The amicable settlement under fire?
On 01/04/2020 Member of Parliament Marco Van Hees (PvdA) introduced a bill aimed at undoing the expanded amicable settlement in criminal cases.
Mr. Van Hees' proposal is based on the fact that the regulation, as it currently exists, creates an inequality of treatment between the rich and the poor. This inequality is therefore the main reason why he is introducing the bill.
The counterarguments
More specifically, Mr. Van Hees cites that amicable settlements in criminal cases would be anti-democratic because perpetrators of financial crimes could get away with it, which detracts from the deterrent effect of criminal law.
Next, the various changes to the amicable settlement are discussed. The focus here is on the changes that led to the broadening of the conceptAs a result, the out-of-court settlement can currently be applied to a whole host of crimes.
As a result of this broadening, so to speak, a difference is once again created between the different classes in our society and especially since cases of major tax fraud are not excluded from the scope.
Mr. Van Hees then cited several examples of situations in which the extended amicable settlement was or was not applied. The most striking example: the muffin thief who had stolen some expired muffins from a dumpster and still had to appear before the correctional court.
Whether the prosecutor's office somehow proposed an amicable settlement or the muffin thief himself asked for it - which is his right, however, is left open.
In conclusion, the Labour Party member finally states the following:
"Extended amicable settlement in criminal cases must be reformed now. After all, the courts no longer give the impression of being equal for every citizen. The administration of justice must be the same for everyone, rich or poor."
The ignored pro-arguments
While there is certainly something to be said for the argument that there is an indirect distinction between rich and poor when the extended amicable settlement is applied, Mr. Van Hees forgets a number of arguments in favor of the extended amicable settlement.
It should be noted, for example, that the main purpose of the amicable settlement is to quickly impose an appropriate sentence in financial and economic criminal cases, which are often very complex and require a lot of time and resources (which is certainly the case when major tax fraud is involved).
After all, it would be a greater waste of resources were criminal proceedings to be initiated in court only to see the defendants ultimately sentenced to a fine and other pecuniary penalties, not much different in magnitude from the sum that should have been paid under the out-of-court settlement - if the defendants are convicted at all.
In addition, it should also come as no surprise that a circular from ex-minister Koen Geens states that "the uncertain financial situation in which the person concerned would find himself and which would make it impossible for him to pay the sum of money owed himself [...] [may] result in another measure (formation, treatment or service) or prosecution appearing more appropriate before the court".
Nor should it be surprising that Mr. Van Hees cites the same paragraph as an argument against the amicable settlement, on the basis that the circular would show that the amicable settlement is only for people with a lot of money.
However, the PvdA parliamentarian forgets here that the public prosecutor's office must devote just as many resources to preparing an amicable settlement - after all, without an initial investigation, the suspect will not be moved to agree to an amicable settlement either - and then also wants to be quasi certain of the chances of its successful completion.
Therefore, if it is clear from the outset that the defendant will not be able to compensate the social damage - which will be the basis for the sum to be paid - it is logical that the prosecutor's office will not pursue the amicable settlement.
Moreover, the latter argument also in no way shows why the amicable settlement would not be useful.
Finally, it should be emphasized that the extended amicable settlement is indeed more often applied in financial cases, in which statistically rich people are more often involved. But this element in no way implies that the concept cannot be applied to other cases involving underprivileged people.
On the contrary, by broadening the scope of the concept, more crimes are covered, allowing more offenders to be considered and allowing the public prosecutor to devote his resources to crimes that, for example, affect the physical integrity of victims; crimes that, by the way, are excluded from the scope of the amicable settlement.
In any case, it can be said that, for the time being, this is only a bill and, therefore, the bullet has not yet been fired.
Of course, when there is more clarity, we will not fail to inform you.
If you would like more information about this, please feel free to contact us at info@bannister.be or 03/369.28.00.
