on the question whether it belongs to the judicial branch or to the executive branch of the trias politica, or to both branches at the same time. In our opinion, the public prosecution service must be situated within the administrative power from an organisational point of view, whereas it had to be regarded part of the judicial power from a functional point of view.
The theoretical discussion to which power the public prosecutor office actually belongs sometimes resembles the abstract discussion on the exact gender of the angels. Nevertheless, it concerns the core of the relationship between the public prosecution service and the Minister of Justice, or in other words, the important question whether the public prosecution service is independent from the Minister of Justice or whether it is subordinated to it. In this context, it should be noted that since the Act of March 4, 1997, which formally established the board of Prosecutors-General, it is explicitly stated that the Minister of Justice determines the guidelines of policy on crime, including policies on investigation and prosecution, after having collected advice from the board of prosecutors-general. These guidelines are binding upon all members of the prosecution office and it is the task of the Prosecutors-General to implement them within their own territory (Sect. 143ter Judicial Code). Even if it had become clear that the public prosecution office is subordinated to the Minister of Justice, it would not mean that it had been reduced to a blind instrument in the Minister’s hand. It is indeed the board of prosecutors-general who bears the important responsibility for the further elaboration of criminal policy, for the co-ordination of it in a coherent manner, and for the adequate functioning of the public prosecution service in its entirety (Sect. 143bis subs. 2 Judicial Code).
The Act of March 4, 1997 has not remained a dead letter. Over the last few years, several fields of criminal policy have indeed been covered by guidelines from the Minister of Justice and/or the board of prosecutors-general. Reference can for instance be made to the joint guideline of 1998 on the prosecution of the possession and small trade in drugs; the ministerial guideline of 1998 on a uniform prosecution policy for driving under influence of alcohol, drugs or medicine; the joint guideline of 1999 relating to mediation in penal matters; and the ministerial guideline of 1999 concerning the investigation and prosecution of the trade in human beings and child pornography. In the light of these developments, it is clear that the Act of March 4, 1997 has not only produced an important reorganisation at the top of the prosecution service, but that it has also had a strong influence on the policies carried out. With regard to this last aspect, the question arises whether the prosecution service is sufficiently equipped to continue to formulate policy objectives, to control their implementation and to evaluate their results and effectiveness.
Duties and powers of the public prosecution service
Since criminal law aims at protecting public order, the right to react to an offence – i.e. the right to prosecute – is not left to the individual, but attributed to the public prosecution service (Sect. 1 Preliminary Title CCP). This service decides whether in a certain case further investigations should be made, whether it is necessary to summon suspects before the criminal court, and – in more serious or complicated cases – whether it is necessary to defer the matter to an investigating judge. However, the public prosecution service has no complete monopoly over the prosecution.
Firstly, it should be noted that specific legislation can attribute a right to prosecute to certain administrations. The most important example in this respect is the legislation on Customs and Excises, in which a (limited) right to prosecute is attributed to the Treasury.
Secondly, the victim as a partie civile can bring a civil action for compensation for the damage caused by the offence before the criminal courts (Sect. 4 Preliminary Title CCP). If the public prosecutor has already brought the case before a judicial authority – i.e. either the investigating judge in the judicial inquiry or the criminal courts –, the only effect of the civil action of the partie civile will be that the victim becomes a party in the pending criminal procedure. However, if the public prosecutor has not yet brought the case before a judicial authority, the victim by constituting himself partie civile – either by requesting the investigating judge to start a judicial inquiry in the given case or by summoning the suspect directly before the trial court – actually launches the prosecution and institutes the public action at law.
In a civil law country like Belgium, the public prosecution service has often been characterised as the engine and the watchdog of the criminal procedure. This expression refers to its omnipresent position in criminal matters: it is the public prosecutor who normally starts the criminal procedure; his office looks after the composition of the criminal file; he closely watches the criminal proceedings as they take place; and – finally – his office overlooks the execution of punishments and other measures pronounced by the courts.
Nevertheless, highlighting the formal competence of the public prosecutor to initiate a criminal procedure should not take attention away from the fact that his task is far broader. It is indeed totally impossible for the public prosecution service to bring all the cases it receives from the police and from inspection services – well over one million per year – before the criminal courts. So, the public prosecutor possesses an extensive discretionary power not to refer these cases to court, but to dispose of them in alternative ways, i.e. through dismissal, transaction or mediation in penal matters.
Political accountability the prosecution policy
The responsibility of the Minister of Justice with regard to the formulation of a policy on crime and on prosecution implies that he is politically accountable in this respect, and that he can be questioned by Parliament about these policies. Even questions about individual prosecution decisions are possible. However, it should be stressed that the Minister of Justice cannot act in the place of the public prosecution service. Nevertheless, in exercising his right of supervision the Minister of Justice can request a report on the actions taken by the public prosecutors, as well as order proceedings to be initiated in a particular case (Sect. 274 CCP). The Minister of Justice can not only give an order to prosecute, although this right seems to be seldom used, he is also entitled to count on the magistrates of the public prosecution service to ensure the smooth running of the criminal justice system. Nevertheless, the Minister of Justice does not have the right to dictate to the public prosecutor in charge of a case what he must say in court – though the pen be slave, words are free –, nor the right to forbid a prosecution. In this context, it must also be stressed that Sect. 151 subs. 1 of the Constitution explicitly states that the prosecution service enjoys independence in carrying out individual investigations and prosecutions, without prejudice to the right of the Minister of Justice to order proceedings or issue binding guidelines on criminal policy, however.
The decision not to prosecute
The public prosecution service has traditionally been entitled to apply the principle of discretion as to the disposition of criminal cases. In technical terms, this means that it possesses the right not to prosecute cases, or the possibility to waive the right to prosecute. In many instances, the prosecutor’s decision not to prosecute is fairly evident, namely when prosecution is or has become (nearly) impossible. Quite frequently, offenders of a given criminal act remain unknown; in other cases there may be suspicions against one or more persons but insufficient evidence to bring a case before court. In these situations and of course also when the suspect is no longer alive, or when criminal proceedings have become prescribed, the decision not to prosecute leads to technical dismissal.
However, for decades it has been accepted that the public prosecutor may also resort to other reasons for his decision not to prosecute, the so-called dismissals on policy grounds. The public prosecutor may indeed consider that certain offences, though criminal by law, are relatively unimportant to give rise to prosecution. In this respect, mention should also be made of the traditional prosecution practice of praetorian probation, whereby dismissals on policy grounds are combined with certain conditions imposed on the suspect, e.g. the prohibition to visit certain places or to meet certain people. Nevertheless, with the rise of newer mechanisms for the settlement of cases out of court over the last two decades, this practice seems to have diminished.
It should be noted that the distinction between technical dismissals and dismissals on policy grounds is not always as clear-cut as it may appear and that a grey area exists. Empirical research has suggested that some technical dismissals are better categorised as policy dismissals, because prosecutors were not able or not willing to mobilise additional resources to further investigate the case and to bring the necessary evidence to the surface.
Over the last couple of years, and particularly in the aftermath of the Dutroux case, several initiatives were taken that directly or indirectly impacted on the traditional system of dismissals. While confirming the principle of discretion, it was stipulated in 1998 that the public prosecutor has to give reasons for any decision to dismiss a case (Sect. 28quater CCP). This decision should also be communicated to the person who has made a so-called declaration of being harmed by the facts concerned (Sect. 5bis Preliminary Title CCP). Another approach comes from the board of prosecutors-general, who have issued several guidelines and circular letters that have brought about a more coherent policy in dismissals since 1997, e.g. in cases of the use and trade in narcotics. All of these initiatives have been geared towards reducing the traditionally wide margin of discretion of the public prosecutors, or alternatively speaking, to increasing the degree of accountability of the public prosecution service. However, what is still lacking to date is a more integrated vision on dismissals, which should cover at least two aspects. First of all, an answer should be given to specific legal questions, such as the broad categories of offences liable to dismissal, the legal effects of dismissals, the procedure of communication, etc. Secondly, a broader vision is needed at policy level, whereby the dismissal rates themselves are discussed and strategies can be devised to reduce them, e.g. by making more use of newer mechanisms and/or by strengthening the co-operation of public prosecution service and other partners in the criminal justice process.
The binary choice between prosecution and dismissal, has to be differentiated to a certain extent. The public prosecutor has indeed wider powers for the disposition of criminal cases outside court, i.e. the transaction and mediation in penal matters.
Transaction
The public prosecutor has the competence to propose the suspect the dissolution of the penal action at law on payment of a sum of money, which is called a transaction or friendly settlement (Sect. 216bis CCP). The sum to be paid cannot be higher than the statutory maximum of the fine. Furthermore, a transaction is only possible on the condition:
- that the public action at law can be, but has not been, instituted;
- that the criminal offence is made punishable with a fine and/or a prison sentence of maximum five years;
- that the public prosecutor holds the opinion that in court he would request a fine only – with or without a seizure of goods –; and
- that the damage caused has been compensated completely, or the suspect has acknowledged his civil liability.
The transaction is a unilateral proposal by the public prosecutor to the suspect. If the suspect pays the sum of money within the time-limit set out by the public prosecutor, the prosecution against him will be dropped. It is then not possible to re-open the case at a later moment. Moreover, the transaction will not be registered on the criminal record of the offender.
Mediation in penal matters
In 1994 a regulation for so-called mediation in penal matters was added to the CCP (Sect. 216ter). Firstly, this makes it possible for the public prosecutor to propose the suspect to make up for the harm done to the victim. In that respect the public prosecutor can act as a mediator between two parties. Secondly, the public prosecutor can also propose certain other conditions to the suspect, namely, when the suspect argues that the offence has a connection with an alcohol or drug problem, a medical treatment or therapy or training sessions.
Generally speaking, mediation in penal matters is possible in relation to offences for which the public prosecutor considers no prison sentence of more than two years should be imposed. This evaluation has to be made in a practical way, taking into account the consequences of possible mitigating circumstances. The consequence of this is that mediation in penal matters is possible for offences which carry a statutory prison sentence of 15 to 20 years in abstracto.
The Relation between the Public Prosecutor and the Minister of Justice
The organisation of the public prosecution service
The organisation of the prosecution service is dealt with in the Judicial Code, whereas its tasks and powers are regulated in the CCP. Furthermore, it should be noted that the Constitution contains some important rules with regard to the prosecution service.
According to Sect. 153 of the Constitution the members of the prosecution service are appointed and dismissed by the King. In this respect is should be noted that the Act of December 22, 1998 introduced a system of internal supervision with a view to maintain, or even improve, the quality of work of the public prosecutors. This system of regular assessment of public prosecutors is regulated in Sect. 151 of the Constitution and in Sect. 259 of the Judicial Code.
As in most other countries, the prosecution service in Belgium is structured according to a hierarchical model. The bottom of the pyramid consists of 27 prosecutors (procureurs du roi), one for each judicial district. They, and their substitutes, are responsible for exercising public action at law in regular criminal matters at the level of the police courts and the correctional courts (Sect. 150 Judicial Code). However, one set of criminal offences – namely those in social and labour matters – is excluded from their competence and falls within the jurisdiction of 22 so-called labour auditors (auditeurs de travail) and their substitutes (Sects. 152–155 Judicial Code). Furthermore, it has to be noted that there are substitutes specialised in relation to offences in the field of tax law. As an exception to the general rule, these substitutes can exercise penal action at law within districts other as their own, which resort under the same Court of Appeal. When these substitutes operate outside their own district, they act under the direction of the public prosecutor of the district where the action takes place (Sect. 151bis Judicial Code).
The Act of December 22, 1998 also created a Council of prosecutors, that is essentially an advisory body responsible for giving opinions – either on their own initiative or at the request of the board of prosecutors-general – on the harmonisation and uniform application of laws and regulations on the one hand, and on any question relating to the role of the public prosecution service on the other hand. The Council of prosecutors should not only increase the interaction among the district prosecution offices, but must also feed the discussions inside the board of prosecutors-general. From this point of view, it is provided that the Council reports to the Minister of Justice, the board of prosecutors-general and the federal prosecution service (Sect. 150bis Judicial Code).
The Prosecutors-General
Both the prosecutors and the labour auditors exercise their functions under the hierarchical supervision of five Prosecutors-General (procureurs-généraux), one for each court of appeal, assisted by their substitutes and by advocates-general (Sect. 143 subs. 1-2 Judicial Code). The five Prosecutors-General together form the assembly or the board of Prosecutors-General (collège des procureurs-généraux) (Sect. 143bis Judicial Code). This board was officially institutionalised by the Act of March 4, 1997 and is competent all over the country. Its threefold task concerns the coherent implementation and co-ordination of policy on crime; the good general and co-ordinated operation of the public prosecution service as a whole; and the provision of information and advice concerning the public prosecution service to the Minister of Justice (Sect. 143bis subs. 2- 3 Judicial Code).
One of the main aspects of the Act of March 12, 1998 already mentioned is a redefinition of the role of the offices of the Prosecutors-General. These offices are to assume a new – and so to speak more contemporary – function in at least three directions, namely: by securing a coherent elaboration and co-ordination of the policy on crime in their jurisdiction, by supporting the district offices and the offices of the labour auditors, and by guaranteeing the quality of the organisation and the functioning of the district officers and the offices of the labour auditors.
The federal prosecution service
With a view to the strengthening of the prosecution of organised crime, the Acts of December 22, 1998 and June 21, 2001 created the federal prosecution service. This service is directed by the federal prosecutor, who is assisted by eighteen federal magistrates. In principle, the federal prosecution service is competent to execute penal action in relation to certain crimes against the safety of the State, organised crime, terrorism, etc. The federal prosecutors also have to co-ordinate the execution of penal action at law in general and to facilitate international co-operation in criminal matters. Furthermore, some of the federal prosecutors are in charge of the supervision on the general and specific operation of the federal police (Sect. 144bis Judicial Code).
The Prosecutor-General at the Cour de Cassation
Finally, the Prosecutor-General at the Supreme Court (Cour de Cassation) also forms part of the public prosecution service, but is not its hierarchical superior. This Prosecutor-General is in principle not involved in public action at law; he mainly gives legal opinions in the interests of upholding the law and achieving consistency in the case law (Sects. 141-142 Judicial Code).
Criminal policy and prosecution policy
In Belgium, over the years legendary discussions have taken place about the exact relationship between the public prosecution service and the Minister of Justice. These discussions were part of a broader debate on the issue of the position of the public prosecution service in the state structure, and more specifically, on the question whether it belongs to the judicial branch or to the executive branch of the trias politica, or to both branches at the same time. In our opinion, the public prosecution service must be situated within the administrative power from an organisational point of view, whereas it had to be regarded part of the judicial power from a functional point of view.
The theoretical discussion to which power the public prosecutor office actually belongs sometimes resembles the abstract discussion on the exact gender of the angels. Nevertheless, it concerns the core of the relationship between the public prosecution service and the Minister of Justice, or in other words, the important question whether the public prosecution service is independent from the Minister of Justice or whether it is subordinated to it. In this context, it should be noted that since the Act of March 4, 1997, which formally established the board of Prosecutors-General, it is explicitly stated that the Minister of Justice determines the guidelines of policy on crime, including policies on investigation and prosecution, after having collected advice from the board of prosecutors-general. These guidelines are binding upon all members of the prosecution office and it is the task of the Prosecutors-General to implement them within their own territory (Sect. 143ter Judicial Code). Even if it had become clear that the public prosecution office is subordinated to the Minister of Justice, it would not mean that it had been reduced to a blind instrument in the Minister’s hand. It is indeed the board of prosecutors-general who bears the important responsibility for the further elaboration of criminal policy, for the co-ordination of it in a coherent manner, and for the adequate functioning of the public prosecution service in its entirety (Sect. 143bis subs. 2 Judicial Code).
The Act of March 4, 1997 has not remained a dead letter. Over the last few years, several fields of criminal policy have indeed been covered by guidelines from the Minister of Justice and/or the board of prosecutors-general. Reference can for instance be made to the joint guideline of 1998 on the prosecution of the possession and small trade in drugs; the ministerial guideline of 1998 on a uniform prosecution policy for driving under influence of alcohol, drugs or medicine; the joint guideline of 1999 relating to mediation in penal matters; and the ministerial guideline of 1999 concerning the investigation and prosecution of the trade in human beings and child pornography. In the light of these developments, it is clear that the Act of March 4, 1997 has not only produced an important reorganisation at the top of the prosecution service, but that it has also had a strong influence on the policies carried out. With regard to this last aspect, the question arises whether the prosecution service is sufficiently equipped to continue to formulate policy objectives, to control their implementation and to evaluate their results and effectiveness.
Duties and powers of the public prosecution service
Since criminal law aims at protecting public order, the right to react to an offence – i.e. the right to prosecute – is not left to the individual, but attributed to the public prosecution service (Sect. 1 Preliminary Title CCP). This service decides whether in a certain case further investigations should be made, whether it is necessary to summon suspects before the criminal court, and – in more serious or complicated cases – whether it is necessary to defer the matter to an investigating judge. However, the public prosecution service has no complete monopoly over the prosecution.
Firstly, it should be noted that specific legislation can attribute a right to prosecute to certain administrations. The most important example in this respect is the legislation on Customs and Excises, in which a (limited) right to prosecute is attributed to the Treasury.
Secondly, the victim as a partie civile can bring a civil action for compensation for the damage caused by the offence before the criminal courts (Sect. 4 Preliminary Title CCP). If the public prosecutor has already brought the case before a judicial authority – i.e. either the investigating judge in the judicial inquiry or the criminal courts –, the only effect of the civil action of the partie civile will be that the victim becomes a party in the pending criminal procedure. However, if the public prosecutor has not yet brought the case before a judicial authority, the victim by constituting himself partie civile – either by requesting the investigating judge to start a judicial inquiry in the given case or by summoning the suspect directly before the trial court – actually launches the prosecution and institutes the public action at law.
In a civil law country like Belgium, the public prosecution service has often been characterised as the engine and the watchdog of the criminal procedure. This expression refers to its omnipresent position in criminal matters: it is the public prosecutor who normally starts the criminal procedure; his office looks after the composition of the criminal file; he closely watches the criminal proceedings as they take place; and – finally – his office overlooks the execution of punishments and other measures pronounced by the courts.
Nevertheless, highlighting the formal competence of the public prosecutor to initiate a criminal procedure should not take attention away from the fact that his task is far broader. It is indeed totally impossible for the public prosecution service to bring all the cases it receives from the police and from inspection services – well over one million per year – before the criminal courts. So, the public prosecutor possesses an extensive discretionary power not to refer these cases to court, but to dispose of them in alternative ways, i.e. through dismissal, transaction or mediation in penal matters.
Political accountability the prosecution policy
The responsibility of the Minister of Justice with regard to the formulation of a policy on crime and on prosecution implies that he is politically accountable in this respect, and that he can be questioned by Parliament about these policies. Even questions about individual prosecution decisions are possible. However, it should be stressed that the Minister of Justice cannot act in the place of the public prosecution service. Nevertheless, in exercising his right of supervision the Minister of Justice can request a report on the actions taken by the public prosecutors, as well as order proceedings to be initiated in a particular case (Sect. 274 CCP). The Minister of Justice can not only give an order to prosecute, although this right seems to be seldom used, he is also entitled to count on the magistrates of the public prosecution service to ensure the smooth running of the criminal justice system. Nevertheless, the Minister of Justice does not have the right to dictate to the public prosecutor in charge of a case what he must say in court – though the pen be slave, words are free –, nor the right to forbid a prosecution. In this context, it must also be stressed that Sect. 151 subs. 1 of the Constitution explicitly states that the prosecution service enjoys independence in carrying out individual investigations and prosecutions, without prejudice to the right of the Minister of Justice to order proceedings or issue binding guidelines on criminal policy, however.
The decision not to prosecute
The public prosecution service has traditionally been entitled to apply the principle of discretion as to the disposition of criminal cases. In technical terms, this means that it possesses the right not to prosecute cases, or the possibility to waive the right to prosecute. In many instances, the prosecutor’s decision not to prosecute is fairly evident, namely when prosecution is or has become (nearly) impossible. Quite frequently, offenders of a given criminal act remain unknown; in other cases there may be suspicions against one or more persons but insufficient evidence to bring a case before court. In these situations and of course also when the suspect is no longer alive, or when criminal proceedings have become prescribed, the decision not to prosecute leads to technical dismissal.
However, for decades it has been accepted that the public prosecutor may also resort to other reasons for his decision not to prosecute, the so-called dismissals on policy grounds. The public prosecutor may indeed consider that certain offences, though criminal by law, are relatively unimportant to give rise to prosecution. In this respect, mention should also be made of the traditional prosecution practice of praetorian probation, whereby dismissals on policy grounds are combined with certain conditions imposed on the suspect, e.g. the prohibition to visit certain places or to meet certain people. Nevertheless, with the rise of newer mechanisms for the settlement of cases out of court over the last two decades, this practice seems to have diminished.
It should be noted that the distinction between technical dismissals and dismissals on policy grounds is not always as clear-cut as it may appear and that a grey area exists. Empirical research has suggested that some technical dismissals are better categorised as policy dismissals, because prosecutors were not able or not willing to mobilise additional resources to further investigate the case and to bring the necessary evidence to the surface.
Over the last couple of years, and particularly in the aftermath of the Dutroux case, several initiatives were taken that directly or indirectly impacted on the traditional system of dismissals. While confirming the principle of discretion, it was stipulated in 1998 that the public prosecutor has to give reasons for any decision to dismiss a case (Sect. 28quater CCP). This decision should also be communicated to the person who has made a so-called declaration of being harmed by the facts concerned (Sect. 5bis Preliminary Title CCP). Another approach comes from the board of prosecutors-general, who have issued several guidelines and circular letters that have brought about a more coherent policy in dismissals since 1997, e.g. in cases of the use and trade in narcotics. All of these initiatives have been geared towards reducing the traditionally wide margin of discretion of the public prosecutors, or alternatively speaking, to increasing the degree of accountability of the public prosecution service. However, what is still lacking to date is a more integrated vision on dismissals, which should cover at least two aspects. First of all, an answer should be given to specific legal questions, such as the broad categories of offences liable to dismissal, the legal effects of dismissals, the procedure of communication, etc. Secondly, a broader vision is needed at policy level, whereby the dismissal rates themselves are discussed and strategies can be devised to reduce them, e.g. by making more use of newer mechanisms and/or by strengthening the co-operation of public prosecution service and other partners in the criminal justice process.
The binary choice between prosecution and dismissal, has to be differentiated to a certain extent. The public prosecutor has indeed wider powers for the disposition of criminal cases outside court, i.e. the transaction and mediation in penal matters.
Transaction
The public prosecutor has the competence to propose the suspect the dissolution of the penal action at law on payment of a sum of money, which is called a transaction or friendly settlement (Sect. 216bis CCP). The sum to be paid cannot be higher than the statutory maximum of the fine. Furthermore, a transaction is only possible on the condition:
- that the public action at law can be, but has not been, instituted;
- that the criminal offence is made punishable with a fine and/or a prison sentence of maximum five years;
- that the public prosecutor holds the opinion that in court he would request a fine only – with or without a seizure of goods –; and
- that the damage caused has been compensated completely, or the suspect has acknowledged his civil liability.
The transaction is a unilateral proposal by the public prosecutor to the suspect. If the suspect pays the sum of money within the time-limit set out by the public prosecutor, the prosecution against him will be dropped. It is then not possible to re-open the case at a later moment. Moreover, the transaction will not be registered on the criminal record of the offender.
Mediation in penal matters
In 1994 a regulation for so-called mediation in penal matters was added to the CCP (Sect. 216ter). Firstly, this makes it possible for the public prosecutor to propose the suspect to make up for the harm done to the victim. In that respect the public prosecutor can act as a mediator between two parties. Secondly, the public prosecutor can also propose certain other conditions to the suspect, namely, when the suspect argues that the offence has a connection with an alcohol or drug problem, a medical treatment or therapy or training sessions.
Generally speaking, mediation in penal matters is possible in relation to offences for which the public prosecutor considers no prison sentence of more than two years should be imposed. This evaluation has to be made in a practical way, taking into account the consequences of possible mitigating circumstances. The consequence of this is that mediation in penal matters is possible for offences which carry a statutory prison sentence of 15 to 20 years in abstracto.
