What is a court of
assizes ?
The
court of assizes is a court of law composed by both professional
judges and citizens, that judges the most serious and
delicate offences.
It is mainly competent in crimes, political crimes and violations of
press laws (except those inspired by racism and xenophobia).
The court of assizes is not a permanent court (it does not sit continuously).
The first president of the court of appeal sets the date the proceedings
start and declares it closed. The duration of the proceedings is not
set by law.
There is one court of assizes for each province and one for the administrative
district of Brussels-Capital. It sits in the court of first instance
of each provincial capital (i.e.: Antwerp, Arlon, Bruges, Brussels,
Ghent, Liège, Louvain, Mons, Namur, Nivelles and Tongres).
Who makes up a court of assizes ?
The court itself:
The court is composed of a president (judge from the court of appeal)
and two assessors (judges from the court of first instance where the
court of assizes sits).
The president leads the proceedings and assists the jurors in their duties.
He also has police authority, which allows him to enforce order in the
court, as well as the power to take all measures he considers useful
for discovering the truth (called discretionary
power).
The jury:
The jury is composed of 12 effective members and one or more substitute
members.
The jurors are chosen by drawing lots (read in this respect How does
one become a juror?).
They must:
- be of Belgian nationality,
- enjoy full civil and political rights,
- be between
30 and 60 years old,
- be able to read and write,
- live in the province where
the proceedings are held.
The public prosecutor’s department:
The public prosecutor’s department is represented by a member of
the “parquet général” (attorney general or
his deputy) or a member of the office of the “procureur du Roi”,
delegated by the “parquet general”.
The judges of the public prosecutor’s department ensure the application
of law and look after the general interests of society. Their role is
essential in criminal proceedings. The public prosecutor’s department
support prosecution.
The public prosecutor’s department is entitled:
- to put questions to the witnesses and the experts through the
President of the court,
- to make comments on the statements of the witnesses,
- to consult the case file and to obtain a copy of it.
Finally, it is the public prosecution department that
requires the conviction and the sentence.
The office of the court:
A clerk of the court of first instance assists the court by recording
the proceedings on paper. He takes legal recognizance of the requests,
the incidents and the formalities complied with. He also draws up the
minutes of the hearings.
The civil parties (plaintiffs claiming damages):
They are the victims or the person who claim they have been prejudiced
by the facts the defendant is accused of. They are usually the victim’s
next of kin (spouse, parents, children) if the victim has died.
The civil party may personally attend the proceedings, it may be represented
or be assisted by its counsel(s). To be entitled to speak during the
proceedings, the victim (or his next of kin) must officially claim damages.
The counsel:
The counsel must advise and represent the interests of his clients before
the law.
The presence of a counsel is not compulsory for the civil party nor for
the defendant.
The defendant is entitled to be assisted by a counsel of his choice,
and if he cannot afford to pay for one himself, he has the right to be
assisted free of charge by a counsel ex officio appointed by the court
(formerly called the PRO DEO counsel).
The witnesses:
The hearing of witnesses allows useful information to be collected and
is a medium of proof.
The experts
Experts are heard by the Court of Assizes during the proceedings in order
to give technical or scientific explanations.
The examining judge can ask for one or more expert investigations during
the investigation of the case.
How does one
become a juror ?
One cannot apply to become a juror. The members of the jury are selected
by drawing lots (see in this respect, Drawing lots). They are then called
to appear in the court of assizes on the day the proceedings start.
Selection of the jurors
Every 4 years, each municipality draws up a list of jurors. They are
drawn by lots among the voters of Belgian nationality, who are 30 to
60 years old, and who enjoy full civil and political rights.
An information sheet is sent to all these persons in order to check that
they can read and write, that they will be able to follow the proceedings
in the language they are conducted in, that they have an occupation,
whether they have a political mandate, etc, and to check if they think
some reasons might justify not sitting.
On the basis of these sheets, people who cannot read
and write, people who do not know the language of the proceedings,
political representatives,
judges, court clerks, senior civil servants, etc, are immediately excluded.
The municipalities then send the lists of jurors to the provinces, who
pass them on to the president of the court of first instance of the provincial
capital.
An additional list of people who live in the district where the court
of assizes sits is attached to this final list. This additional list
is used for selecting the substitute jurors.
Drawing by lots
At least twenty days before the start of the proceedings, the president
of the court of first instance of the provincial capital draws the jurors
by lots.
Thirty names are drawn from the final list (candidate effective jurors)
and thirty names are drawn from the list of people living in the district
where the court of assizes will sit (candidate substitute jurors).
These 60 persons are summoned by a bailiff to appear in person before
the court of assizes in order to participate in the drawing by lots of
the jury, and to sit in the jury if the case arises.
Constitution of the jury
The day the sitting starts, the president of the court of assizes has
the candidate jurors of the two above-mentioned lists called by the court
clerk one after the other.
This procedure takes place in public in the presence of the public prosecutor’s
department, the defendant and his counsel, and possibly the civil party
and its counsel.
When the president invites them to do so, the candidates of the two lists
may ask to be excused from sitting for personal, family or professional
reasons. The court decides whether the requests are justified.
From the group thus formed, the president draws by lots the effective
members who then physically introduce themselves to the defence and the
public prosecutor’s department, who may accept or reject the candidates,
without having to justify their decisions. The number of objections,
which is the same for both the defence and the public prosecutor’s
department, is set by law according to the number of substitute jurors.
The defence rejects first.
The drawing of lots comes to an end as soon as all twelve jurors and
the substitute jurors (whose number is set by the court) have been accepted.
Oath of the jurors
Each juror (effective as well as substitute) is asked by the president
to take the following oath publicly:
“
I swear and promise to examine with the most scrupulous attention the
charges laid against the defendant.
Not to betray the interests of the defendant nor those of society that
accuses him,
Not to communicate with anybody until after the declaration of the jury,
Not to listen to hatred nor to malice, nor to fear nor to affection,
To take my decision according to the charges and the means of defence,
and according to my conscience and my innermost conviction, with the
impartiality and the assurance that suit an upright and free person”.
The examination of the case can then start.
The jurors’ rights
The jurors are entitled:
- to receive a copy of the bill of indictment and, if any, of the
statement of defence,
- to put questions to the witnesses and the
defendant by asking the floor at the president,
- to take notes,
- to be paid.
Payment:
The jurors, effective as well as substitute, are entitled to a payment
of 34.55 EUR (in 2003) for each day they sit or attend the proceedings.
A juror who has been called but not selected is paid 8.52 EUR.
After the fifth day of the proceedings, private employers who continue
to pay their employees and self-employed people are entitled to compensation.
Travel costs:
For each day that he has to go to court, the juror is entitled to 0.3541
EUR per kilometre travelled. The request must be done to the president
of the court of assizes.
The jurors’ duties
While jurors have rights, they also have duties.
By taking the oath, they commit themselves:
- to judge impartially (by considering the prosecution and the
defence on an equal footing),
- to judge solely according to the information produced
at the public hearing,
- to only express their judgement in their
verdict,
- to respect the confidentiality of the deliberations.
Duty of attention
The jurors must pay attention to the proceedings. The inattention
of a juror, if evident, may lead the Court to replace him with
a substitute
juror, automatically or on the request of a party.
Duty of impartiality
The jurors must remain impartial and must not show their opinion regarding
the guilt of the defendant, nor regarding the credibility of a witness,
nor regarding the value of a piece of evidence.
Any suspicion of partiality is immediately punished by the replacement
of the imprudent juror. For example, encouraging a witness or a counsel
by a gesture or a look, taking a stand with regard to a testimony or
reacting to testimony, during the counsel’s speech or the prosecution’s
charge, may justify the replacement of the juror responsible for such
misdemeanour.
Duty of discretion
The jurors must not discuss the case with anybody who is not part of
the jury. During the proceedings, jurors must not:
- discuss the proceedings
with third parties, family, colleagues, counsels, judges, witnesses
and experts, or the defendant,
- get information from
any other place than the public hearing,
- approach the judges, counsels,
witnesses, experts and parties to the case for any reason.
The jurors must thus not make personal or collective enquiries,
meet with their colleagues at the scene of the crime or go there
without
the presence of the court and the parties, seek advice or information
from third parties.
How does a court of assizes proceed?
Proceedings in a court of assizes mainly progress as follows.
The proceedings start with the constitution of the jury, the designation
of the substitute members of the jury, and the oath of the jurors.
The public prosecutor (or his deputy) then reads out the bill of
indictment, and the defendant (or his counsel) reads out the statement
of defence,
if any.
After reading the list of witnesses called by the public prosecution
department, the civil party and the defendant, and the witnesses,
if any, are heard. All witnesses take the oath.
When the witnesses have been heard, the parties take the floor
to express their position to the jury. Then come the pleading of
the
civil party,
the prosecution’s charge, and the counsel’s speech.
The defendant or his counsel(s) speak last.
The proceedings are then closed and the president of the court
of assizes puts the questions that the members of the jury will
have
to answer.
The jury retires to deliberate. The deliberations are secret. In
principle, the jury only decides on the question of guilt. To do
so, it answers
the questions with “yes” or “no”. The answer
must in any case clearly reveal whether the defendant has committed
the crimes he is accused of.
The members of the jury judge solely according to their innermost
conviction, they do not have to justify their decision. The decision
is taken by
a majority vote. If the vote is split (equal number of votes for
and against) the defendant is given the benefit of the doubt. In
that a
case, the president pronounces the acquittal.
If the defendant is found guilty, the session resumes in order
to enable the public prosecutor and the defence to set out their
point
of view
on the sentence to be inflicted.
At the end of the joint deliberations by the judges of the court
of assizes and the jury on the sentence to inflict, the court renders
its arrest.
The sentence is thus determined.
In principle, the hearings of the court of assizes are public.
However, the Court may order the proceedings, or part of them,
to be held
in camera, for example if publicity on the proceedings endangers
public
order or
morals.
Role of the jury
The people’s jury plays an important role in the court of
assizes. The jury on its own takes the decision about the question
of guilt,
i.e. whether or not the defendant is guilty of the facts he is
accused of.
This decision is taken on the basis of a certain number of questions
put to the jury by the president of the court of assizes after
hearing the witnesses, the pleading of the parties and the prosecution’s
charge. The jury has to answer these questions by “yes” or “no”.
In addition to the questions that should contribute to clearly
determine whether the defendant has committed the facts, questions
may also
be put about aggravating circumstances (for example, premeditation
in a
homicide) or mitigating circumstances that could lead to a reduced
sentence (for example if the perpetrator was incited to commit
acts of serious
violence against persons).
If the defendant is found guilty, a sentence is set jointly by
the jury and the professional judges. This decision is taken by
full
majority of votes.
The judgement of the court of assizes is without appeal (it is
said that the decision is given by a court
of first and last resort).
An appeal
may be lodged with the Court of Cassation, but its role is solely
to verify that all the rules of law have indeed been respected
in
a case
judged. It does not decide on the facts.
Which sentences can the
Court of assizes inflict?
The Court of assizes is essentially responsible for judging crimes.
The main sentences that can be imposed for crimes are imprisonment
and detention.
Imprisonment can be for a fixed term or for life, depending on
the seriousness of the facts. Fixed-term imprisonment can be for
a period
of 5 to 10
years, 10 to 15 years, 15 to 20 years or 20 to 30 years.
Detention is reserved for political crimes and can be for life,
an extraordinary term (15 to 20 years), or an ordinary term (10
to 15
years or 5 to 10
years). In view of the restrictive nature of the definition of “political
crime”, the sentence is no longer applied in practice.
The death penalty was abolished by the Act of 10 July 1996 and
replaced by life imprisonment or life detention. |
