De nawerking van straf(proces)rechtelijke regels bij de administratieve sanctionering van misdrijven

Abstract:In the European member states there is an ongoing tendency to decriminalize criminal offences. In Belgium this decriminalization has repeatedly adopted a soft form. Soft decriminalization means that the offence remains criminally punishable but the legislator provides for the possibility to deal with the offence administratively as an alternative to criminal prosecution. This soft decriminalization therefore results in in a hybrid category of infringements, which we refer to as mixed (criminal) offences. If such an offence is established, a competent authority (usually the public prosecutor) has to act as playmaker and determine discretionary whether the mixed offence has to be sanctioned criminally or administratively. This choice, which is uncertain for the offender, determines the nature of the prosecution and is thus not neutral or insignificant. Indeed, the decision to proceed administratively transforms the conduct identified as a criminal offence into a kind of 'ex-criminal offence' (or simply an "ex-offence"). The label ex-offence is appropriate because the choice to sanction the offence administratively implies that the rules of the Criminal Code and the Code of Criminal Procedure are in theory not (or no longer) applicable. Consequently, the question arises once it has been decided to follow the administrative track, what rules should apply to these administrative sanctioning proceedings. Currently, the legislator has not given this enough thought. Each and every administrative sanctioning regime is governed by separate and different rules. The result is a fragmented and scattered patchwork of regulations. This doctoral thesis therefore seeks to help shape punitive administrative enforcement in response to ex-offences and investigates, in particular, whether some criminal (procedural) rules should not have an influence in (and thus apply to) administrative enforcement regimes for these so-called ex-offences. The central research question is therefore: 'Which criminal (procedural) rules should affect or continue to affect administrative enforcement procedures if it is decided to deal with a mixed criminal offence exclusively through an administrative sanctioning procedure?' To answer that question, we have scrutinized in Section I of this thesis the decision on how to deal with a mixed offence, i.e. whether or not to criminally prosecute the offence and the corresponding interaction between the public prosecutor and the administration. Indeed, If a mixed offence is established, the competent authority (usually the public prosecutor) determines discretionary whether the mixed offence has to be sanctioned criminally or administratively. Thereby the question arises whether it is actually necessary to choose at all, or whether both enforcement regimes can simply be cumulated. Despite that recent European case-law has nuanced the non bis in idem-principle somewhat, we recommend a well thought-out una via mechanism (so a single-track system instead of a two-track system) as the surest way to avoid a violation of the non bis in idem-principle. In the following sections, we have examined what ensues from the choice to follow the administrative track. Specifically, we looked into how the administrative sanctioning regimes deal with concepts that are criminal law referred to as perpetration and participation, causes of justification and excuse and illegally obtained evidence. These three themes were addressed in respectively Sections II, III and IV. In all of these Sections, we came to the (same) conclusion that the current state of affairs is unsatisfactory. Indeed, the administrative track is characterised by a lack of legal certainty and coherence. For instance, Section II showed that it is not clear whether those whom the Criminal Code regards as perpetrators of or participants to a criminal offence are also considered offenders in the administrative track. Indeed, administrative sanctioning regimes contain no or only unclear provisions on who may incur an administrative sanction. Moreover, the administrative sanctioning regimes that that do define to whom the administrative sanction may be imposed vary notably, so that the persons liable to an administrative sanction differ per administrative sanctioning regime. Consequently, it is difficult to discern who may be subject to an administrative sanction and thus be identified as an offender. In Section III, we established that the conditions which must be fulfilled/have to be satisfied by the ex-offence in order to be able to sanction the offender administratively (i.e. the conditions for the existence of the ex-offence) and especially the causes of justification and excuse which neutralize the unlawfulness of the conduct and the culpability of the offender and thus prevent the offender from being sanctioned are not clear either. Finally, it follows from Section IV that the admissibility of illegally obtained evidence in the administrative track also requires clarification. Clear-cut criteria that determine when to exclude illegally obtained evidence need to be established. To address the current legal uncertainty and incoherence, we have suggested to introduce a framework regulation that would, in principle, apply to all administrative sanctioning regimes. A comparison with the legal regimes applicable in the Netherlands and Germany, both of which have such a framework regulation, provided us some inspiration. For the concrete elaboration (the further details) of this framework regulation, we also took into account the minimum guarantees resulting from Articles 6 and 7 ECHR, the principle of equality as interpreted by the Constitutional Court and the requirements arising from EU law. Although we started from the premise that some alignment with criminal law is required, the framework regulation for administrative sanctions should, on the other hand, also take into account the singularity (i.e. the characteristic traits) of administrative sanctions. After all, the peculiarity of the administrative sanctioning regimes creates a certain margin for deviations from the criminal (procedural) rules. If the administrative track has to be a copy of the criminal law track, it has little added value. Any deviation to create that added value must, however, be justified. Ultimately, this trade-off between the necessary influence by criminal law and the singularity of administrative sanctions resulted in three proposals: (1) on the persons liable to administrative sanctions (i.e. defining the scope ratione personae of administrative sanctions); (2) on the conditions for the existence of an ex-offence as legal ground for administrative sanctioning; and (3) on the admissibility of illegally obtained evidence in the administrative track.

Publication year:2023

Accessibility:Closed