The cooperating witness became widely known in Belgium through ‘Operation Clean Hands’, which dropped a bombshell on Belgian football in October 2018. Numerous clubs, players and agents were suspected of involvement in money laundering offences and private bribery. One of the key figures in the investigation, a well-known football agent, was willing to make statements in exchange for a sentence reduction, which would rapidly accelerate the investigation. In other words, he wished to make use of the cooperating witness scheme, a relatively new concept in Belgian criminal procedural law.
Given the recent entry into force of this legislation, a brief explanation is in order.
The essential elements of the cooperating witness scheme are therefore briefly explained below.
Ratio Legis
Following the attacks of 22 March 2016 in Brussels, the legislator concluded that traditional investigation and prosecution methods were proving insufficient in the fight against serious and organised crime. Following the example of neighbouring countries such as the Netherlands, Germany and France, it was decided to introduce a general statutory scheme for cooperating witnesses. This scheme aimed to increase the efficiency of investigations.
Sentence reduction mechanisms are not new in Belgian criminal law. Various offence descriptions provide for a system of statutory excuses exempting from or reducing punishment. Article 6 of the Drug Law, under which ‘informants’ can receive a sentence reduction, is the best-known example of this.
However, a comprehensive statutory framework was lacking.
The law of 22 July 218, which entered into force on 17 August 218, introduced a series of articles shaping the cooperating witness scheme.
Definition
A cooperating witness is defined in Article 216/1 of the Code of Criminal Procedure (Sv.) as a person who makes substantial, revealing, sincere and complete statements regarding the involvement of others and, where applicable, their own involvement in the offences referred to in Article 90ter, §§2 to 4 of the Code of Criminal Procedure (Sv.), and who receives commitments from the Public Prosecutor’s Office in exchange.
Conditions
The cooperating witness must disclose important and reliable information in their statements. It must also concern information not yet known to the Public Prosecutor’s Office. These statements only serve as corroborating evidence. In order to proceed to a conviction, other means of evidence will have to be produced confirming the statements of the cooperating witness. However, the strength of this legislation is that the statement of the cooperating witness is merely an initial step leading to the discovery of additional evidence.
The agreement between the cooperating witness and the Public Prosecutor’s Office is recorded in a written memorandum. This sets out, among other things, the facts about which the cooperating witness will make statements. The promised commitments of the Public Prosecutor’s Office are also recorded herein. Both the cooperating witness and the Crown Prosecutor sign the memorandum. It should be noted that the memorandum forms the agreement on the basis of which the cooperating witness and the Public Prosecutor’s Office will cooperate. The statements of the cooperating witness are therefore not included in it.
The decision to apply the cooperating witness scheme in a specific case rests with the Public Prosecutor’s Office, which determines whether prosecution is desirable on the basis of the expediency principle. In doing so, it must take into account the subsidiarity principle. Only when traditional, less far-reaching investigation methods prove insufficient can the Public Prosecutor’s Office use the cooperating witness scheme as a last resort. Furthermore, the Public Prosecutor’s Office ought to investigate whether the cooperating witness scheme can lead to useful information, given the facts at hand.
Consequences
In exchange for the information obtained, the Public Prosecutor’s Office can make commitments to the cooperating witness in three areas. Firstly, in the area of criminal proceedings, secondly in the area of sentence execution and finally in the area of the detention phase.
The Public Prosecutor’s Office carries out a proportionality test when determining the commitments. The benefit granted must be measured against the offence committed by the cooperating witness and the offence about which they have made statements. In this way, no benefits will be granted to cooperating witnesses who commit a serious offence, but only make statements about minor offences.
The cooperating witness remains civilly liable for the offence they have committed. Indeed, signing the memorandum creates an irrefutable presumption of fault on the part of the cooperating witness. Victims of an offence can thus continue to recover their damages in full from the perpetrator of the offence.
Our services
The fraud department of Everest has extensive experience with (corporate) criminal law and assists both perpetrators and victims of fraud. We are also active in ‘Operation Clean Hands’ as counsel for the Pro League (civil party). We are naturally familiar with the new legislation on cooperating witnesses, and would be happy to discuss the possibilities in your specific case with you.