Belgian criminal procedure explained: from arrest to trial

Foreign residents and international businesses in Brussels sometimes discover Belgian criminal procedure at short notice, when an employee is questioned, premises are searched or a client is placed under arrest. The system is continental in structure and differs from both the common-law model and the Greek one in important details. What follows is a neutral map of the road from arrest to trial. JuriSpectrum's founding partner has explained these procedures to Greek national media on several occasions (see his commentary for ERT and To Vima); this note deliberately sets out the rules without reference to any individual case.

Two kinds of investigation

Most criminal files in Belgium are handled by the public prosecutor (procureur du Roi) in a preliminary inquiry known as the information. Where coercive measures are needed, such as a search of a private home, telephone interception or, above all, an arrest warrant, the prosecutor asks an investigating judge (juge d'instruction) to open a judicial investigation, the instruction. The investigating judge is an independent member of the judiciary, not a prosecutor. He or she investigates both for and against the suspect, directs the police and decides which coercive measures are justified.

Arrest and the 48-hour rule

Article 12 of the Belgian Constitution guarantees individual liberty. Outside cases of flagrant délit, no one may be arrested except under a reasoned order of a judge, which must be served within forty-eight hours of the deprivation of liberty. This period was extended from twenty-four to forty-eight hours by a constitutional revision of 24 October 2017, which entered into force on 29 November 2017. Within that window the person is questioned by the police and then by the investigating judge, with the assistance of a lawyer from the first interview; if no warrant is served by the deadline, release is automatic.

The arrest warrant

Pre-trial detention is governed by the Law of 20 July 1990. The investigating judge may issue an arrest warrant (mandat d'arrêt) only where the offence carries a custodial sentence of at least one year, where there are serious indications of guilt, and where detention is absolutely necessary for public security. The judge must first interview the suspect and give notice that a warrant is being considered. The warrant may be executed in prison or, since a reform of the law, under electronic monitoring at the suspect's home; in both forms the person is legally in pre-trial detention and the same review timetable applies.

Review by the chambre du conseil

An arrest warrant is short-lived. Within five days of its execution, the pre-trial chamber of the court of first instance (chambre du conseil) must decide, at a hearing where the detainee and counsel are heard, whether the detention is maintained. Thereafter the chamber reviews the detention at regular intervals, monthly in the first phase and less frequently as the investigation matures, each time verifying that serious indications of guilt and the grounds for detention still exist. The detainee may appeal any decision maintaining detention to the indictment chamber of the court of appeal (chambre des mises en accusation) within twenty-four hours; that chamber must rule within fifteen days. The chambre des mises en accusation also supervises the lawfulness of the investigation itself and can order that irregular evidence be removed from the file.

Cooperation and plea mechanisms

Belgian law now provides several negotiated routes. The oldest is the transaction pénale, a settlement with the prosecutor that extinguishes the prosecution for certain offences. A law of 2016 introduced the guilty plea (reconnaissance préalable de culpabilité), under which the prosecutor and the accused agree on a sentence that must then be confirmed by the court. Distinct from both is the regime for cooperating witnesses introduced by the Law of 22 July 2018 for organised crime and terrorism. Here the prosecutor draws up a memorandum (often translated as a repentance memorandum, mémorandum de repentance) recording the statements the person undertakes to make about the facts and the participants, and the advantage promised in return. The memorandum may be concluded during the investigation. Crucially, where the promised advantage is a reduction of sentence, it must be approved by a court, which checks in particular that the advantage is proportionate; the prosecutor cannot alone bind the trial judge, and no statement is protected unless it proves substantial, sincere and complete.

Closing the investigation and trial

When the investigating judge considers the file complete, it returns to the prosecutor and the chambre du conseil settles the procedure (règlement de la procédure). The chamber may find that there is no case to answer, or refer the accused for trial. Most serious offences are tried by the correctional court (tribunal correctionnel) sitting with professional judges; the jury-based assize court is reserved for the gravest crimes not otherwise reclassified. Hearings are public, the proceedings are conducted in the language of the judicial district (French, Dutch or German) with a right to interpretation, and judgments are open to appeal and, on points of law, to review by the Court of Cassation. Companies can be prosecuted in their own right and are subject to the same procedural framework.

Points to keep in mind

• Time limits are counted in hours and days, not weeks. Counsel should be instructed before the first police interview, not after the warrant.
• Pre-trial detention is the exception and must be re-justified at each review; the most effective work is often done before the chambre du conseil, not at trial.
• Negotiated outcomes exist but are supervised by courts. A promise from the prosecution is a starting point, not a result.

This article is provided for general information only and does not constitute legal advice. It reflects the law and the authors' views at the date of publication. For advice on a specific situation, please contact the firm.