The amicable settlement in criminal affairs, voted in 2011, entails that the public action becomes extinct in exchange for the payment of a fine to the Belgian State and for the fulfilment of certain conditions.
The question whether a settlement will be offered or – when initiated by the defendant – accepted, is entirely at the discretion of the public prosecution.
Such a settlement can be entered into with the public prosecution even after the public action has been brought before the court: the possibility remains until the moment where the decision in the case has become final. A settlement can also be entered into in complex financial and crimes and taxation fraud. There is no Court control over the offering/refusing or the terms of the settlement.
In a decision of 2 June 2016, the Belgian Constitutional Court has ruled such a settlement (partly) unconstitutional, given the lack of court control: once a case has been brought before the criminal court, the public action can be decided upon by the public prosecution. Furthermore, the Constitutional Court denounces the fact that the defendant cannot exact such a settlement from the public prosecution. The prosecutions refusal to accept the offer of such a settlement is not open to appeal or control.
The ruling will have effect as from its publication in the Belgian State Journal. Following publication, a legal vacuum will exist until the Belgian criminal code will have been amended in this respect.
For more information, please contact:
Laurence Vermeiren
LVermeiren@Iustica.be