For the first time in 150 years, Belgium has a completely renewed Penal Code that better reflects contemporary norms and values, simplifies the justice system's structure and focuses on punishment and rehabilitation.
Belgium's current Penal Code was introduced in 1876 and is largely based on the 1810 Code Napoléon. It lagged behind social norms for decades and had become "an outdated house with many outbuildings" that is now being replaced with a simple and coherent eight-level system.
"The new Criminal Code has been worked on for years and is a work of many hands. It is the final piece of the contract we make with each other: what we stand for as a society, what is and isn't allowed," said Federal Justice Minister Paul Van Tigchelt.
Quite a few provisions, concepts and offences still reflect 19th-century morality and are no longer compatible with what citizens expect from the Justice Department. Property crimes, for example, were in some cases punished more severely than the violation of a person's physical integrity.
Those who committed burglary with theft and rape could, in theory, be punished more severely for the theft than for the rape. This has already changed with the adaptation of the sexual penal code as a preamble to the new Penal Code.
Minister of Justice Paul Van Tigchelt. Credit: Belga/Hatim Kaghat
Over the past century and a half, incremental changes to the Penal Code have been made continually, which has created a patchwork of legislative amendments and new laws to keep the outdated rules usable. As a result, criminal law is difficult to unravel even by experts, let alone for citizens.
"The new Penal Code is also an important step forward for victims, with harsher penalties for offences such as sexual violence, intrafamily violence and terrorism," Van Tigchelt said. "We also built in more safeguards to protect society from people with dangerous psychiatric problems. And we start from a scientific understanding of which punishments work best."
Under the new rules, punishment and imprisonment will increasingly be used as a last resort or ultimum remedium. Imprisonment is no longer seen as the solution to everything, but as one of the possible punishments. This is reflected in the levels of punishment and the types of punishment the judge can impose.
Levels 1 to 8
For offences falling under level 1, the lightest type of crimes, prison sentences are no longer possible. These include libel, slander, breach of secrecy of correspondence, unintentional arson, minor forms of vandalism and more.
These are cases where the scientific consensus indicates that prison sentences are of no use (or even cause more harm) and increase the likelihood of recidivism. In these cases, other forms of punishment – such as community service, a fine, probation, or forfeiture – can better help ensure that the underlying causes in the convicted person are addressed and they do not relapse into the same criminal behaviour.
Level 2 offences such as discrimination, common theft, trespassing, breach of secrecy of investigation, perjury and forgery should in principle not be punished by imprisonment either. However, a prison term of six months to three years is among the options.
If the court imposes a prison sentence, it must justify why the objective of rehabilitation cannot be achieved with another type of punishment. The judge should ensure that the chosen sentence is as effective as possible so that the risk of recidivism is minimised.
A man in court. Credit: Belga
For more serious offences, linked to levels 3 to 8, prison is still the main penalty.
Level 3 offences, punishable by prison terms of three to five years, include theft by force or threat, extortion, abuse of trust, fraud, money laundering and public bribery. Level 4 crimes are punishable by prison terms of five to ten years, and include kidnapping, torture, rape, participation in a criminal organisation as a leading person, glorification of terrorism and illegal organ trafficking.
For level 5 crimes, such as armed robbery, hostage-taking and arson in a premises where the perpetrator may suspect that persons are present, prison sentences of ten to 15 years are warranted. Level 6 crimes, with prison sentences of 15 to 20 years, include leading a terrorist group, rape of a minor and ecocide.
Level 7 crimes, punishable by 20 to 30 years' imprisonment, include manslaughter, sexual violence resulting in death, and torture resulting in death. Lastly, highest on the scale are level 8 crimes, which are punishable by life imprisonment and include offences of murder, intrafamily manslaughter, genocide and crimes against humanity.
Recidivism and discrimination
Aggravating elements in a crime increase the level of punishment: committing a crime where the victim is a minor, where there are injuries, deaths or the victim is in a vulnerable condition are some examples of aggravating components.
To illustrate this, the basic offence of rape is punishable at level 4, but if it is committed, for example, in respect of a minor over 16, it is punishable at level 5. If committed towards a minor under 16 or a vulnerable person, it is punishable by level 6. If the rape results in death, it is punished with level 7.
In addition to components, there are also aggravating factors. These are elements from the case file that the judge should consider in order to pronounce a heavier sentence within the same sentence level.
If there is recidivism (being a second conviction for the same offence), the punishment may be increased by one level. In a number of cases listed in the law, the most serious crimes, the judge will be obliged to take into account the fact that the offender has been previously convicted when determining the punishment level.
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Additionally, as discrimination can manifest itself in many different ways, the discriminatory motive has also been provided as a possible aggravating factor for any offence. The already existing grounds of discrimination such as skin colour, religion, disability, gender, sexual orientation or gender reassignment, among others, are expanded to include gender identity and gender expression.
The new Criminal Code will soon be published in the Belgian Official Gazette and will enter into force two years after its publication, giving Justice and all its partners time to adapt.
