The prior admission of guilt (VES)
The Potpourri II Act of Feb. 5, 2016, introduced a new Article 216 of the Code of Criminal Procedure. This article introduced a procedure whereby the public prosecutor and the accused can enter into an agreement regarding the punishment of a crime. This in exchange for a confession from the accused. This procedure is known as the Preliminary Recognition of Guilt (hereafter: VES), procedure that shows many similarities with the televised American system of plea bargaining or guilty plea. Concretely, in exchange for a confession, the public prosecutor proposes a lower sentence than the one he would demand in the criminal court. This is then the subject of an agreement between the accused and the public prosecutor, which must then be approved (ratified) by a judge.
Although already introduced since 2016, this procedure has only recently been used by the public prosecutor's office in Antwerp. This for so-called EcoFinFisc files, being economic, financial and tax criminal cases. The "white-collar crime. The idea behind this is that the social damage in these cases is mainly financial, and that these are usually very complex discussions. By reaching a deal on punishment, the correctional court can be relieved of such onerous and lengthy proceedings.
Scope
The application of this VES procedure is not legally limited to white-collar crimes. In principle, it can be applied to all crimes except:
- Crimes with a maximum sentence of more than 20 years (murder, manslaughter, etc.)
- Most sex offenses (rape, aggravated sex offenses and offenses against or with the aid of minors)
The law provides that the proposal for a VES can come either from the prosecution, or from the suspect or accused. It is based on a principle of voluntariness, so no one can be forced to cooperate or agree to a request for admission of guilt.
The admission of guilt, prior to trial, can have a great and lasting impact. Therefore, the law provides that this can only be done in the presence of an attorney. The lawyer can take cognizance of the criminal record beforehand, in order to properly inform and advise his client. It is also important that he explains the consequences of admitting guilt. This is done in a confidential consultation between lawyer and client. The lawyer will also be present during negotiations with the prosecutor and the final signing of any agreement.
The prosecutor will propose a sentence less than the one he would seek in the correctional court. Any victims will not be included in the negotiations. In practice, the public prosecutor will often request that compensation to victims be settled amicably in advance, as a condition for entering into the VES procedure. To the extent that there is an agreement on the fines, forfeiture and/or court costs, the prosecutor may request, as part of the agreement, that these amounts already be deposited into the attorney's third-party account or a government account. The funds will obviously not be transferred until the judge subsequently ratifies the VES agreement.
The negotiations are confidential, and if no agreement is reached, the parties cannot use the information from these negotiations in the proceedings. For example, if the defendant is willing to admit guilt but finds the punishment proposed by the prosecution too severe, he can still choose to take the case to the correctional court. There he can still seek acquittal. It is then forbidden for the public prosecutor to use any confidential information provided or even a confession during the VES negotiations at the hearing or in the criminal case file. Therefore, the information obtained may not be used in any other proceedings (e.g., disciplinary proceedings, administrative proceedings).
If an agreement is reached, it will be recorded in an official document to be signed by all parties. It is then submitted to the correctional court in open court, where all parties can still be heard briefly. The judge must only verify that the agreement was validly made, the legal qualification of the facts is correct, the agreed penalty is legal and proportional, as well as decide on any civil (damages) damages that still need to be imposed.
Opinion
It cannot be stressed enough how important it is for a defendant to be assisted by a specialized lawyer in such proceedings, as the law also explicitly requires. After all, they are asked to plead guilty in writing and waive any defense, in exchange for sentence reduction. Our Bannister Criminal Lawyers have since assisted a client in several cases during (successful) VES proceedings. If you receive a call for such proceedings or you are involved in a criminal investigation in which you would like to initiate such proceedings, you can always contact us.
