The civil action complaint, a keeper or not?
Article 63 of the Belgian Code of Criminal Procedure allows an individual to initiate criminal proceedings against another individual or legal entity on his or her own initiative. So any person can initiate a criminal investigation by filing a complaint with civil charges in the hands of an investigating judge. The investigating judge is then obliged to take note of the civil complaint and to start an investigation. At that point, the investigating judge cannot judge the appropriateness, pertinence or desirability of such an investigation.
How does such a procedure work?
The person against whom the civil action complaint was filed qualifies as a "person assimilated to a person under suspicion". The consequence of this qualification is that this person will have to appear before the chambers in any case. The chambers will then have to decide - after the investigation has been conducted - whether or not the facts underlying the complaint should be judged by the criminal court.
Before the case comes before the chambers, many different acts must be carried out by the investigating authorities. The investigating judge must conduct an investigation, conclude it and transmit it to the Public Prosecutor via a communication order. The Public Prosecutor must make a final demand.
All this must be done even if the investigating judge or the Public Prosecutor believe that the investigation is not about criminal facts or that it is not expedient or desirable to conduct an investigation.
Need for reform?
The complaint with Civil Partition is a legal figure still used only in Belgium and France. In other countries, such as the Netherlands, Spain and Italy, the prosecution policy is entirely in the hands of the Public Prosecutor and a citizen cannot initiate a criminal investigation on his own initiative.
Because Belgium allows each individual citizen to initiate a criminal investigation, it is difficult for a public prosecutor to develop an efficient prosecution policy.
As a result, investigations initiated as a result of such a civil complaint are often assigned a low priority. The processing time (the time between starting and closing an investigation) is significantly longer than when an investigation is started by the Public Prosecutor's Office itself. Moreover, such investigations more often result in a dismissal of the case than those initiated by the Public Prosecutor's Office.
The present proposal for reform of the Code of Criminal Procedure wishes to eliminate the legal figure of the complaint with civil action from Belgian law. According to the proponents of this proposal, criminal prosecution policy can thus be developed and implemented more efficiently.
Is there then no right for citizens to have a criminal investigation initiated?
According to the European Victims' Directive, this is not the case. When a citizen cannot have a criminal investigation initiated by himself, an alternative must be provided. When the public prosecutor considers that an investigation "dismissed" should be, the citizen - if he cannot initiate a criminal investigation himself - should have the possibility to appeal against such a dismissal decision. It is this track that the proposal to reform the Code of Criminal Procedure intends to follow.
Whether the federal parliament will approve the proposed reform remains to be seen. In the meantime, the figure of the civil-party complaint will continue to exist.
It is important - in view of the above figures - to always have a complaint with civil action set forth by a lawyer in a professional manner. It is how this complaint is formulated that will determine the merits and priority level of the investigation to be conducted.
The criminal law team at Bannister Lawyers has years of experience drafting complaints with civil charges and knows how to work toward a thorough judicial investigation.
Would you like more information about the complaint with civil action or to be assisted by a specialized lawyer? Please feel free to contact us at info@bannister.be or at 03.369.28.00.
Author: Ward Reniers
November 23, 2020
