Questionnaire Belgium
I.33 Under which circumstances?
In Belgian criminal law, a statutory triple
division of criminal offences is used: crimes, misdemeanours and
contraventions. The competence of criminal courts is related to this triple
division of offences: police courts are competent to deal with all
contraventions as well as some misdemeanours enumerated in sect. 138 CCP; the
correctional courts are in principle competent to handle all misdemeanours;
whereas the crimes are treated by the assize courts.
However, a necessary differentiation should be made. The public prosecution service on the one hand, and the investigating jurisdictions – the Council Chamber and the Indicting Chamber – on the other hand, are indeed qualified to refer someone who is suspected of having committed a crime to the correctional court (so-called correctionalisation) and someone who is under suspicion of having perpetrated a misdemeanour to the police court (so-called contraventionalisation), both on the condition that mitigating circumstances are present (sects. 2 and 4 Act of 4 October 1867 concerning the mitigating circumstances).
In relation to the control of judicial competence, a distinction should be made between referral to the trial court by way of a direct summoning (a), and referral to the trial court by an investigating jurisdiction (b).
a) When a case has been referred to the trial court by way of a direct summoning, the judge has to check whether he is competent on the basis of the qualification of the facts mentioned in the summons. When he is not competent in relation to this qualification, he has to consider himself incompetent, even if he considers the facts are not correctly qualified. When a crime has been correctionalised or a misdemeanour contraventionalised by a direct summons, the judge is only competent if he agrees with the decision to denature taken by the public prosecutor (sects. 3 and 5 Act 4 October 1867). Only when this first test results in the prima facie competence of the court, the judge can check the right qualification. This implies the judge has to qualify the facts as highly as possible, i.e. the qualification with the maximum punishment provided. After such a re-qualification, the trial judge needs to check for a second time whether he is competent. It should be noted, that the principle of adversariality can only be guaranteed if the parties in the procedure are adequately informed by the judge of the re-qualification of the facts that he has done.
b) When a case has been referred to the trial court by an investigating jurisdiction, the competence first has to be checked on the basis of the qualification mentioned in the referring decision. In principle, the same double test applies as when the case would have been directly summoned. However, when the referral implies a correctionalisation or a contraventionalisation, the first test is somewhat complicated. A possible decision to denature suggested by the investigating jurisdiction in the referring decision is binding on the trial judge (sects. 3 and 5 Act 4 October 1867) if the mitigating circumstances are correct, if they are specifically mentioned and if they can be lawfully taken in account. Finally, the mitigating circumstances have to exist. If this first test has a negative result, the judge will have to declare he is incompetent to handle the case.
However, a necessary differentiation should be made. The public prosecution service on the one hand, and the investigating jurisdictions – the Council Chamber and the Indicting Chamber – on the other hand, are indeed qualified to refer someone who is suspected of having committed a crime to the correctional court (so-called correctionalisation) and someone who is under suspicion of having perpetrated a misdemeanour to the police court (so-called contraventionalisation), both on the condition that mitigating circumstances are present (sects. 2 and 4 Act of 4 October 1867 concerning the mitigating circumstances).
In relation to the control of judicial competence, a distinction should be made between referral to the trial court by way of a direct summoning (a), and referral to the trial court by an investigating jurisdiction (b).
a) When a case has been referred to the trial court by way of a direct summoning, the judge has to check whether he is competent on the basis of the qualification of the facts mentioned in the summons. When he is not competent in relation to this qualification, he has to consider himself incompetent, even if he considers the facts are not correctly qualified. When a crime has been correctionalised or a misdemeanour contraventionalised by a direct summons, the judge is only competent if he agrees with the decision to denature taken by the public prosecutor (sects. 3 and 5 Act 4 October 1867). Only when this first test results in the prima facie competence of the court, the judge can check the right qualification. This implies the judge has to qualify the facts as highly as possible, i.e. the qualification with the maximum punishment provided. After such a re-qualification, the trial judge needs to check for a second time whether he is competent. It should be noted, that the principle of adversariality can only be guaranteed if the parties in the procedure are adequately informed by the judge of the re-qualification of the facts that he has done.
b) When a case has been referred to the trial court by an investigating jurisdiction, the competence first has to be checked on the basis of the qualification mentioned in the referring decision. In principle, the same double test applies as when the case would have been directly summoned. However, when the referral implies a correctionalisation or a contraventionalisation, the first test is somewhat complicated. A possible decision to denature suggested by the investigating jurisdiction in the referring decision is binding on the trial judge (sects. 3 and 5 Act 4 October 1867) if the mitigating circumstances are correct, if they are specifically mentioned and if they can be lawfully taken in account. Finally, the mitigating circumstances have to exist. If this first test has a negative result, the judge will have to declare he is incompetent to handle the case.
