Corporate criminal law
Your company suffered a loss through fraud and the Belgian authorities are investigating the facts. A civil party claim brings your company into the criminal case: you request access to the file, you ask for further investigative measures, and you claim your loss before the same judge. This page sets out what the status gives you and when to take it.
What is the difference between an injured person and a civil party?
In Belgium a company that suffers loss through an offence has two possible positions: the injured person and the civil party. Article 5bis of the preliminary title of the Code of Criminal Procedure governs the declaration of injured person. Your company makes that declaration in person or through its lawyer. It goes to the secretariat of the public prosecutor, to the police secretariat, or to the police officer who draws up the report. A registered letter and electronic filing are also accepted.
The declaration states the identity, the offence, the nature of the loss and the personal interest. Your company may have documents added to the file. It is told of a decision to drop the case and of the reason for it. It is also told of the opening of a judicial investigation and of the hearing date. The declaration is free of charge.
The civil party goes further. Article 21bis, § 1, second paragraph, of the Code of Criminal Procedure lists both positions among the directly interested parties. Both the civil party and the injured person may therefore request access to the criminal file. The difference lies in what comes next.
Only the civil party may ask the investigating judge for further investigative measures under article 61quinquies. Only the civil party may bring an investigation that has run for more than a year before the indictments chamber (article 136, second paragraph). And only the civil party holds the broad right of appeal against the orders of the council chamber (article 135, § 1).
How does a civil party claim before the investigating judge work?
Article 63 of the Code of Criminal Procedure covers a party that claims to have suffered loss from an offence. That party may lodge a complaint with the competent investigating judge and become a civil party. That complaint sets the prosecution in motion itself, even where the public prosecutor has dropped the case. For a company whose own fraud investigation leads nowhere with the prosecutor, this is the route that opens a judicial investigation.
Article 66 requires an express declaration or written submissions claiming damages. The declaration can be withdrawn within twenty-four hours. Article 68 requires an address for service in Belgium.
Article 67 allows the step at any stage of the proceedings, until the close of the debates. Your company can therefore still join the case before the criminal court once the matter is heard on the merits. Whoever becomes a civil party may, on simple request, be heard at least once by the investigating judge.
What can a civil party do while the investigation runs?
The civil party reads the file and steers the investigation. During the preliminary inquiry it requests access from the public prosecutor, who decides within four months. During the judicial investigation the request goes to the investigating judge. That judge decides no later than one month after the request is entered in the register.
If the investigating judge refuses access, an appeal lies to the indictments chamber within eight days of the notification. That chamber decides without a hearing within fifteen days.
A request for investigative measures runs through article 61quinquies. The written request must describe the measure precisely, failing which it is inadmissible. The investigating judge decides within one month of the entry in the register, on pain of nullity of the order.
If the judicial investigation is not closed after a year, the civil party may bring the case before the indictments chamber. It does so by a reasoned written request. A fresh request with the same object is possible only after six months. At the committal stage the file lies at the registry at least fifteen days before the hearing. Your company may take a free copy by its own means. Our assistance before the criminal court then carries your civil interests forward.
How does your company obtain compensation?
Article 4 of the preliminary title leaves the choice: your company claims its loss before the court hearing the prosecution, or separately before the civil court. Before the civil court the claim is stayed until the prosecution has been finally decided. Since the Act of 8 June 2017 the stay applies only in so far as there is a risk of contradiction between the two decisions.
If the case is not ready for judgment on the civil interests, the court reserves those interests of its own motion. After the ruling on the prosecution, a party that suffered loss lodges a request at the registry. That request is free of charge, and the same court then decides on the civil interests. The request counts as a civil party claim.
Where the public prosecutor proposes a criminal settlement, the loss caused to another party must first be fully compensated. By way of exception, a written acknowledgement of civil liability suffices, with proof of the compensation and settlement of the undisputed part of the loss. Once the offender pays the sum of money, that payment counts before the civil court as an irrebuttable presumption of fault. Your company still proves the loss and the causal link, but no longer the fault.
Check the limitation period as well. Article 26 of the preliminary title subjects a civil claim arising from an offence to the limitation rules of the Civil Code. One correction applies: it cannot become time-barred before the prosecution does. A company that discovers the deception late therefore checks both periods. Our page on damage recovery describes how the money itself is recovered, and fraud rectification describes the repair inside the company.
Frequently asked questions
Does a declaration of injured person give the same rights?
No. Both positions give access to the criminal file. Article 21bis, § 1, second paragraph, of the Code of Criminal Procedure lists the injured person and the civil party as directly interested parties. Only the civil party may ask the investigating judge for further investigative measures. Only the civil party may bring an investigation that has run for more than a year before the indictments chamber. And only the civil party may appeal against the orders of the council chamber.
Until when can your company become a civil party?
Until the close of the debates, at any stage of the proceedings. Article 67 of the Code of Criminal Procedure says so in as many words. Your company can join the case before the investigating judge during the judicial investigation. It can still do so before the trial court, once the case is heard on the merits. Article 66 allows the declaration to be withdrawn within twenty-four hours.
Does a complaint to the investigating judge open an investigation?
Yes. Article 63 of the Code of Criminal Procedure covers a person who claims to have suffered loss from an offence. That person may lodge a complaint with the competent investigating judge and become a civil party. That complaint sets the prosecution in motion, even after the prosecutor has dropped the case. Whoever becomes a civil party may, on simple request, be heard at least once. Article 68 requires an address for service in Belgium.
Can you claim your loss before the civil court instead?
Yes. Article 4 of the preliminary title of the Code of Criminal Procedure leaves the choice between the criminal court and the civil court. Before the civil court, your claim is stayed until the prosecution has been finally decided. The stay applies in so far as there is a risk of contradiction between the two decisions. A civil claim arising from an offence cannot become time-barred before the prosecution does.