Questionnaire Belgium
I.18 What are the main technical/legal reasons?
The public prosecution service is entitled to apply the principle of discretion as to the disposition of criminal cases (sect. 28quater CCP). 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 can be suspicions against a person but insufficient evidence to bring the case before court. In these situations – and 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, there are also dismissals on policy grounds. The public prosecutor can indeed consider that certain offences, though criminal by law, are relatively unimportant as to give rise to prosecution. The main reasons to apply the expediency principle are:
- other priorities;
- crime of a minor nature;
- crime within a relationship; and
- regularisation of the situation.
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.
However, there are also dismissals on policy grounds. The public prosecutor can indeed consider that certain offences, though criminal by law, are relatively unimportant as to give rise to prosecution. The main reasons to apply the expediency principle are:
- other priorities;
- crime of a minor nature;
- crime within a relationship; and
- regularisation of the situation.
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.
