The Role of the Public Prosecutor in Relation to the Execution of Sanctions
Chapter IV
The Role of the Public Prosecutor in Relation to the Execution of Sanctions
Sentences and orders are enforceable and may be carried out after the decision of the court has become final, i.e. at the moment that the decision is no longer susceptible to being challenged by means of appeal.
According to Sect. 40 of the Constitution, the judgements are to be executed on behalf of the King. In this perspective, the public prosecution service and the partie civile shall prosecute the execution of the sentence, in so far as it concerns him (Sects. 165, 197 and 376 CCP). The prosecution for the recovery of fines and confiscation orders shall however be made by the tax collector, which will act in the name of the public prosecutor. Furthermore, the prosecution service supervises the legal formalities of the execution of penal sanctions and sets the date offenders have to begin serving their prison terms. However, the public prosecution service does not have the competence to interfere with the prison administration, which bears the responsibility for the implementation of custodial sentences on the initiative of the public prosecution service.
The suspended or conditional sentence
The postponement of sentencing is a judicial decision of suspension of the pronouncement of the sentence during a probation period from one to five years (Sect. 3 Act of June 29, 1964 relating to the postponement of sentencing, the suspended sentence and probation), which implies that no punishment is pronounced and that the offender – on the successful completion of the probation period – should be regarded as not having been convicted.
The postponement of sentencing is a form of conditional discharge, which can be revoked if the suspect commits an offence during the probation period which has resulted in a conviction of either a criminal sentence or a prison sentence of at least one month (Sect. 13 subs. 1 Probation Act). With a view to this revocation, the public prosecution service can summon the suspect (Sect. 13 subs. 4 Probation Act).
Under certain conditions, the court can decide that the execution of an imposed sentence will be suspended during a probation period of one to five years (Sect. 8 subs. 1 Probation Act). If this period is successfully completed, the suspended penalties lapse and cannot be executed anymore.
The suspended sentence will ipso iure and automatically be revoked – without intervention by the court – if, during the probation period, the offender commits a new offence that has resulted in a conviction for either a criminal sentence, or an effective prison sentence, of more than six months (Sect. 14 subs. 1 Probation Act). Furthermore, the suspended sentence can be revoked if, during the probation period, the offender commits a new offence that has resulted in a conviction for an effective prison sentence of at least one month and at most six months. In this latter case, the public prosecution service will summon the offender (Sect. 14 subs. 1bis and 2 Probation Act).
Probation is not an autonomous sanction, but only a modality of either the postponement of sentencing or of the suspended sentence. In this perspective, a distinction is made between the probationary postponement of sentencing on the one hand, and the probationary suspended sentence on the other hand (Sect. 1 subs. 2 Probation Act). According to criminal law, postponement of sentencing and a suspended sentence become probative in nature by the mere fact that the judge binds his decision to postpone the sentence, or to suspend the implementation of it, to one or more conditions. Since the conditions that may be imposed are not stated in the Probation Act, the judge can to a large extent choose the conditions freely.
In each judicial district there is a so-called Probation Committee, which is competent for the execution of the probation measures. This Committee consists of a chairing judge, a lawyer and a senior civil servant. The public prosecutor is entitled to be present at the meetings of the Probation Committee, with an advisory vote (Sect. 10 Probation Act).
The judge can revoke the probationary postponement if the probationer does not fulfil the conditions and the Probation Committee considered this non-compliance sufficiently serious to inform the public prosecution service (Sect. 13 subs. 3 Probation Act). The probationary suspended sentence can be revoked if the probationer does not fulfil the conditions. In that case, the public prosecution service will summon the probationer, after it received a report from the Probation Committee (Sect. 14 subs. 2 Probation Act).
The Role of the Public Prosecutor in Relation to the Execution of Sanctions
Sentences and orders are enforceable and may be carried out after the decision of the court has become final, i.e. at the moment that the decision is no longer susceptible to being challenged by means of appeal.
According to Sect. 40 of the Constitution, the judgements are to be executed on behalf of the King. In this perspective, the public prosecution service and the partie civile shall prosecute the execution of the sentence, in so far as it concerns him (Sects. 165, 197 and 376 CCP). The prosecution for the recovery of fines and confiscation orders shall however be made by the tax collector, which will act in the name of the public prosecutor. Furthermore, the prosecution service supervises the legal formalities of the execution of penal sanctions and sets the date offenders have to begin serving their prison terms. However, the public prosecution service does not have the competence to interfere with the prison administration, which bears the responsibility for the implementation of custodial sentences on the initiative of the public prosecution service.
The suspended or conditional sentence
The postponement of sentencing is a judicial decision of suspension of the pronouncement of the sentence during a probation period from one to five years (Sect. 3 Act of June 29, 1964 relating to the postponement of sentencing, the suspended sentence and probation), which implies that no punishment is pronounced and that the offender – on the successful completion of the probation period – should be regarded as not having been convicted.
The postponement of sentencing is a form of conditional discharge, which can be revoked if the suspect commits an offence during the probation period which has resulted in a conviction of either a criminal sentence or a prison sentence of at least one month (Sect. 13 subs. 1 Probation Act). With a view to this revocation, the public prosecution service can summon the suspect (Sect. 13 subs. 4 Probation Act).
Under certain conditions, the court can decide that the execution of an imposed sentence will be suspended during a probation period of one to five years (Sect. 8 subs. 1 Probation Act). If this period is successfully completed, the suspended penalties lapse and cannot be executed anymore.
The suspended sentence will ipso iure and automatically be revoked – without intervention by the court – if, during the probation period, the offender commits a new offence that has resulted in a conviction for either a criminal sentence, or an effective prison sentence, of more than six months (Sect. 14 subs. 1 Probation Act). Furthermore, the suspended sentence can be revoked if, during the probation period, the offender commits a new offence that has resulted in a conviction for an effective prison sentence of at least one month and at most six months. In this latter case, the public prosecution service will summon the offender (Sect. 14 subs. 1bis and 2 Probation Act).
Probation is not an autonomous sanction, but only a modality of either the postponement of sentencing or of the suspended sentence. In this perspective, a distinction is made between the probationary postponement of sentencing on the one hand, and the probationary suspended sentence on the other hand (Sect. 1 subs. 2 Probation Act). According to criminal law, postponement of sentencing and a suspended sentence become probative in nature by the mere fact that the judge binds his decision to postpone the sentence, or to suspend the implementation of it, to one or more conditions. Since the conditions that may be imposed are not stated in the Probation Act, the judge can to a large extent choose the conditions freely.
In each judicial district there is a so-called Probation Committee, which is competent for the execution of the probation measures. This Committee consists of a chairing judge, a lawyer and a senior civil servant. The public prosecutor is entitled to be present at the meetings of the Probation Committee, with an advisory vote (Sect. 10 Probation Act).
The judge can revoke the probationary postponement if the probationer does not fulfil the conditions and the Probation Committee considered this non-compliance sufficiently serious to inform the public prosecution service (Sect. 13 subs. 3 Probation Act). The probationary suspended sentence can be revoked if the probationer does not fulfil the conditions. In that case, the public prosecution service will summon the probationer, after it received a report from the Probation Committee (Sect. 14 subs. 2 Probation Act).
