The community service: favoritism or forced labor?
Youtuber Nathan Vandergunst, also known as Acid, posted a video message on YouTube on May 31, 2023, expressing his displeasure with the verdict in the Sanda Dia case. In it, several members of the sorority Giant Gum were sentenced to fines and community service, ranging from 200 to 300 hours.
In the video in question, Acid made personal data of certain members and former members of the sorority public, mentioning the restaurant of one of the parents of these individuals.
Acid was found guilty of stalking by online on Feb. 22, 2024, pursuant to these facts by the correctional court of Bruges shaming and doxing.
He was sentenced to 3 months' imprisonment, with a stay of execution and a fine of 800 euros. He must also pay provisional damages to the restaurant in the amount of 20,000 euros. A company auditor was appointed who should still estimate the restaurant's final damages.
The Youtuber expressed his disagreement with his sentence in an interview after the hearing, and that he believes he was punished more severely than the members of Giant Gum. This is because a prison sentence, even if the court imposes it with a reprieve, is reflected on your criminal record. A community service sentence does not.
In its press release, the court of first instance West Flanders, indicated that the court in this case felt that the favor of community service could have been an appropriate punishment, but that it could not impose it because Acid had not agreed to it.
Consent of defendant as requirement for community service
According to Article 37ter §3 first paragraph of the Penal Code, a judge can only pass a community service sentence if the defendant is present at the hearing, or represented by a lawyer and after he or she has given his or her consent.
This crucial requirement for the imposition of a community service sentence stems from the principled prohibition of forced labor, as provided in Article 4 of the European Convention on Human Rights. Therefore, if it turned out that there was no consent from the accused, the conviction would be tainted by nullity.
One might think that consent of the defendant does not remove the coercive nature of community service. After all, the convicted person still performs the work under the threat of punishment, given that he or she knows that otherwise he or she risks a more severe punishment.
However, the European Court of Human Rights holds that community service is indeed compatible with the prohibition of forced labor.
Indeed, the ECtHR assumes that when the convicted person agrees to community service, it is the result of a considered decision on the defendant's behalf, and a weighing of all the pros and cons. Indeed, the judge also has a duty of information, requiring him to inform the defendant of the scope of the community service before the conclusion of the debates.
Do you have questions about community service or other favor measures? If you are looking for a specialized lawyer, please contact us at info@bannister.be or via our phone number 03/369.28.00. Our criminal lawyers will be happy to assist you.
