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Analysis

Reform of the Court of Assizes: quo vadis?

How the Constitutional Court partly annulled Potpourri II's general correctionalisation and what alternatives exist for reforming the Court of Assizes.

Staircase inside the Palace of Justice in Brussels
Staircase inside the Palace of Justice in Brussels. Photo: Davidh820, CC BY-SA 4.0, Wikimedia Commons.

Translated from Dutch. The original is the authoritative text. Read the original.

Key points

Potpourri II (2016) allowed any crime to be correctionalised and raised the criminal court's maximum sentence to 40 years, partly sidelining the Court of Assizes. On 21 December 2017 the Constitutional Court partially annulled this under articles 10, 11 and 13 of the Constitution for lack of objective criteria, and Minister Geens' proposed criminal chambers were later abandoned. The authors look to Germany, Denmark, France and the Netherlands for alternatives such as a different jury composition, joint deliberation on guilt and a right of appeal.

Wooden judge's gavel on its sound block, symbolising the reform of the Belgian Court of AssizesWith the introduction of Potpourri II on 5 February 2016, Minister of Justice Koen Geens reformed the Court of Assizes. Since Belgium's independence, that Court had jurisdiction to try the most serious crimes. The reform came after years of debate on the cost and impact of assizes proceedings and was brought about by making use of the technique of ‘correctionalisation’. Through correctionalisation it was possible, after mitigating circumstances had been accepted by the investigating courts, the public prosecutor's office and the trial courts, to bring crimes that would normally come before the Court of Assizes before the criminal court. In this way the Court and the popular jury could be relieved without a constitutional amendment. The scheme was, however, found unconstitutional by the Constitutional Court. Minister Geens' proposal to replace the Court with ‘criminal chambers’ was not a success either. Since 25 April 2018, hearings on the future of the Court of Assizes have again been organised in the Justice Committee.In this article we explain the reasons for the partial annulment of Potpourri II and offer possible alternatives for trying the most serious offences more (cost-)efficiently.

Characteristics and problems of the Court of Assizes

The Court of Assizes is a non-permanent court that is only convened when the Indictment Chamber decides to refer an accused to it. That is the case for a political offence, a press offence or an offence punishable by imprisonment for more than twenty years. The Court is composed of three judges and twelve jurors. The three judges consist of a judge of the Court of Appeal sitting as president and two judges of the court of first instance. The jury is made up of twelve Belgians chosen by lot. A crucial characteristic is that all investigative acts of the judicial investigation are repeated, since jurors may not consult the file drawn up during the investigation phase.

In recent years the Court of Assizes has faced extensive criticism. Two of the main problems are that assizes trials are too expensive and time-consuming. The costs of an assizes procedure are significantly higher than before the criminal court. The fact that all hearings are repeated extensively also means that the trial often lasts longer than a month. Combined with the fact that three judges are each time taken away from their own court for that period, this does not help the judicial backlog. Another frequently heard criticism is that the popular jury is not representative and that citizens are more easily influenced than professional judges by the media or by the oratory of criminal defence lawyers. Minister of Justice Koen Geens already showed himself to be no champion of the Court in his 2015 Justice Plan. This was given concrete form with the introduction of Potpourri II.

Potpourri II: “Towards a new Court of Assizes?”

With Potpourri II (in full Wet tot wijziging van het strafrecht en de strafvordering en houdende diverse bepalingen inzake justitie, which entered into force in January 2016), Minister Geens aimed to make criminal proceedings cheaper and more efficient, so that, among other things, the expensive and slow proceedings before the Court of Assizes would be done away with. Potpourri II was the second act in a series of five Potpourri acts, each of which sought to amend or repair provisions of civil, criminal and procedural law in the short term with the aim of reducing the judicial backlog and modernising the justice system.

Potpourri II amended a range of provisions in the Code of Criminal Procedure and other legislation in criminal law and criminal procedure. Crucial for the reform of the Court of Assizes was the repeal of the exhaustive list of crimes eligible for correctionalisation (art. 121-123 Potpourri II) set out in articles 2, 3 and 5 of the Act on mitigating circumstances. A crime is correctionalised when the public prosecutor's office, the investigating courts or the trial courts accept mitigating circumstances to such an extent that the crime can be requalified as a lesser offence (wanbedrijf). The consequence is that the criminal court acquires jurisdiction. Before Potpourri II this technique could only be applied to offences included in the exhaustive list. By deleting the list, the public prosecutor's office, the investigating courts and the trial courts could consequently invoke mitigating circumstances for any offence in order to correctionalise the crime and remove it from the jurisdiction of the Court of Assizes. To complement the repeal of the exhaustive list, the criminal court was given the power to impose sentences of up to 40 years' imprisonment. De facto, this meant that the Court of Assizes was partly sidelined. The technique of correctionalisation led, just as in the past, to extensive controversy.

Judgment of the Constitutional Court: partial exit for Potpourri II

The French-speaking and Dutch-speaking sections of the League of Human Rights took the initiative to challenge the scheme in Potpourri II. For many lawyers this came as no surprise. In legal scholarship the new scheme had already been called into question. For the Council of State and the High Council of Justice, too, the absence of concrete criteria for correctionalisation proved to be a stumbling block.

In its assessment the Constitutional Court took particular account of article 13 of the Belgian Constitution (Const.), read in conjunction with articles 10 and 11 Const. Article 13 Const. provides that no one can be separated, against his will, from the judge assigned to him by law. Articles 10 and 11 Const. guarantee equal treatment. On the basis of the right to legal certainty, litigants must be able to determine, on the basis of objective criteria, which judge has jurisdiction to hear their case. By deleting the exhaustive list of crimes eligible for correctionalisation, the investigating courts, the public prosecutor's office and the trial courts only have the subjective criterion of mitigating circumstances to determine the competent court. A risk of arbitrariness is not non-existent. Moreover, as a result of the increase in the maximum sentence that can be imposed by the criminal court, an offender could receive a heavier sentence than in the situation in which the Court of Assizes would try the case. A difference in treatment must be reasonably justified in accordance with articles 10 and 11 Const., and the Court saw no reasonable justification for the possible inequality that may arise in the event of correctionalisation through mitigating circumstances.

The Constitutional Court consequently held that persons in the same situation cannot be certain, on the basis of objective criteria, of being tried according to the same rules on jurisdiction and procedure, and may, through arbitrariness, receive a heavier sentence depending on the competent court. The element of mitigating circumstances thereby loses its original value as a means of individualising the sentence. On 21 December 2017 Potpourri II was therefore partially annulled. The constitutional review made clear that a new scheme must rest on stable foundations. According to the Constitutional Court, artificially circumventing the Court of Assizes by means of mitigating circumstances is unacceptable.

The criminal chambers: not a success story (either)

Minister Geens remains determined to reform the Court of Assizes. His proposal to replace the Court with an “Assizes light” version already predated the Constitutional Court's annulment judgment and even the entry into force of Potpourri II. Geens' idea was to introduce criminal chambers within the court of first instance. The crimes that originally came before the Court of Assizes would then be tried by four jurors and three professional judges. Parties would also be able to appeal against the judgment delivered within a criminal chamber, which is not the case for the Court of Assizes. Although this would benefit the rights of the defence, one may wonder whether it would not undermine the cost- and time-saving intention. The top of the judiciary, however, declared that it did not favour the proposed criminal chambers. In their view, they would contribute to the judicial backlog and would do anything but lower the cost per procedure. No consensus could be found within the government either. The proposal was consequently shot down after three years. Minister Geens agreed to wipe the slate clean and start new talks. Since 25 April 2018, hearings on the future of the Court of Assizes have again been organised in the Justice Committee. Five questions are central.It remains to be seen what will follow from these talks.

Inspiration from abroad?

A comparison with other countries teaches us that other, more efficient solutions exist. The Belgian Court of Assizes is based on the “échevinage” model. Concretely, that model means that professional judges and lay judges deliberate together and try the offence. In Belgium, lay judges – in principle – rule alone on the question of guilt. Professional judges only give advice on the question of guilt (art. 102 – 114 Potpourri II). Subsequently, both deliberate together on sentencing. Lay judges are either ordinary citizens, such as the jurors in the popular jury, or professionals. In the Belgian labour court and commercial court, however, the lay judges are exclusively professional. In Denmark and Germany, moreover, only professional lay judges are deployed for trying the most serious offences, to promote efficiency and professionalism. On that point Belgium could learn from these countries.

In France, similar Cours d'Assises rule on the most serious offences, but the panels of three professional judges and six jurors decide jointly on the question of guilt. As already mentioned, in Belgium the jury – in principle – decides alone on the question of guilt. In that sense France has a procedural-economy advantage. In addition, this system offers the possibility of lodging an appeal. Both respond to the criticism about the jury's lack of professionalism.

The Netherlands, in turn, is praised for its pragmatic approach to dealing with serious offences. For almost 200 years, Dutch criminal justice has no longer used a popular jury. Rather, it is ordinary courts that deal with cases from various fields of law, including criminal law. Proceedings before the Dutch court can be compared with proceedings before the Belgian criminal court, which means that the trial is based on the file drawn up in the investigation phase. Time and money are saved, so that the Dutch courts also have a procedural-economy advantage.

Conclusion

The minister's initiative to reform the Court of Assizes lacked legal stability, and the proposal for criminal chambers also lacked the refinement needed for the end result to be entirely satisfactory. Perhaps the foreign examples can serve to feed the upcoming reform consultations. Elements such as ‘an alternative composition of the jury’, ‘a joint decision on the question of guilt by judges and jury’ and ‘the possibility of appeal’ could form part of a future solution.

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