New Belgian Criminal Code adopted

Book I of the new Criminal Code ("New CC") contains the general rules of criminal law, such as the rules relating to the material and moral elements of the criminal offence, perpetrators and criminal participation, the criminal attempt and the various penalties. A number of provisions in Book I are familiar because they correspond to some extent to provisions in the current Criminal Code or are a codification of case law. Nevertheless, modifications or simplifications have also been made to existing concepts.

A number of concepts have already been amended recently and will not be thoroughly reformed in the new code. An example is the criminal responsibility of legal persons.

On the other hand, other provisions and concepts have indeed been revised. A first example is the abolition of the classical tripartite distinction between felonies, misdemeanours and infractions. In the new code, the previous distinction disappears and the term "criminal offence" will be used. This will, among other things, put an end to the technique whereby a reduction of a felony to a misdemeanour takes place that is currently taking place and which, i.e. leads to the forgery of documents, which is a felony under the old Criminal Code, being reduced to a misdemeanour and thus still being dealt with by regular criminal courts instead of by a court of assizes.

A very relevant provision is article 7 New CC. That provision addresses the moral element of criminal offences. As a minimum, the moral element requires the perpetrator to act knowingly and voluntarily. This provision further clarifies that the law may impose additional requirements for the moral element to be satisfied. Not only are general and specific intent discussed further in this article, but the moral element of unintentional criminal offences is also explained. With regard to the latter offences, there is an explicit reference to serious fault. This is defined as a serious negligence or lack of caution. Currently, the lightest fault still suffices for i.e. involuntary manslaughter and involuntary assault and battery, but the new code raises the bar. Thus, for a number of criminal offences, the unity of criminal and civil fault will come to an end. Nevertheless, special acts can still criminalise the simple negligence or lack of caution in accordance to article 78 of the new Criminal Code. 

Another relevant innovation is the extension of criminal attempts to all intentional offences. At present, attempts to commit a crime are punishable, but attempts to commit a misdemeanour are not punishable unless the law so provides. As a result, an attempt to commit fraud is punishable, but an attempted abuse of trust is not. This distinction will therefore disappear. However, for criminal provisions contained in specifial legislation, this extension should be read together with articles 77 and 78 New CC.

The rules regarding perpetrators and criminal participation have also been updated. The new code defines various forms of participation. For example, a natural or legal person who knowingly and intentionally contributes significantly to a criminal offence is punishable if he or she fails to act and thereby directly promotes or facilitates the commission of the offence. The new regime abolishes the distinction between co-perpetrators and accomplices and allows participants to be punished as perpetrators.

Also innovative is the legal enshrinement of the goals of punishment. Judges are required to strike a fair proportional balance between the criminal offence and the penalty, and to take into account the undesirable side-effects of the punishment. For example, the impact on employees can be taken into account when punishing a legal person.

Another innovation concerns the sentences applicable to natural and legal persons. For the sake of clarity and consistency of criminal sentences, a scale of principal sentences, divided into 8 categories, will be introduced. With regard to legal persons, the old fine conversion mechanism as contained in article 41bis of the current Criminal Code will disappear and be replaced by own separate categories of principal sentences. As a result, the penalties for natural persons no longer need to be converted in order to arrive at the penalty applicable to legal persons. For example, for a natural person, in  the New CC category 3 is a prison sentence of more than three years up to a maximum of five years, or a deprivation of liberty of more than two years up to a maximum of four years. For legal persons, category 3 corresponds to a fine of more than 360.000 EUR up to a maximum of 600.000 EUR.

By applying mitigating circumstances, it is possible to reduce the sentence to a lower category of principal sentences. For example, a principal sentence of category 3 can be reduced to category 1. In addition, the judge may not impose a prison sentence for criminal offences punishable by a principal sentence of category 1. For legal persons, the possibility of imposing a community service sentence will be introduced, an equivalent of the community service for natural persons.

The new code also provides for a number of optional or mandatory additional sentences, such as an additional fine or confiscation, a prohibition on exercising a profession or even the closure of an establishment.

The criminal judge may also impose - instead of an additional monetary fine - a fine determined on the basis of the benefit that the offender gained or hoped to gain from the offence, if the offence was committed in order to obtain a pecuniary gain (directly or indirectly). This sentence is imposed when the criminal judge considers that an additional monetary fine is not sufficient to achieve an adequate punishment. In such a case, the criminal judge may sentence each of the perpetrators to pay an amount equal to a maximum of three times the value of the pecuniary gain that the perpetrator(s) obtained or hoped to obtain (in)directly from the criminal offence. This sentence may be imposed in addition to confiscation. Practice will show how often courts will impose such a fine, also in light of their duty to seek a fair proportional balance between the offence and the sentence.

When the new legislation comes into force, the surcharges will be set at zero so that, at least temporarily, pecuniary penalties under the new code will not have to be multiplied by eight, as is currently the case.

Important for business criminal law are the rules governing the relationship between Book I and the extensive special criminal legislation incorporated in provisions other than the Criminal Code. Unless otherwise provided in the special acts and regulations, the provisions of Book I apply to the offences criminalised therein. The new code also introduces a conversion mechanism. This will be used for the conversion and determination of the penalty when the special legislation does not use categories 1-8 for principal sentences. This could include, for example, the Code of Economic Law or the Social Criminal Code. Monetary fines under special legislation are also subject to specific rules. For example, if the special legislation provides – in addition to the principal sentence - for a fine as an additional sentence, the amount of the fine is regulated by the special legislation (multiplied by the surcharges). The new code also contains specific rules for the criminal provisions in special legislation with regard to attempt, criminal participation and mitigating circumstances.

Book II of the new Criminal Code contains the criminal offences related to the violation of the most important values and legal assets of society. Therefore, according to the legislator, it largely reflects the values and norms worthy of protection in our society. The reform includes, among other things, the depenalisation or decriminalisation of certain offences, the introduction of new offences, the adjustment of penalties for certain offences or the amendment of criminal provisions in order to form a coherent whole in the new Criminal Code and/or to better reflect reality. 

One such newcomer is ecocide, which is the intentional commission of an unlawful act, by act or omission, that causes serious, widespread and long-lasting damage to the environment. To lead to punishability, intent is required, as well as knowledge on the part of the natural or legal person that the act would cause such damage to the environment. For the purposes of this new criminal offence, the concepts of environment, serious, widespread and long-lasting damage are enshrined in law. To qualify as ecocide, the damage must, among other things, (i) be irreversible or not capable of being restored by natural regeneration within a reasonable time (long-lasting) and (ii) extend beyond a limited geographical area (large). In addition, the act is only punishable under Belgian law if it relates to a violation of federal or international law or if the act cannot be located in Belgium. The competence of the regions in the field of environmental protection thus severely limits the scope of the offence.

Another new offence is concealment of evidence. This offence includes the destruction, concealment or removal from investigation of objects on or with which the offence has been committed, or other traces of the offence or objects that could be used to establish the truth. The required moral element is the intent to cover up a crime committed by a third party or to prevent or hinder its detection, prosecution or punishment.

Other existing offences are modified. For example, the provision on bid rigging has been redrafted and expanded. The new criminal offence is defined as follows: Obstruction or interference of the freedom of auction or registration is the fraudulent or with intent to harm artificial restriction of the call for competition or the distortion of normal conditions of competition, by force, threat or any other fraudulent mean, in the allocation of rights to movable or immovable property, a contract, a supply, an exploitation or any service, or in the award of a public contract or a concession. In the new code, forgery and IT forgery will be rewritten and included in an article, as opposed to the current situation. With regard to insolvency offences, it is noteworthy that several offences  - currently punishable by imprisonment - will be reduced to category 1. The provisions on money laundering will also amended once again.

Other offences have already been updated recently and are not currently subject to significant changes. For example, abuse of trust has already been rewritten by the act of 12 July 2023. The recent legislative adjustments to this offence, as well as to other property offences, will of course be covered during our webinar on internal corporate fraud on 24 April 2024. 

With the exception of the provisions on treatment under deprivation of liberty and extended follow-up, Books I and II of the new code will in principle enter into force two years after their publication in the Belgian Official Gazette. During the parliamentary debates regarding the bills, it became clear that this is an ambitious goal, for example because of the need to adapt other acts and to make various technical changes to the IT systems of the judicial authorities. In any case, the current Criminal Code will remain relevant for some time: for offences committed before the entry into force of the new Code, the question arises as to which provisions should be applied, given the obligation to apply the most favourable provisions for the accused.