On February 22, 2024, the House of Representatives approved the Bills introducing Books I and II of the Criminal Code, slated to replace the existing 1867 Criminal Code. Book I addresses general criminal law principles, while Book II covers common law offences and penalties. This reform aims to modernise and establish a sustainable criminal code, following numerous unsuccessful attempts to update the outdated 1867 Code. This article will explore key aspects of the new Criminal Code.

Book I

Book I of the new Criminal Code ("New CC") contains the general rules of criminal law, such as the rules relating to the material and moral elements of the criminal offence, perpetrators and criminal participation, the criminal attempt and the various penalties. A number of provisions in Book I are familiar because they correspond to some extent to provisions in the current Criminal Code or are a codification of case law. Nevertheless, modifications or simplifications have also been made to existing concepts.

A number of concepts have already been amended recently and will not be thoroughly reformed in the new code. An example is the criminal responsibility of legal persons.

On the other hand, other provisions and concepts have indeed been revised. A first example is the abolition of the classical tripartite distinction between felonies, misdemeanours and infractions. In the new code, the previous distinction disappears, and the term "criminal offence" will be used. This will, among other things, put an end to the technique whereby a reduction of a felony to a misdemeanour takes place that is currently taking place and which, i.e. leads to the forgery of documents, which is a felony under the old Criminal Code, being reduced to a misdemeanour and thus still being dealt with by regular criminal courts instead of by a court of assizes.

A very relevant provision is article 7 New CC. It addresses the moral element of criminal offences, requiring the perpetrator to act knowingly and voluntarily. This provision further clarifies that the law may impose additional requirements for the moral element to be satisfied. The article discusses general and specific intent, as well as unintentional offences, highlighting the concept of serious fault, defined as serious negligence or lack of caution. Currently, the lightest fault still suffices for i.e. involuntary manslaughter and involuntary assault and battery, but the new code raises the bar. Thus, for a number of criminal offences, the unity of criminal and civil fault will come to an end. However, special acts can still criminalize simple negligence under article 78 of the new Criminal Code.

Another relevant innovation is the extension of criminal attempts to all intentional offences. At present, attempts to commit a crime are punishable, but attempts to commit a misdemeanour are not punishable unless the law so provides. As a result, an attempt to commit fraud is punishable, but an attempted abuse of trust is not. This distinction will therefore disappear. However, for criminal provisions contained in specific legislation, this extension should be read together with articles 77 and 78 New CC.

The rules regarding perpetrators and criminal participation have also been updated. The new code defines various forms of participation. For example, a natural or legal person who knowingly and intentionally contributes significantly to a criminal offence is punishable if he or she fails to act and thereby directly promotes or facilitates the commission of the offence. The new regime abolishes the distinction between co-perpetrators and accomplices and allows participants to be punished as perpetrators.

Another innovation lies in legally establishing the objectives of punishment. Judges must ensure a fair proportionality between the offence and the penalty, considering the unintended consequences of punishment. For instance, the impact on employees can be factored in when penalising a legal entity.

Another innovation concerns the sentences applicable to natural and legal persons. For the sake of clarity and consistency of criminal sentences, a scale of principal sentences, divided into 8 categories, will be introduced. With regard to legal persons, the old fine conversion mechanism as contained in article 41bis of the current Criminal Code will disappear and be replaced by own separate categories of principal sentences. As a result, the penalties for natural persons no longer need to be converted in order to arrive at the penalty applicable to legal persons. For example, for a natural person, in the New CC category 3 is a prison sentence of more than three years up to a maximum of five years, or a deprivation of liberty of more than two years up to a maximum of four years. For legal persons, category 3 corresponds to a fine of more than 360,000 EUR up to a maximum of 600,000 EUR.

Mitigating circumstances can downgrade a sentence to a lower category, such as reducing a category 3 sentence to category 1. Moreover, for offences carrying a category 1 sentence, prison sentences cannot be imposed. Additionally, for legal persons, a community service option, akin to that for individuals, will be introduced. The new code also provides for a number of optional or mandatory additional sentences, such as an additional fine or confiscation, a prohibition on exercising a profession or even the closure of an establishment.

The criminal judge may impose a fine based on the offender's financial gain from the offence instead of an additional monetary fine if the offence was committed for pecuniary gain. This fine, up to three times the value of the gain, can be imposed when the judge deems a monetary fine insufficient for adequate punishment, and it may accompany confiscation. Courts will determine its frequency based on the need for proportionality between the offence and the sentence.

When the new legislation comes into force, the surcharges will be set at zero so that, at least temporarily, pecuniary penalties under the new code will not have to be multiplied by eight, as is currently the case.

In business criminal law, the relationship between Book I of the Criminal Code and special criminal legislation is crucial. Unless specified otherwise, Book I provisions apply to offences in special legislation. The new code introduces a conversion mechanism for penalties when special laws do not use categories 1-8 for principal sentences, affecting laws like the Code of Economic Law or the Social Criminal Code. Monetary fines under special legislation are governed by specific rules, with fines as additional sentences regulated by the special laws (and multiplied by surcharges). The new code also addresses attempts, criminal participation, and mitigating circumstances in special legislation.

Book II

Book II of the new Criminal Code contains the criminal offences related to the violation of the most important values and legal assets of society. Therefore, according to the legislator, it largely reflects the values and norms worthy of protection in our society. The reform includes, among other things, the depenalisation or decriminalisation of certain offences, the introduction of new offences, the adjustment of penalties for certain offences or the amendment of criminal provisions in order to form a coherent whole in the new Criminal Code and/or to better reflect reality.

One such newcomer is ecocide, which is the intentional commission of an unlawful act, by act or omission, causing serious, widespread, and enduring environmental harm. To be punishable, intent and knowledge of the potential environmental damage are required. The definitions of "environment," "serious," "widespread," and "long-lasting" are legally established. The damage must be irreversible or incapable of natural restoration within a reasonable time and extend beyond a limited geographical area. Punishment under Belgian law is limited to violations of federal or international law or acts occurring outside Belgium. Regional environmental protection jurisdiction significantly restricts the offense's scope.

Another addition is the offence of evidence concealment, involving the destruction, hiding, or removal of objects or traces related to a crime to impede its detection or prosecution, with the requisite intent being to conceal a third party's crime or obstruct justice.

Existing offences are undergoing revisions, such as bid rigging, which has been expanded. The new offence involves obstructing the freedom of auction or registration to manipulate competition conditions. Forgery and IT forgery will be restructured within a single article in the new code. Insolvency offences, currently punishable by imprisonment, will be downgraded to category 1. Money laundering provisions are also undergoing further amendments.

Other offences have already been updated recently and are not currently subject to significant changes. For example, abuse of trust has already been rewritten by the act of 12 July 2023.

Coming into force of Book I and II

Books I and II of the new code will in principle take effect two years after their publication in the Belgian Official Gazette, except for provisions on treatment under deprivation of liberty and extended follow-up. However, this timeline is ambitious due to the need for adapting other acts and updating judicial IT systems. Meanwhile, the current Criminal Code remains relevant for some time for offences committed before the new code's implementation, as the most favourable provisions for the accused must be applied.

For further questions, please contact: Yves Lenders, Stijn Lamberigts or Robin De Zutter.