Article 216bis of the Code of Criminal Procedure provides a framework for the criminal settlement, a method to resolve criminal cases without the intervention of a judge. While the benefits for the Public Prosecutor’s Office and the suspect are often highlighted, it is also important to consider how the criminal settlement works from the perspective of the civil party, in other words, the victim of the offence.
In this article, we discuss the implications of the criminal settlement for the victim and the most recent amendments to Article 216bis of the CCP.
What is a criminal settlement?
A criminal settlement allows the suspect or the accused to prevent criminal prosecution by complying with certain conditions, such as paying a sum of money. The criminal settlement is proposed by the Public Prosecutor, as long as no final judgment or ruling has been rendered.
This process can be efficient and reduce the burden on the judiciary, but it raises questions about the position and interests of the victim/civil party.
The position of the civil party
Victims in criminal cases have specific interests that can come under pressure during a criminal settlement:
Compensation:
Victims want the damage they have suffered to be fully compensated. Article 216bis, §4 of the CCP stipulates in this regard that a criminal settlement can only be proposed if:
“Any damage caused to another person must be fully compensated before the settlement can be proposed. However, the settlement may also be proposed on condition that the perpetrator has acknowledged his civil liability for the act causing the damage in writing and that he has provided proof of the compensation of the undisputed part of the damage and its settlement. In any case, the victim can assert his rights before the competent civil court. In that case, the payment of the sum of money by the perpetrator acts as an irrefutable presumption of fault.”
This means that a criminal settlement can only be concluded if (i) the damage has been fully compensated or (ii) the perpetrator has acknowledged his civil liability and paid the undisputed part of the damage. In the latter case, the victim can apply to the civil court for full compensation for his damage. The civil party, however, does not have a veto right as the tax and social administration do.
Recognition and justice:
For many victims, recognition of the offence and a sense of justice are important. A criminal settlement can sometimes be perceived as unsatisfactory because the suspect or accused is not publicly held accountable.
Information and involvement:
Victims often want to be kept informed of the progress of their case and be involved in decisions. During a criminal settlement, the victim’s role may fade into the background, which can sometimes make them feel unheard.
Article 216bis of the CCP, however, attempts to involve victims in the following ways:
- The Prosecutor informs the victim of his intention to reach a criminal settlement and offers access to the criminal file;
- Both the person concerned and the victim are summoned by the Prosecutor to be informed about the facts to which the criminal settlement relates;
- The Prosecutor sets a time limit within which the victim and the person concerned can reach a settlement for damages;
- Finally, the Prosecutor checks whether or not the victim has been compensated.
Although the role of the victim remains limited, a criminal settlement often offers benefits, such as faster and more efficient compensation without waiting for the lengthy duration of a criminal trial. This provides more certainty for the victim.
Recent legislative amendments
On 2 May 2024, the Act of 14 April 2024 containing various amendments to the Code of Criminal Procedure II came into force.
This act added two important points to Article 216bis of the CCP:
- Director’s disqualification: the Public Prosecutor’s Office can, in addition to imposing a sum of money, also impose a director’s disqualification to exclude someone from certain offices, professions, or activities.
- Publication: criminal settlements are henceforth pronounced in a public hearing to promote transparency.
These amendments indirectly increase accountability and the sense of justice for the victim. Public disclosure ensures public recognition, and the director’s disqualification contributes to justice.
If you are a victim of an offence or if you would like more information, please contact us via the contact form on our website.