Criminal Law

New arrangement

We already explained the new regulation in a previous blog.

Until today, this arrangement applied to sentences up to a maximum of two years.

The changes

Information obligation of the director

The director of the prison must explicitly inform the convicted person of the possibility of applying for a sentence modality at the start of his sentence execution or within a period of less than four months.

Punishment modality from freedom

Convicts with sentences up to and including 18 months are immediately subject to the time conditions for “limited detention” and “electronic monitoring.”
This includes convicts whose sentences, after calculating the pre-trial detention already served and the date of conditional release, show that they are immediately eligible for electronic monitoring or limited detention.

The purpose of the present bill, then, is to put into practice the legislature’s intention in 2019 to provide for the application of a sentencing modality from liberty.

The creation of a multi-step plan was necessary for this purpose:

1. Enforcement of the custodial sentence by the prosecution: the prison bill is given to the convicted person through the police department
2. Prison enrollment : within five days
3. Immediate deposit of a written request electronic monitoring/restricted detention: with suspension of the execution of the custodial sentence and suspension of the statute of limitations of the sentence
4. Self-offering: those convicted who spontaneously acted on the prison bill
5. Opinions: optional by the director of the prison and/or the public prosecutor (with imposed deadline provided for in article 33§1 Law 2006) or request to the competent services of the Communities to carry out a summary information report or social survey
6. Responsabilization of the convicted person/compilation of file: information on his personal situation, to be deposited at the registry of the criminal execution court within 15 days (possible counter-directions provided for in article 28 law of 2006)
7. Exclusion of sex crimes and terrorist crimes: necessary specialized advice
8. Order for detention by the public prosecutor during the period of suspension of sentence enforcement: if a convicted person poses a serious danger to the physical or psychological integrity of third parties during the suspension of sentence enforcement and effective deprivation of liberty
9. Decision sentencing judge: within the month

This arrangement already applied to sentences between two and three years.

From September 1, 2023, this rule will also apply to short prison sentences of less than two years!

To the extent that you receive a jail bill as a convicted person, it is critical that you seek the advice of a criminal defense attorney.

Do you have any questions about this item? Contact Peterfreund & Associates your lawyer in Antwerp!

Als advocaat strafrecht worden wij zeer vaak geconfronteerd met cliënten die klachten hebben over hun behandeling in de gevangenis.

Deze klachten kunnen betrekking hebben op zaken zoals de omstandigheden waarin gedetineerden opgesloten zijn tot klachten over hun behandeling door het personeel.

In het verleden konden gedetineerden enkel intern klacht indienen.

De gevangenisdirecteur moest dan zelf oordelen of  de klacht al dan niet terecht was.

Het spreekt voor zich dat dit een volledige absurde procedure was nu de directeur tegelijk rechter en betrokken partij was.

Gedetineerden die echt teneinde raad waren konden eventueel de Belgische Staat al dan niet in Kortgeding dagvaarden.

Dit is echter een zeer complexe en ingewikkelde procedure die absoluut niet aan de noden van de gedetineerden voldoet.

Sinds twee jaar bestaat er een geïnstitutionaliseerde beklagrecht voor gedetineerden.

Gedetineerden kunnen bij de CTRG terecht.

Het CTRG is de Centrale Toezichtsraad voor het Gevangeniswezen.

Deze heeft binnen haar organisatie een klachtencommissie die dergelijke klachten moet behandelen.

Vraag tot overplaatsing.

Een speciale categorie van klachten heeft betrekking op een weigering een gevangene over de plaatsen.

Het is echter belangrijk dat de juiste procedure gevolgd wordt.

Hierbij dient de gedetineerde in eerste instantie een vraag tot overplaatsing te formuleren bij de directie detentiebeheer.

Indien de directie detentiebeheer dit weigert, moet eerst een bezwaar ingediend worden bij de directeur generaal.

Pas nadat de directeur generaal het bezwaar verwerpt, kan beroep aangetekend worden tegen deze beslissing bij de beroepscommissie van het CTRG.

Heeft U vragen over het klachtenrecht in het algemeen of de behandeling van een gedetineerde in een specifieke situatie?

Contacteer advocaat Peterfreund, uw advocaat in ANTWERPEN.

As criminal lawyers, we are very often faced with cases in which there is criminal organization on the one hand or an association of criminals on the other.

But what is the difference between the two?

Association of criminals:

What constitutes an association of criminals is defined in Section 322 Sw.

In it one reads:

“Any association with the intent to commit an attack on persons or property is a crime or a malpractice, existing by the mere fact of furnishing the gang.”

According to established Supreme Court case law, it is sufficient that the association in question has the purpose of committing a crime.

This does not even require that the crime was actually committed.

A mere preparatory act will suffice.

In other words, is it enough that plans are forged to commit a crime to be prosecuted for gang affiliation.

It is obvious that one must be at least two to talk about an association.

However, this is not enough.

In addition, there must be a certain duration, a structure and concrete agreements.

Criminal organization:

A criminal organization is distinct from the association of criminals.

What constitutes a criminal organization is defined in Section 324bis of the Sw.

“By criminal organization is meant any structured association of more than two persons lasting over time, for the purpose of committing, in concert, crimes and misdemeanors punishable by imprisonment for three years or a more severe penalty, in order to obtain, directly or indirectly, pecuniary benefits.”

First, there must be an association of more than two people.

In addition, unlike the case of an association of criminals, there must be a clearer structure with a hierarchy.

In other words, there needs to be a clearer division of roles between the various participants.

Punishment:

In accordance with Sw. 324ter, the role of the member of a criminal organization affects the possible punishment.

Thus, Article 324ter distinguishes between the following categories of members:

• Paragraph: any person who participates in the preparation or execution of an activity of a criminal organization shall be punished by imprisonment for a term of one year to three years and a fine of EUR 100.00 to EUR 5,000.00.
  It is not important here that that particular activity is permissible.
• Participation in the decision-making process: any person who participates in making any decision whatsoever in the periphery of the activities of that criminal organization knowing that his participation contributes to the purpose of the organization shall be punished by imprisonment from five years to ten years and by a fine from EUR 500.00 to EUR 100,000.00.
• Leadership: finally, a leader of the criminal organization is punished with imprisonment from 10 years to 15 years and with a fine of EUR 1,000.00 to EUR 2,000.00.

**

As You can see, the difference between membership in an association of criminals or criminal organization is particularly relevant to sentencing.

Therefore, if you are being prosecuted for membership in a criminal organization or an association of criminals, you should be assisted by a specialized lawyer.

With more than 20 years of experience as a lawyer in Antwerp, Mr.
Peterfreund will gladly assist you here.

If you have any questions: feel free to contact us.

In previous blog posts, we have commented on the process of honor restoration.

Indeed, as Criminal Law attorneys, we are very frequently questioned by clients who wish to start one with a clean slate.

The only way to comply with this is to ask for honor.

Territorial jurisdiction:

Anyone wishing to seek rehabilitation should do so to the Prosecutor’s Office of the district of his or her residence.

This means that those living in Antwerp must go to the Antwerp Prosecutor’s Office.

If you live in Kallo, you will have to go to the Dendermonde Prosecutor’s Office….

In itself, this would not be a problem were it not for the fact that the manner in which an application for rehabilitation is handled by the Prosecutor’s Office is not uniform.

This means that the different Prosecutor’s Offices each process the applications in their own way.

Active or passive?

Some Prosecutors’ Offices, such as the Antwerp Prosecutor’s Office, require the applicant to submit numerous documents and information.

Not only is the applicant expected to submit a copy of all judgments but also evidence of execution of all penalties, payment of all fines and costs etc…

The applicant must also prove that any victims were compensated.

Obtaining this information and documents is often not obvious and necessitates the intervention of a specialized lawyer.

When the file is then turned over to the Prosecutor’s Office and they deem that something is missing, simply the entire bundle is sent over again with the request to complete and resubmit it.

Understandably, this often causes frustration.

Certain Public Prosecutors’ Offices, such as the Ghent Public Prosecutor’s Office, take care of compiling a file themselves.

This means that you may then take a passive attitude as an applicant and submit only the information that the Prosecutor’s Office cannot obtain itself with the various services of the administration.

Such a procedure is obviously much more pleasant for the applicant.

Unification:

That the different Prosecutors’ Offices each handle the applications in their own way is not logical.

Therefore, it is our fervent wish that the Attorneys General would ensure that the procedure in all the Prosecutors’ Offices are uniform.

The legislature could also take the necessary initiatives in this regard.

For now, however, this is wishful thinking and it is best to enlist the services of a lawyer with expertise to guide you through the proceedings.

Do you wish to initiate an honor restoration procedure?

Contact our law firm in Antwerp.

Navigating the Changes: The New Penal Code and Business Leaders

*Insights and Tips for Safe Sailing*

The legal landscape is constantly changing, and recent legislative changes have significant implications for companies and their leaders.
On Feb. 22, 2024, the new Criminal Code was passed by the House of Representatives, making a series of crucial changes that affect the criminal responsibility of companies and their leaders.
In this blog, we share insights on the changes, risk management tips and a look at some other notable innovations.

**Increased Risks: Financial and Legal Implications**

One of the most striking aspects of the new Criminal Code is the introduction of the monetary penalty, which gives judges the power to more severely punish wealthy businesses and individuals.
This penalty can be up to three times the profits made or expected to be made from the crime, in addition to existing fines and forfeitures.
This places a significant financial burden on businesses and their leaders.

Moreover, the explicit inclusion of participation by omission creates new risks for directors and executives.
Passivity in the case of crimes within the organization can now be considered complicity, resulting in potentially serious legal consequences.

**Alternative Punishments and Future Developments**

In addition to fines, the new Criminal Code introduces alternative penalties for businesses, such as the obligation to provide services for the benefit of the community and probationary penalties.
For directors and executives, the professional ban is a new additional penalty, which can restrict professional activities for a certain period of time.

It is important to keep abreast of further developments and interpretations of the new Criminal Code, as they will affect its practical application.

**Subdivision into levels**

The new criminal code divides crimes into 8 levels as follows:

The new Penal Code’s 8 levels of punishment

**Conclusion: Navigating Change with Carefulness and Foresight**

The new Criminal Code brings significant changes for businesses and their leaders, and it is essential to understand these changes and take proactive measures to manage risk.
It is therefore important to seek the assistance of an experienced criminal law attorney.
Contact our Antwerp-based legal team. By using the right strategies and resources, companies can navigate a safe course amid these legal changes.

Lawyer honors:

As an attorney honor restoration, we have been advising clients for more than 20 years!

When someone is sentenced to certain penalties by the Police Court or Correctional Court, it usually results in that person losing his or her blank criminal record.

This can often have far-reaching consequences.

Just think of the question that a lot of job applicants are asked to provide proof that they have a clean criminal record before being hired for a particular job.

Also, in the event a person has to reappear in court after a first conviction, the potential penalties may be more severe if a person has a criminal record.

How long does and particular conviction stay on the criminal record?

It goes without saying that the law also provides for a number of options to allow people to regain a blank criminal record.

Thus, there are two separate possibilities particularly the erasure and the honor restoration.

Both measures aim to end the adverse effects resulting from a conviction on the criminal record.

This concerns not only a possible adverse social consequence, but also the consequences in the criminal sphere: an obliterated sentence or a sentence for which rehabilitation was granted is no longer eligible for the application of rules on recidivism deferral or suspension.

EXCHANGE:

Initially, the law provides for the automatic exchange of certain penalties.

However, this concerns only so-called police sentences, being small sentences handed down by a Police Court.

The law provides that these sentences will automatically be automatically expunged after three years from the time of sentencing.

Thus, this measure is not tied to the fulfillment of certain conditions;

This does include an exception for convictions of driving bans or disqualifications that extend over a period longer than three years.

These are not automatically erased after three years.

EERHERSTEL:

If certain sentences are not automatically expunged, the convicted person may be able to apply for what is known as restoration of honor and rights, or rehabilitation of honor.

Procedure:

Those wishing to seek rehabilitation should make a request to the Procurator General.

This is best done with the intervention of an attorney.

The District Attorney will prepare an opinion upon receipt of the request.

The final decision on whether or not to accede to the demand for rehabilitation falls to the Trial Chamber of the Court of Appeals.

Prerequisites:

To qualify first, there are a number of conditions provided:

* All prison sentences must have been served and all fines paid.
The only exception is if it can be shown that the non-execution is not due to the convict himself.

In that case, the convict must wait until the sentences are time-barred.

This is e.g. the case for most short prison sentences that are often not carried out.

Furthermore, all obligations imposed in the judgment must also have been fulfilled.

It concerns e.g. compensation to victim, return of certain items or payment of court costs.

However, the Court of Appeals may possibly grant the convicted person who is unable to comply with this due to incapacity or force majeure the favor of not having to comply with this condition.

* The convict must have completed a certain probation period during which he must have had a permanent residence in BELGIUM or abroad and must have shown good behavior and improvement.

Trial begins from the day the convict leaves prison.

The length of the period varies depending on the sentence imposed (shorter or longer than five years) and on whether the convicted person requesting rehabilitation was convicted for the first time or is a repeat offender.

For sentences shorter than five years, the probation period is three years (for the first offense) or six years for repeat offenders.

For sentences above five years, the probation period is five years for a first conviction or 10 years for repeat offenders.

When a person received a suspended prison sentence, probation is never shorter than the length of the suspension unless it was reduced by grace.

During the probationary period, the convict must not have incurred any new convictions.

Certain minor convictions during the trial period may possibly be condoned by the Court.

These include a conviction to a police sentence, a correctional fine or a correctional prison sentence of less than one month for a violation of a number of legal articles listed in Article 627 of the Code of Criminal Procedure.

* The next condition is that the convict has not received rehabilitation in the past 10 years.

* When convicted of rape, indecent assault or moral offenses committed against minors, the advice of a specialized service in the treatment of sexual offenders must be taken before honor restoration is possible.

How long does it take to get honor restoration?

It is difficult to estimate in advance how long it will take until the K.I. (Chamber of Indictments) makes a decision on an application for rehabilitation.

The application is addressed to the prosecutor’s office.
If there is a positive opinion then honor restoration will be granted without summoning you.
If the opinion is negative or there are convictions for sex offenses, you will be summoned for a hearing before the K.I.

In practice, a lead time of about one year should be taken into account.

If You wish to apply for honor restoration, it is important that You obtain proper advice and assistance.

Our Antwerp criminal lawyers have extensive experience in cases involving honor restoration.

If you have any questions please contact us.
We will be happy to advise and assist you!