Annelies Balcaen & Tom Vander Beken 20 February 2009 Criminal justice and environmental crimes in Belgium. Actors and decisions. Annelies Balcaen & Tom Vander Beken 20 February 2009

1. The Belgian criminal justice system Appeal Referral Investigation Complaint Report Professional report from police or inspection services Public prosecutor’s office Judicial investigation Dismissal Mediation Amicable settlement Prosecution Onderzoeksrechter (investigative Judge) Judge’s chambers Chamber of accusation Crown Court Court of cassation Discharge onderzoeksrechter No prosecution internment Postponement CRIMINAL COURT Execution of sentences Cour of appeal

2. Discretion and actors in Belgium Investigation (police, inspection services): no formal ground for discretion Prosecution (public prosecutor): Expediency principle – discretion whether to prosecute or not Sentencing/adjudication (court): Discretion about the penalty between the boundaries of the law Execution of sentences (Minister of Justice, Minister of Finance, implementation courts, public prosecutor): discretion depending on the sanction and legal framework

3. The public prosecutor: between expediency and legality Legal choice to prosecute, to dismiss or to decide to propose a conditional dismissal (e.g. if a certain amount of money is paid, the case is dismissed – transaction) – Expediency Demand for more “legality” (equalilty, predictability) and change in the legislation in the nineties: the Minister of justice (advised by the board of prosecutors general) can issue guidelines for the prosecution policy – e.g. Guideline on Prosecution Policy for Environmental Crimes of 2000. Challenge: what balance between expediency and legality?

4. The public prosecutor Some facts and figures (from the past) Many cases on environmental crimes are dismissed (46,1% in the period 1993-2002 for all districts of the Ghent Court of Appeal) for technical (no crime, no evidence, no known suspect) and expediency (regularisation of the situation by the suspect, limited social impact) reasons. In about 13,9% of the cases (same period, same districts) a transaction was proposed.

5. The court Moving away from discretion? The law provides courts with a considerable discretion to decide on the penalty (sentencing). There are few guidelines in the law for sentencing. However, disparity in sentencing is considered more and more a problem. No concrete solutions or proposals to this problem yet (sentencing guidelines?).

6. The execution of sentences A play without a director Considerable problems in the execution of sentences Prison sentences are not always executed (sentences up to 6 months and sometimes up to 1 year and more) remain unexecuted. Monetary sanctions (fines, confiscations) are not always executed (in some districts up to more than 50%) or only after a long time. A system with many actors (Minister of Justice, Minister of Finance, public prosecutor, implementation courts) and few coordination

7. Discussion and questions The Belgian criminal justice system tries to find a balance between expediency and legality moving away from unlimited expediency. Q1. Can you see a similar evolution in your country? Q2. Are there specific (policy) guidelines on the level of prosecution (to the police or prosecution authorities?) in your country and figures about the prosecution policy in environmental crimes? Q3. Are there specific (policy) guidelines on the level of sentencing in your country and figures about the sentencing policy in environmental crimes?