The police may get involved in several ways:
- upon complaint from the victim; the police officer will then make a report to the authorities and refer the complaint to the public prosecutor; the police may then be requested to hear the suspected person
- upon notification by a third party such as, for example, medical personnel (please see below)
The victim of violence could appoint a lawyer, usually specializing in criminal law or family law. It is usually recommended for a victim of violence to seek advice from experts in order to be duly and fully represented during judicial proceedings (e.g., criminal proceedings or divorce proceedings).
In addition, the victim of violence could contact legal aid offices. These offices provide free services aimed at guiding, helping, advising and representing a victim of violence, who would not have the sufficient resources to appoint a specialized lawyer.
In the same vein, any establishment of public utility and any association with legal personality, which tends to prevent violence within the couple, may initiate legal proceedings when a case of domestic violence arises.
Considering the necessity for a victim of violence to provide evidence thereof in court, engaging lawyers or any other specialized offices may be particularly appropriate (e.g., to gather evidence such as medical certificates, pictures, witnesses).
There is also a green number "Ecoute Violences Conjugales" or "1712" that victims of domestic violence or stalking can call for professional help.No, the principle under Belgian criminal law is freedom of proof.[30] The prosecuting party can use any means to prove its claim. However, the more evidence the prosecutor has, the better for that party's case.
Examples of evidence are: medical/psychological exam/certificates; pictures; letters; statements; text messages; emails; police reports; etc. Any piece of clothing, hair or any other print of the author can also be used as evidence. Certain initiatives and collaborations with other services have been undertaken in order to facilitate the gathering of evidence and deal with victims of domestic violence and sexual aggression cases.[31]
However, in the following circumstances, the judge may not take into account certain evidence:
- When that evidence has been unlawfully obtained and for that reason the evidence should be excluded.
Evidence has been unlawfully obtained if it has been obtained:
- as a result of a crime (for example, by means of theft)
- when breaching a criminal procedure rule
- when breaching any right to privacy
- with disrespect to the rights of defense (for example, by using violence, torture, etc.)
- with disrespect to the right to human dignity[32]
- However, that evidence should not be excluded in all circumstances. Pursuant to a decision of the Belgian Supreme Court of 14 October 2003,[33] unlawfully obtained evidence should only be excluded in the following three circumstances:
- when certain formalities have not been complied with and the law prescribes that that noncompliance results in the nullity of that evidence
- when the unlawful act has affected the credibility of the evidence
- the use of the unlawfully obtained evidence conflicts with the right to a fair trial[34]
- When the accused has not had the opportunity to contest the evidence.
It will eventually be the judge or the jury that will have to determine the value of the evidence and whether it is sufficient to decide beyond reasonable doubt that the accused is guilty of the relevant crime.
Chapter VIII of the Criminal Code describes the grounds for justification and exemption.
1. A ground for justification is a circumstance recognized by law that nulls the unlawful or illegal character of an alleged act, for example, legitimate self-defense, provocation, state of emergency or irresistible compulsion are grounds for justification.
- Legitimate self-defense
A perpetrator can claim that he or she acted in legitimate self-defense, if the following conditions are fulfilled.
The attack must be:
- illegal
- current or imminent
- directed against people
- serious
The self-defense must be:
- immediate
- proportional to the attack
- necessary
- take place before or during the attack
- done by means of assault and battery or homicide
- Irresistible compulsion
There is no crime if the accused or accused person at the time of the facts was suffering from a mental disorder that invalidated his or her judgment or control over his or her actions or if he or she was compelled by a power he or she was unable to resist (Article 71 of the Criminal Code).
- Other
Other general justifications that exist, though do not appear to be relevant in the case at hand, including provocation, state of emergency, government measures, the objective impossibility to abide by the law, ignorance, error, good faith, coercion and force majeure.
2. Grounds for exemption is a specific reason embedded in the law that reduces or annuls the punishment of the crime. The types of grounds for exemption are the following.
- Penalty reduction is possible in the act of:
- provocation
- declaration to the government
- Punishment can be waived altogether in:
- some cases of relatives and affinity
- declaration to the government
Yes, the wrongly accused may file a defamation complaint (Article 443 of the Criminal Code).
Article 444 of the Criminal Code provides that a person found guilty of slander or defamation will be punished by imprisonment for eight days to one year and a fine of EUR 26 to EUR 200.[35] However, the minimum penalty may be doubled where one of the motives for the offense is hatred, contempt or hostility toward a person on account of his or her alleged race, skin color, descent, national or ethnic origin, nationality, sex, sexual orientation, civil status, birth, age, wealth, religious or philosophical conviction, present or future state of health, disability, language, political conviction, trade union conviction, physical or genetic characteristic or social origin.Below the age of 14
The legal age of sexual consent is 14. Below the age of 14, any act of sexual penetration is considered as rape with the aggravating circumstance of violence, even if the victim consents (Article 379 of the Criminal Code).
- Between the ages of 14 and 16
Between the ages of 14 and 16, a minor is able to give sexual consent if the sexual partner is no more than five years older than the minor and does not hold a position of power over the minor. Outside of those boundaries, the sexual partner can be charged with indecent assault.
- Above the age of 16
Once a person has reached the age of sixteen, he or she is able to choose his or her preferred emotional and sexual partners. However, if it concerns a minor, parents are still able to exercise their parental authority, which allows them to supervise the minor's relationship.
- In the context of rape
Regardless of age, the applicable conditions of rape are fulfilled if a person commits an act of sexual penetration of any kind or any means on a person who did not consent (Article 375 of the Criminal Code). The law emphasizes, in particular, that consent is absent in the following two circumstances:
- the act was forced by means of coercion, threat, surprise or cunning
- the act was facilitated by an inadequacy or a physical or mental disorder on the part of the victim
Yes, in accordance with the below:
- Irresistible compulsion
There is no crime if the accused or accused person at the time of the facts was suffering from a mental disorder that invalidated his or her judgment or control over his or her actions or if he or she was compelled by a power he or she was unable to resist (Article 71 of the Criminal Code).
- Legitimate self-defense
As further elaborated upon in question 5.3.1, a perpetrator can claim that he or she acted in legitimate self-defense, if the conditions thereof are fulfilled.
If a witness does not testify honestly and completely, the rules relating to false testimony and perjury may apply.
False testimony means the punishable offense of falsifying the truth during an irrevocable testimony under oath, with fraudulent intent or with the intention to harm and that potentially causes harm (i.e., the false testimony could have an impact on the court's assessment).[36] More precisely, false testimonies and perjury are punishable offenses based on Chapter V (Articles 215 to 226) of the Criminal Code. The convicts may face imprisonment and in certain circumstances, in civil cases, fines. The duration of the imprisonment depends on a variety of factors, such as the type of case and, in some cases, the severity of the punishment imposed on the convicted person.
Criminal law provisions in respect of false testimony and perjury do not apply to children who are younger than 16 or to persons who are related to the accused when the statements made by that person are in favor of the accused and are not made under oath.Persons bound by professional secrecy
In principle, if a person is summoned to testify as a witness, that person is obliged to comply with that request.[37]
There are certain categories of persons (such as, among others, doctors, pharmacists, midwifes, lawyers) who are bound by professional secrecy. Article 458 of the Criminal Code provides that a breach of professional secrecy will not be punishable when the professional secrecy is breached during a testimony in law (i.e., under oath). This Article 458, however, does not oblige the person who is bound by professional secrecy to testify under oath, but if they choose to do so, that breach will not be punishable.[38]
In addition, Article 458-bis of the Criminal Code allows persons bound by professional secrecy (however, not lawyers who have received confidential information from their client that may incriminate their client) to inform the public prosecutor's office of domestic violence of which they are aware in the following circumstances:
- in cases of serious and imminent danger for the physical and psychological integrity of the protected person (i.e., victim of domestic violence) and the person bound by professional secrecy cannot protect that integrity alone or with the help of others
- in cases where there are indications of a serious and real danger that other persons will become victims of domestic violence and the person bound by professional secrecy cannot protect the integrity of those persons alone or with the help of others
However, Article 458-bis of the Criminal Code only allows those persons to inform the prosecutor's office, it does not oblige them to do so. Article 422-bis of the Criminal Code, which provides that anyone should give help to someone who is in great danger (without putting himself/herself or others in serious danger), will in any case continue to apply.
In addition, Article 30 of the Criminal Code provides that any person who witnesses an attack against public security or the life or property of another person, is obliged to inform the competent public prosecutor of that fact.[39]
The legal exception to the professional secrecy may not exclude that any person who is bound by professional secrecy may become subject to disciplinary action. Therefore, those persons may often obtain advice within their professional organization as to whether they may testify and which details may be disclosed.[40]
The judge will eventually control whether the professional secrecy is a valid excuse for not having to testify.
The right not to incriminate oneself
The right not to incriminate oneself is a principle under Belgian law. This means that (i) a person cannot be forced to testify if that would incriminate himself/herself and, (ii) that a suspect cannot be interrogated under oath.[41]
Children who witnessed domestic violence can be called upon to testify (please see 5.4.5).
Criminal policy measures have been taken in order to identify the children in domestic violence cases and to ensure that children who are victims of domestic violence are recognized as separate victims.[42] Though GREVIO notes that children are not always recognized as covictims by front-line services.[43] These measures also seek to enhance the information collaboration between the criminal courts and the civil family and juvenile courts with respect to children, where such information may be taken into consideration when civil courts rule on custody and visitation rights.[44]
Furthermore, the responsibilities for dealing with child witnesses are divided between different sectors and regional authorities where certain initiatives have been taken on a regional level in order to enhance the collaboration between the different sectors.[45] However, in its latest report, GREVIO urges the Belgian authorities to make it easier for child witnesses to access protection and support services and notes that certain improvements are needed for the assessment of the impact of domestic violence on child witnesses by child protection services (such as specific facilities for children in shelters).[46]Yes.
Specific measures exist for questioning minors who have been victims or witnesses to certain felonies, which include audiovisual questioning (Chapter VII-bis of the Criminal Code). Furthermore, the minor has the right to be accompanied by an adult of his or her choice, except when the Prosecutor's Office or the investigating magistrate considers otherwise in a reasoned decision in the interests of the minor or in order to discover the truth. In addition, if a minor witnesses a violation of the integrity of a person (sexual offense, assault, etc.) and a recorded questioning has been conducted, the court may still consider that the minor's presence at the trial is necessary to establish the truth. In that case, the minor may conduct a video conference to testify to avoid confronting the suspect.The fact that the victim is a minor constitutes an aggravating circumstance to the charge of assault and battery, which increases the penalties depending on the felony (Article 405-bis of the Criminal Code). Furthermore, pursuant to Article 405-ter of the Criminal Code, the minimum penalties for intentional corporal injuries and willful manslaughter (other than killing) will be higher if the aggravator is:
- the father, mother or other ascendants, or on the collateral line to the fourth degree
- any other person who has authority over the minor
- any person who has the child in his or her custody
- a person who occasionally or habitually lives with the victim
Domestic violence is established as an aggravating circumstance pursuant to Article 410(2) of the Criminal Code. This means that the penalty will be higher (and, in certain cases, may be doubled) if the perpetrator has committed an offense under Articles 398 to 405 of the Criminal Code against:
- his or her spouse
- the person with whom he or she cohabits or has cohabited and maintains or has maintained a lasting emotional and sexual relationship
Yes, Article 410 of the Criminal Code.
Yes, for intentional homicide (which does not qualify as murder) and intentional bodily harm, several standard, nonaggravated sentences exist. For the intentional homicide, the punishment is imprisonment for five to 10 years, if the beatings or injuries are: (i) inflicted intentionally but without intent to kill; and (ii) cause death. If these acts of violence were premeditated, the sentence is imprisonment for 10 to 15 years (Article 401 of the Criminal Code). For deliberately wounding or hitting a person the sentence is imprisonment for eight days to six months and/or a fine of EUR 26 to EUR 100 (Article 410 of the Criminal Code).[47] If the violence is conjugal, the maximum penalty is increased to imprisonment of one year.
Furthermore, a perpetrator can be sentenced to two additional years of imprisonment on top of the above standard sentence, if the act was committed against a:
- spouse
- person with whom the perpetrator cohabits or has cohabited and maintains or has maintained a lasting emotional and sexual relationship
If the act had not constituted a crime, but only a misdemeanor, the minimum penalty would have only been doubled due to the above-mentioned aggravating circumstance of domestic violence.
-
In addition, the following general violent acts are also punishable:
- psychological violence is punishable if it constitutes: threats (Articles 329 and 330 of the Criminal Code); inhuman and degrading treatment (Article 417-bis); calumny and defamation (Article 443); and insults (Article 448)[48]
- sexual violence, including rape
- forced marriage
- forced abortion and forced sterilization
- murder
- torture and inhumane treatment
- stalking
The violation of a temporary residence ban in cases of domestic violence is punishable by imprisonment for eight days to six months and a fine of EUR 26 to EUR 100[49] or one of these penalties only (the same sanction applies for violation of the initial ban ordered by the public prosecutor or the extension thereof ordered by the family court (see Article 5/1 and 5/2 of the Act of 15 May 2012 as amended by the Act of 5 May 2019)).
The infringement of the protective orders obtained on the basis of Articles 223 and 1479 of the Civil Code is, on the contrary, not criminalized. It is, however, possible to request an indemnity for the (additional) damages incurred due to the violation of the protective order.In the context of divorce, the judge must deny the perpetrator of domestic violence the alimony he or she may request from the victim, if the perpetrator committed one or more of the following acts of violence:
- rape
- intentional assault and battery
- administration, without intent to kill, of substances capable of causing death or serious damage to health
- attempted murder
- poisoning
Unlike in cases of less serious misconduct, the judge has no discretion if the partner committed any of the above acts of violence.
Furthermore, the automatic exclusion of the spouse guilty of violence against the spousal victim from entitlement to maintenance is always necessary, whether the acts were committed before or after the separation, or even after the divorce. Where the claimant is accused of domestic violence, the court may nevertheless award him or her a provisional pension, taking into account all the circumstances of the case, and thus bearing in mind the seriousness of the victim's complaint, the dilatory nature of the criminal proceedings, its chances of success and the urgency of the claim for the creditor who is destitute (Article 301(2)(4) of the Civil Code). If a provisional pension is granted in such a case, the court may make the granting thereof subject to the provision of a guarantee, which it determines and the terms of which it fixes (Article 301, § 2, paragraph 4 of the Civil Code). It will have to be reimbursed if the criminal offense for which the public action is initiated is deemed to be established.[50]
Domestic violence is taken into consideration for the refusal of the delegation of sums (Article 221 of the Civil Code). For this to apply, the spouse must be found guilty of one of the facts enumerated by the law, in other words a criminal decision must have been taken. It is also necessary, although the law does not state, that this decision is final. No account may be taken of a conviction that is the subject of an appeal or in respect of which the time limit for opposition, appeal or appeal in cassation is running.Yes, but only if the victim has requested to be involved in the procedure regarding the execution of the penalty through a "victim statement," in which the victim can:
- request to be informed about the decisions of the sentence enforcement court
- communicate which conditions he or she considers appropriate to be imposed, in case the offender would be released early
- request to be heard by the sentence enforcement court[51]