Introduction

Looking over Belgium’s criminal procedure, one might be surprised to note that its main body of rules is still the “Code d’instruction criminelle” (“C.I.Cr./Wetboek van strafvordering” ) of 1808 , dating from Belgium’s occupation by France between 1795 and 1814. This occupation left many marks on Belgium’s history and the imperial legislation was no exception, having deeply permeated the Belgian legal culture . As an historic synthesis between the justice of the Ancien Régime and of the French Revolution , the Code d’instruction criminelle was therefore used as the main infrastructure upon which further historic reforms of Belgium’s criminal procedure could be implemented.

As a consequence, an interesting way of portraying Belgium’s criminal procedure history over nearly two centuries could be to analyze how its French heritage has been addressed over time. Accordingly, this paper aims at emphasizing this evolution through a study of the reform initiatives regarding the most symbolic aspects inherited from the French criminal procedure: the Code d’instruction criminelle as a national body of rules, the pretrial investigation focused on the juge d’instruction’s person and the emblematic popular justice of the cour d’assises. The main issues addressed by these reform initiatives can be summarized as the replacement or the maintaining of the French Code, the improvement of the instruction according to its Napoleonic main features or its transformation into another type of pretrial investigation as well as the limitation or even the abolition of popular justice. For the sake of completeness, minor themes such as pretrial detention, police regulations, accelerated procedures and linguistic discrimination will also be addressed as far as possible.

To do so, this paper will essentially rely upon sources such as enacted laws, bills, legislative drafts and law journals (especially the Journal des Tribunaux and the Revue de Droit Pénal et de Criminologie). Since reform initiatives took different forms and addressed different procedural matters over time, the content of these various sources will be analyzed, contextualized and linked in an historical perspective.

Accordingly, this paper will be structured in six sections representing six historical periods from 1814 to 2020. Beginning with the period of the United Kingdom of the Netherlands (1814-1830), rich in lessons concerning Belgium’s attachment to the Code of 1808 and to popular justice , and ending with the 21^st century period (1998-2020), interesting regarding the questioning of this attachment, the paper will treat each of the covered periods as a particular moment in the history of Belgium’s criminal procedure. Furthermore, when appropriate, the analysis of these periods will be structured in subsections. These subdivisions will either be based on the content of the reform initiatives, especially regarding pretrial and trial stages , or on their chronological arrangement when specific historical events deeply influenced these initiatives within the same period. As for the basic material of the reforms, the content of the Code d’instruction criminelle will be divided and explained in a functional way as an introduction to Belgian reforms .

I. Reforming in regard to France and the revolutionary heritage: criminal procedure under the United Kingdom of the Netherlands (1814-1830)

As a consequence of Napoleon’s defeat against the sixth Coalition, the Southern (Belgian) provinces were first subjugated to the Northern Netherlands provinces in 1814 and then united with them by the Congress of Vienna in 1815. Even if the future King William of Orange maintained the Code d’instruction criminelle on a provisional basis, he decreed the removal of the military judges from the Napoleonic special courts on August 31, 1814 , and especially the abolition of both publicity of criminal proceedings and trial by jury on November 6, 1814 . Another decree of September 9, 1814, introduced the use of mitigating circumstances in order to reduce the severity of criminal sentences . Afterwards, debates on criminal justice reforms were essentially focused on a national codification and the fate of the jury as a product of the French Revolution .

I.1. The codification process between secrecy and publicity

First of all, the Constitution of the kingdom required new codes in order to provide a set of laws better adapted to the habits and customs of its citizens . Drafts of the new codes were prepared and submitted early 1815 by a legislative commission appointed by the king in 1814 and composed only of Northern (Dutch) members. As for the Code of criminal procedure, its first draft was a clear continuation of the king’s policy, characterized by an anti-French feeling and the will to depart from the revolutionary legacy, as it confirmed the suppression of both jury and public trials . However, the suppression of the latter was strongly criticized by the Southern members of the commission in charge of reviewing the draft, since they perceived it as a return to the secret procedure of the Ancien Régime . As a consequence of their advocacy in favor of the public and oral procedure, which they had applied since the French occupation in 1795, the draft was eventually withdrawn. Years went by before another draft eventually made it to the Second Chamber of the Dutch Parliament on October 23, 1828. This new attempt of a national codification was imbued with a growing admiration for the logic and clarity of the French legislation in the Northern Provinces and led accordingly to a reformative approach based on the Code d’instruction criminelle. One of its key features was precisely a partial opening to the publicity of criminal proceedings which was later widened by the Parliament .

Nonetheless, even if the 1828 draft could please the Southerners on the publicity issue, the drafters’ choice not to restore jury trial in the most serious matters contributed to irritate the Southern opposition to the Orangist regime, since jury trial had gradually become a key political claim in the Southern provinces.

I.2. A divided kingdom: popular justice at stake

Deeply entwined with the freedom of the press, the participation of laymen in the administration of justice fully became a political issue around 1819 when a Flemish merchant, Ferdinand Van der Straeten, was put in pretrial detention twice and was convicted by professional judges for a book in which he criticized the kingdom’s economic policy while depicting the Dutch regime as despotic . Adding to the fact that Van der Straeten literally died because of the expression of his ideas, since he did not survive his second detention, the injustice felt by the Southerners was aggravated by the fact that his lawyers were prosecuted and temporarily suspended from the bar for defending him .

The growing discontent in the Southern provinces became fiercer during the 1820’s, especially when the two main southern political wings, Catholics and Liberals, formed the so called « Monstrous Alliance » in 1828 in order to gain weight in their opposition to the Dutch regime. Trial by jury and the freedom of the press had both a very special status in their political program, since all their other claims would remain unheeded if they could not share them with the public opinion, on the one hand, and especially if they could be convicted for doing so by a professional judge, dependent on the criticized government, and not by the public opinion itself as the « true interpreter of the feelings and opinions of the country », on the other hand . Accordingly, since the heart of the southern opposition, formed by the intellectual middle class and especially lawyers, used influential political journals, newspapers and petitions to the Parliament, several leading journalists were convicted by professional judges during the late 1820’s, including prominent figures of the future Belgian revolution such as Louis de Potter .

More fundamentally, jury trial debates derived from a deep controversy over the ideal administration of justice in a constitutional monarchy. On the Southern provinces’ side, influenced by its French revolutionary heritage, there was a strong belief that the jury could be implemented “ex nihilo” and develop itself harmoniously in the country’s institutional framework, since popular justice for criminal matters and also press and political offences was “perfectly compatible with its long-standing traditions of rights and liberties” . On the Northern provinces’ side, despite a briefer French occupation and some support for the jury restoration, the jury was perceived as a “fruit du terroir” that could only grow if it was part of the customs and habits of a nation. On the contrary, in the case of the Netherlands’ context, the justice administration did not experience similar absolutism and judicial arbitrary excesses as in France. Professional judges were then perceived as well connected to society and much more trustworthy than laymen, thanks to their experience, knowledge and rational approach. Hence, jury trial was conceived as a “foreign body” unfit for implementation in the Dutch judicial system .

In time, the question arose in Parliament between 1828 and 1829 due to the submission of the aforementioned draft of a new criminal procedure Code. On April 13, 1829, all forms of laymen justice, regarding both grand and petty jury , in criminal matters and press offences were rejected by a large majority. This rejection not only meant a division among the Southern representatives but also displayed the gap between both regions’ mentalities since all but one Northern representative voted against the principle of the jury . Eventually, the Code d’instruction criminelle was abrogated on May 16, 1829. Both Chambers of the Parliament finally approved the new national Code and its promulgation followed on June 5, 1830 .

I.3. The Belgian Revolution and the restoration of the French heritage

However, the growing process of protest and repression during the 1830 Summer finally led to the Belgian Revolution and the declaration of independence of the new State on October 4, 1830. Two major consequences quickly followed regarding criminal procedure.

On the one hand, Belgium’s Provisional Government repealed on January 14, 1831, the law of May 16, 1829, that abrogated the French Codes and the royal order of July 5, 1830, that set the Dutch Codes’ entry into force . The Belgian rules of criminal procedure were thus once again provided by the Napoleonic Code of 1808, which especially provided the publicity of criminal proceedings.

On the other hand, trial by jury was restored by Article 98 of the Belgian Constitution on February 7, 1831, and its procedural aspects were based for the most part on the French Code d’instruction criminelle by a National Congress decree of July 19, 1831 . Provided for political and press offences and eventually for criminal matters , trial by jury in Belgium was imbued with a political vision inherited from the French revolution. This political aspect of the judiciary, deriving from popular sovereignty, involved both a political right for the citizens to be part of the jury and a subjective right for the accused to be judged by his peers .

II. A new legislation for a new nation (1831-1879)

Despite its affinity for the French criminal procedure, the new Belgian State needed to adapt, improve or even transform its legal heritage in the matter. Thus, the first decades since the 1830 independence were dedicated to a reform process which can be categorized in two ways. On the one hand, concerning the material aspect of the reforms, both main stages of the criminal process in Belgium (pretrial and trial stages) were addressed by lawmakers. On the other hand, regarding the formal aspect of the reforms, the legislative process involved a codification attempt as well as specific laws.

II.1. Codification process and pretrial stage: towards a balanced search for the truth?

Just like the Dutch regime before, the new kingdom’s Constitution required a set of new codes to be provided to the nation . In the matter of criminal procedure especially, a reform of the pretrial stage was strongly recommended because of its excessive inquisitorial character.

Indeed, the drafters of the Code d’instruction criminelle conceived a mixed criminal trial in a conciliation of the procedural benefits of the Ancien Régime and the French Revolution . On the one hand, the trial stage corresponds to the adversarial revolutionary reforms, in which the truth is supposed to result from the debates between the prosecution, led by the “ministère public” (“openbaar ministerie”), and the defense, in front of a rather passive judge. On the other hand, the pretrial stage, focused on the preliminary investigation, was a faithful application of the inquisitorial procedure d’Ancien Régime deprived of its most radical aspects, like torture. Secret, written and unilateral, the preliminary investigation was devised around the person of the examining magistrate (“juge d’instruction/onderzoeksrechter”), and not around the public prosecutor , as an active seeker of the judicial truth. Furthermore, far from being strictly separated from each other, the trial stage depends on the pretrial stage since the inquisitorial character of the latter implies that the main sources for the trial findings would come from the juge d’instruction’s investigations. Accordingly, the original Code provides that the indictment (“acte d’accusation/akte van beschuldiging”), resulting from the double degree of jurisdiction exercised by the “chambre du conseil” (“raadkamer”) and the “chambre des mises en accusation” (“kamer van inbeschuldigingstelling”), shall be the starting point of the procedure before the jury .

However, this fundamental role of the juge d’instruction was also the biggest flaw in the Napoleonic criminal procedure. Acting as the “prosecution’s agent”, by looking for the evidence supporting the prosecution and not the judgment , his function provided no sufficient guarantee that the judicial truth ascertained from his investigations would not only be one-sided and in favor of the prosecution. Furthermore, besides the truth-seeking finality of the instruction, the means of investigation suffered few limitations from the law regarding their effects on the charged person’s liberties. In general, these two characteristics of an unbalanced procedure were caused by the proximity of the juge d’instruction to the prosecution, the lack of limitations, control and sanctions to the means of investigation and the exclusion of the defense from all the steps of the pretrial stage . More specifically, the concrete procedural aspects which needed to be addressed in Belgium were the pretrial detention abuses, and especially the incommunicado measure, as well as the lack of contradiction in the pretrial investigations .

In order to address this issue, two general types of reform were devised in regard of the original choices made by the French lawmakers in 1808. On the one hand, a “continuity pattern” can be identified in reforms aiming at improving the pretrial stage in its current form. Their main purpose is to come closer to an ideal inquisitorial procedure, objectively led by the juge d’instruction, and where the truth-seeking process would be facilitated by the confrontation of the prosecution’s and the defense’s points of view . On the other hand, other reforms can rather be categorized in a “rupture pattern” and happen to be more influenced by English institutions than by a French heritage. These reforms tend to transform the pretrial stage into an adversarial process with the removal of the hybrid figure of the juge d’instruction and with new functions allocated to its participants: secret inquiries by the police and the ministère public in order to support the prosecution, a general right of the defense to ask for complementary investigations and a judge whose main role would be to guarantee the legality of each party’s means of truth-seeking .

Nevertheless, the first reform initiatives were long awaited, especially the most fundamental ones. Despite being mentioned by the liberal Minister of Justice Joseph Lebeau in 1833, the first steps towards the revision of the Code were truly taken in 1850, right after parliamentary pressure was put on the government in the matter of pretrial detention, with the establishment of a special commission in charge of the revision . Initially composed of four high magistrates and two university professors, its rapporteur was the Liège university professor Jean Servais Guillaume Nypels (1803-1886).

As a result, the members of the commission began their work by drafting a bill reducing the most authoritarian and discretionary aspects of pretrial detention. Indeed, the original version of the Code provided that pretrial detention was mandatory for both felonies and misdemeanors and that a bail was only possible in the case of the latter, as long as the offender was no vagrant or recidivist and if he could pay a minimal amount of 500 francs. Furthermore, the incommunicado measure was completely left to the discretion of the judge . As a consequence, the bill introduced in Parliament in 1851 and enacted in 1852 stated that pretrial detention was only mandatory in the case of felonies and could be applied to misdemeanors only in serious and exceptional circumstances and with a judicial confirmation within five days. The bailing measure was also eased by removing its pecuniary mandatory character and by adapting its amount to the misdemeanor at stake. As for the incommunicado measure, it was provided with a legal framework involving a time-limit of ten days and a legal remedy in the case of its renewal . Afterwards, another law was passed in 1874 in order to provide more guarantees to the detainee . Deepening the principle of personal freedom, this law abolished the mandatory character of the pretrial detention in any case and extended the motives added in 1852 to all offences with a special focus on the interest of public security. Far from only extending the judicial confirmation within five days to felonies, it also provided a monthly judicial review of the detention. Finally, the detainee’s communication with its counsel was now the rule after his first interrogation; an incommunicado measure being only possible for an unrenewable three-days period if the investigation required it .

As for the new code of criminal procedure, the executive commission’s works were nearly completed when its first part was introduced as a bill in Parliament in 1877. Focused on jurisdiction matters and actions, which were considered as a distinct part of criminal procedure justifying a separate submission , this introductory part to the code was quickly adopted in 1878 and is still in force nowadays .

The body of the commissioners’ work, which we will refer to as the “Nypels draft”, was eventually submitted to Parliament during the year 1879 in the form of three books respectively concerning the pretrial stage, the trial stage and particular procedures . The main achievements were especially to be looked for in the pretrial matter, since Nypels considered that the main flaw of the Code d’instruction criminelle was its “utmost denial of the defense rights” during the pretrial stage . Recognizable because of its “continuity pattern” features, the draft aimed at resolving this inequity by providing an inquisitorial procedure built upon a stronger examining magistrate, acting more objectively, and new rights for the defense. Firstly, these new rights ensured more contradiction and publicity during the investigation of the juge d’instruction, allowing the defense to request forensic examinations, witness examinations and confrontation with a witness for the prosecution . After the investigation, the defense could also submit a brief and be informed of the evidence before the indictment hearing in front of the chambre du conseil and the chambre des mises en accusation . Secondly, the draft addressed the proximity between the prosecution and the examining magistrate on two grounds. On the one hand, his impartiality was legally provided with an obligation to conduct the investigation for both the prosecution and the defense. On the other hand, his independence from the prosecution was reinforced thanks to the legal recognition of his liberty not to follow the prosecution’s requests . Finally, the secrecy of the investigation was maintained and even reinforced in the interest of its objectivity. Its maintaining concerned the defense counsel who was still excluded from his client’s interrogation and also the charged individual who could suffer from a renewable ten-day incommunicado measure and was also excluded from the witness examination. However, its reinforcement also concerned the prosecution which was therefore excluded from the interrogation and the witness examination . Altogether, this objective but rather authoritarian investigation built upon the person of the juge d’instruction allowed this reform to be called a “moderate opening to the defense” .

II.2. Specific reforms and trial stage: early limitations to popular justice

In spite of the craze for popular justice during the revolutionary process occurring under the Dutch occupation, the first reforms addressing the trial stage aimed at, or had the effect of, limiting popular justice extent in criminal matters. Indeed, once the principle of popular sovereignty in the most important judicial matters had been recognized by the Constitution, the next step was to set some limits to it in order to provide an efficient justice system.

First and foremost, a brief overview of the criminal courts’ system in early Belgium seems necessary to fully understand the extent of such limits. The judiciary structure provided by the Code d’instruction criminelle involved, and still involves, two types of trial procedure depending on the offence at stake.

On the one hand, most common offences are to be tried by professional judges in the tribunal de police (politierechtbank), regarding infractions, and in the tribunal correctionnel (correctionele rechtbank), regarding misdemeanors .

On the other hand, the highest first instance criminal court (cour d’assises/hof van assisen), which has a general jurisdiction over felonies and a special jurisdiction over political and press offences , is composed of twelve jurors and three professional judges . Perceived as the “highest expression of the criminal system” and as involving “all the guarantees that can protect the justice system against its errors” , this court is also characterized by the subordination of the professional judges to the lay jurors. Indeed, the judging process is symbolically divided between the judgment over the offender’s guilt (fact), reserved for the jury, and the judgment over the sentence to be inflicted (law), reserved for the magistrates . This division is directly derived from the French revolutionary ideals, consisting of a people’s justice representing the sovereign Nation and judging only in their intimate conviction (Art. 342 original C.I.Cr). On the contrary, the role of professional judges is reduced to be a “bouche de la loi”, strictly limited to a formal deduction according to the law (Art. 357 et seq. original C.I.Cr) . On the procedural aspect, this criminal court is conceived as the most complete application of the adversarial system through its orality, publicity and contradiction . Finally, the presence of the jury and the oral procedure of the cour d’assises were historically deemed sufficient enough as guarantees, making it unnecessary to provide a proper appeal procedure . The main remedy against this court’s judgments is to be exercised before the Cour de cassation, the highest judicial authority in Belgium, and can only concern legal questions .

The first limit set to popular justice aimed at improving the efficiency of the administration of justice in general. Indeed, the heaviness as well as the financial, human and time costs of the proceedings involved in such a judicial institution are a major obstacle to a swift and proper justice. Accordingly, a useful way of relieving the cour d’assises of a part of its jurisdiction was to convert the characterization of felonies to misdemeanors by a process of “correctionnalisation” (“correctionalisering”).

The application of this limit occurred in 1838 with the enactment of an important law, primarily focused on a new organization for the jury, which provided the correctionnalisation in an incidental way in its 26^th Article . The legal mechanism consists in a unanimous recognition of mitigating circumstances by the pretrial judges, in the case of a formal judicial investigation (instruction) and that the felony at stake could be punished with a sentence normally applicable to misdemeanors . Thus, this recognition allows to refer the indicted to the lower tribunal correctionnel and its professional judges instead of the cour d’assises and its jury. Thereafter, besides a law of 1849 which instituted the same mechanism for misdemeanors to be treated as infractions , the law of October 4, 1867, confirmed this limit to popular justice and even extended the power of professional judges by excluding the jury from any appreciation over mitigating circumstances .

Concerning the ratio legis of this mechanism, its primary aim is the efficiency of the procedure in two ways. On the one hand, the deprivation of popular jurisdiction allows to avoid the jury’s commiseration with a person who does not seem to deserve a highly severe felonious punishment. On the other hand, an economy made over judicial expenses was also expressly mentioned by the lawmakers. However, it must be noted that a secondary preoccupation was related to the guarantees offered to the defense, since the process of correctionnalisation could prevent cases of pretrial detention, the application of sentences too severe in regard of a less serious offence in casu and also the damage to the reputation resulting from the highly public hearings before the cour d’assises . Nonetheless, this preoccupation would not be long-standing in regard of the future use of mitigating circumstances.

The second limit to popular justice aimed at improving the justice of the cour d’assises by changing the nature of the jury. As opposed to the former alternative between popular jury and professional judges in which the first one was favored, a new alternative arose between a popular jury and an elitist jury, either tax-based and capable , in which the latter prevailed.

It should be noted that the popular jury reintroduced by the Belgian revolutionaries, according to the Code d’instruction criminelle, was popular only in theory. Regarding its French imperial origins, the right to be a juror was essentially reserved to the best taxpayers, very educated people, members of the political bodies, and willing citizens chosen by the emperor’s officials (former Art. 381 and 386 C.I.Cr) . After the Belgian Revolution, the decree of July 19, 1831, extended the composition of the jury list in regard of the voters’ list, even if Belgium’s electoral system was based on census suffrage . However, the aforementioned law of 1838 raised the census value in the matter of the jury in a significant way; thus, reducing its popular character . Accordingly, the small number of jurors were to be chosen either on a high census basis or on an occupation basis, including members of some political bodies and of certain high-standing professions. Eventually, a law of 1869 confirmed these principles and even raised the minimum age to be a juror to 30 years .

Considered a burden rather than a right, the juror’s function was to be distinguished from the elector’s function . So, the capacity of the juror was the primary purpose of these laws which emphasized two criteria according to the census principle: the instruction and the independence of the juror . Such an independence aimed at improving the efficiency of the cour d’assises, by assuring that the fate of an accused citizen would be in the hands of the country’s most capable men and by relieving the people for whom this function would involve personal sacrifices .

As for the codification draft of 1879, no substantial changes were made concerning the composition of the jury nor its jurisdiction .

III. The pretrial stage between failures and diversity (1879-1914)

If the first decades of the young State revealed themselves to be fruitful regarding the criminal procedure reforms, the next decades, until the First World War, can be considered as a period of failures but also as a display of the most diverse opinions on the reformation patterns regarding the pretrial stage. On the one hand, the failures began with the unfulfillment of the “Nypels draft” and its legislative process, which lasted for approximately twenty years, and continued with the non-completion of every other reform initiative that occurred afterwards. On the other hand, the advent of new actors in the debates and the will for in-depth transformations of the procedure led to a great diversity among these initiatives, promoting both continuity and rupture patterns in different ways.

First of all, it must be noted that the trial stage was also criticized during this period regarding the inequities and inequalities that it involved. Firstly, the procedure before the cour d’assises was questioned from a fair trial perspective regarding the advantageous position of the prosecution and the excessive discretionary power of its presiding judge. These inequities could especially be observed in the prominence of the indictment used as an exclusive basis for the proceedings, the sometimes-biased interrogation of the accused by the presiding judge and the unbalanced use of the evidence favoring the prosecution . Nonetheless, no concrete reform emerged from these criticisms . Secondly, the composition of the jury was also questioned in the continuation of the constitutional revision of 1893, which introduced the universal male suffrage tempered by plural voting . As a consequence, progressive liberal lawyers and politicians, such as the socialists Edmond Picard and Henri La Fontaine as well as the progressive liberal Paul Janson, promoted a truly popular jury in the Senate in 1896 as well as in the Fédération des Avocats Belges in 1899 . Their goal was the “democratization” of the jury by bypassing or abolishing the census and, hence, the admittance of the working class in the jury. However, these reform attempts turned out to be unsuccessful before the War since no complete legislative initiatives were taken to enact this reform . Finally, a linguistic inequality also had to be addressed since the linguistic freedom provided by former Article 23 of the Constitution granted the discretionary power of choosing the trial language to the judges themselves. This situation led to significant cases of unfair trial in some provinces where Dutch speaking accused were prosecuted, defended and tried in French, especially before the cour d’assises of Brussels . As a result, several laws were adopted and gradually the issue was solved. The first one imposed the use of the Dutch language in criminal trials held in Flemish provinces, unless the accused asked for a procedure in French, and in the lower criminal courts in Brussels if the accused did not speak French (1873) . Afterwards, these measures were applied to the written evidence, the pretrial stage and the pleadings (1889), and were also extended to the courts of appeal of Brussels and Liège (1891) and finally to the cour d’assises of Brussels (1908) .

Concerning the pretrial stage reform, the “continuity pattern” continued to be supported after 1879 and came to be differently represented depending on the extent of the counsel’s role during the investigation. The “moderate opening to the defense” had remained the only institutional reform option for many years before the eventual abandoning of the “Nypels draft” in 1900 due to the lack of parliamentary activity on this matter . Nevertheless, in the meantime, new solutions were discussed outside of Parliament by lawyers who sought a better recognition of their role during the investigations and a strong extension of the defense rights. The Fédération des Avocats Belges especially distinguished itself in 1899 by voting a pretrial stage draft providing a “complete opening to the defense”. Inspired by a French law of 1897 which strengthened the defense by allowing the counsel to be present during the interrogation of his client , this draft aimed at making the lawyer a counter-power to the juge d’instruction by systematically proposing another interpretation of the facts . Therefore, the main reforms provided by the draft were the mandatory presence of the defense counsel at all the main steps of the investigation including the interrogation, the mandatory communication of the investigation documents, the possibility of a legal review concerning the juge d’instruction’s orders and a contradictory indictment hearing . “Continuity pattern” drafts were eventually brought again in Parliament with the introduction of a Private Member’s bill providing a complete opening of the investigation to the defense in 1901 as well as a bill providing a moderate one similar to the Nypels draft in 1902 . However, none of them were discussed before the War.

As for the “rupture pattern”, this reform type began to be publicly supported in 1871 in a book written by two lawyers and was later advocated for in another professional organization of lawyers called the Conférence du Jeune Barreau de Bruxelles. In response to the Fédération’s support to the “opened investigation”, members of the Conférence promoted a “contradictory investigation” embedded in an adversarial structure , thus abolishing the juge d’instruction’s office. One of its members’ draft from 1898 clearly shapes the characteristics of this rupture with the Napoleonic Code . The draft divides the hybrid role of the juge d’instruction between the prosecution regarding the investigative function and the new juge de l’instruction regarding the judicial function. Therefore, the prosecution can secretly conduct its investigation unless it could impair fundamental freedoms. In that case, the more serious parts of the prosecution’s investigation must be authorized by the juge de l’instruction. Furthermore, the defense is well reinforced thanks to the extended publicity of the procedure and the possibility to ask the new judge for inquiries. The logic of this system is eventually provided by the separation of functions between the juge de l’instruction in charge of reviewing the legality of the investigation and the pretrial courts in charge of reviewing the investigated facts regarding the indictment .

Such a rupture with the Code d’instruction criminelle came to be supported in a different way by the government itself just before the War. An executive commission, composed among others of the Brussels university professor Adolphe Prins and the magistrate Jean Servais as its rapporteur, drafted a reform similar to the Conférence’s draft regarding the adversarial features but with a quite different approach regarding the importance of the prosecution . Introduced in Parliament in 1914 by the Minister of Justice Henry Carton de Wiart (Parti Catholique), the “Servais draft” provided a full recognition of the prosecution’s secret investigative function as a remedy for the flaws of the “opened investigation” provided by the French law of 1897, consisting of illegal police investigations appointed by the juge d’instruction . The functions of the defense and of the juge de l’instruction during the investigation were essentially the same as in the Conférence’s draft. However, the importance of the judicial counter-power to the prosecution depended on the seriousness of the case. On the one hand, in the case of felonies, press and political offences as well as pretrial detentions of more than five weeks, a public and contradictory indictment hearing had to be held before the juge de l’instruction. On the other hand, in the case of less serious offences, the prosecution could directly charge the suspect with no indictment hearing nor any legal remedy. This important difference between the two rupture drafts allowed them to be categorized as an “idealistic rupture” in the case of the Conférence’s draft and as a “pragmatic rupture” in the case of Servais’s . Nonetheless, these reforms were never debated in Parliament since the War began a few months later.

IV. The interwar period between stagnation and transformation (1918-1939)

After the War, the reform process of criminal procedure resumed thanks to the initiatives of the new Minister of Justice Emile Vandervelde (Parti Ouvrier Belge). However, the reforms until the Second World War appear to be contrasted. On the one hand, the pretrial stage underwent some improvements but no reform comparable to the drafts of the previous period would emerge during the interwar period. On the other hand, the trial stage was deeply transformed regarding the jury and the decision-making process of the cour d’assises.

IV.1. The stagnant pretrial stage: improvements without official rupture

The year 1919 revealed itself to be one of the most important years in Belgian criminal procedure regarding the number of reforms carried out. The pretrial stage underwent some significant changes concerning both the effectiveness of the procedure and its guarantees for the defense and the victim. Firstly, with regard to the effectiveness, the law of April 7, 1919 , created a proper judicial police (“police judiciaire/gerechtelijke politie”) in charge of conducting judicial investigations under the authority of the public prosecutor. This new police force was a long awaited solution regarding the inefficiency of the municipal police and the gendarmerie due to their own functions and limited territorial jurisdiction, on the one hand , and regarding the specific context of the War which resulted in an increased criminality to be investigated and prosecuted, on the other hand . Secondly, with regard to guarantees, the law of October 25, 1919, improved the impartiality of the chambre du conseil thanks to the removal of the juge d’instruction from its seat, reducing it to one judge instead of three as provided by former Article 127 of the C.I.Cr. Furthermore, this law provided a contradictory indictment hearing and a better publicity before this court in favor of the defense . It is interesting to note that unlike these improvements brought to the chambre du conseil in order to make it a proper counter-power to the juge d’instruction’s investigation, the French lawmakers abolished this pretrial court in 1856; thus, granting more power to the examining magistrate as the first and potentially sole judge of the facts of his own investigation and the legality of the pretrial detention .

Afterwards, no significant reform initiatives occurred until the end of the 1930’s. However, as the years went by, the criminal procedure tended to become more customary than legal due to the inappropriate character of the old-fashioned Code d’instruction criminelle, leading to illegal and unofficial investigation practices . Indeed, the investigation had not been improved and was still conceived around the single person of the juge d’instruction by a Code adopted in the early 19^th century for a mainly rural society with an embryonic and local police force . This investigation was thus unsuited regarding the importance of urban crime, new technologies and potential offenders’ mobility across jurisdictions. Thus, unofficial investigations, unhampered by the gaps or the old limitations of the Napoleonic Code, were a pragmatic solution to improve the effectiveness of criminal justice.

As for the general reform of the investigation, despite an unsuccessful review of the “Servais draft” in 1924 , three private initiatives led to the abandonment of the “rupture pattern” between 1936 and 1939 . Firstly, both “opened investigation” and “contradictory investigation” drafts were discussed among the members of the Union belge de droit pénal between 1936 and 1937 . They eventually ruled out the suppression of the examining magistrate and favored a moderate opening of the investigation to the defense “taking into account the needs of social defense” . Secondly, the annual assembly of the Fédération des Avocats Belges in 1938 gave the opportunity to its members to reject the “rupture pattern” by fear of autonomous police investigations and to unanimously favor a complete opening of the investigation to the defense . Finally, another think tank called Centre d’études pour la réforme de l’État (C.E.R.E.) addressed the same issue and stood for a greater opening to the defense than in the “Nypels draft” , especially thanks to the presence of the counsel during the interrogation of his client, but still moderate due to the absence of legal remedy for the defense if its inquiry requests were to be dismissed by the juge d’instruction .

Nonetheless, these drafts were never introduced in Parliament before the Second World War. Thus, a clear contradiction can be noticed between the official forced continuity of the Napoleonic investigation, due to the inability to reform it, and the unofficial rupture caused by the customary police investigations led on behalf of the prosecution.

IV.2. The transformed trial stage: towards a truly popular jury with more responsibilities

Another reform enacted during the year 1919 deeply changed the decision-making process within the cour d’assises by involving the jury in the judgment over the sentence through an absolute majority vote including the twelve jurors and the three professional judges . This partial infringement to the symbolic division between fact and law was referred to as an attenuated lay judges system (“échevinage atténué”) and aimed at empowering the jury regarding the consequences of its verdict on the accused’s guilt. Such a responsibility was needed due to the practice of jurors who acquitted guilty offenders because of the severity of the sentence on which they had no influence . Even if one might say that this law formally extended the jurisdiction of the jury , it is difficult to say in essence whether it reinforced or diminished the principle of popular justice. Indeed, even if the jury was henceforth empowered regarding the whole judgment and represented an overwhelming majority of the court concerning the sentencing vote, on the one hand, the involvement of experienced professional judges guiding the jurors in the sentencing vote could potentially be seen as a subjection of the latter, on the other hand.

Nonetheless, popular justice was symbolically reinforced through another reform occurring after the First World War and its consequences on the Belgian electoral system. Since the universal male suffrage without plural voting had been enacted in 1919 , the former initiatives to democratize the jury were revived by Belgium’s first socialist Minister of Justice. Through a bill introduced in Parliament on September 18, 1919, Emile Vandervelde intended to align jury legislation with electoral legislation by suppressing the census condition and allowing any literate elector to be part of the jury . Even if the legislative process lasted for a decade, the bill eventually became the law of December 21, 1930 and led to two consequences regarding equality among Belgian citizens. Firstly, the jury could therefore be composed of members of the working class thanks to the abolition of the tax-based criterion . Secondly, even if a majority of Belgian women could not be jurors due to their exclusion of the national elections , the law was neutral enough to not necessitate any further reform if women’s right to vote were to be recognized. Since Belgium’s electoral system became a truly universal suffrage in 1948 , women could therefore enter the jury .

V. The calm before the storm (1945-1998)

After the Second World War, a period of calm characterized the criminal procedure reform process, marked by new codification failures and a discrete continuation of limitations brought to popular justice. However, between the 1980’s and the 1990’s, police practices, a series of criminal attacks on the population and the police as well as a famous criminal case would soon bring criminal procedure ineffectiveness to light and show the urgent need for a major reform.

V.1. The calm: codification failures and a slowly vanishing popular justice (1945-1970’s)

The first decades of the post-war period were once again dedicated to a new criminal procedure codification with no concrete results. Firstly, an executive commission was appointed by the Minister of Justice Albert Lilar (Parti Libéral) in 1946 with the high-ranking magistrate and Brussels university professor Léon Cornil acting as its president . As a well-known critic of customary police investigations validated by case law , Cornil was a fervent supporter of the “rupture pattern” by praising the “Servais draft” and contemporary reform initiatives in France which tended to grant the investigation to the prosecution and to change the juge d’instruction into a juge de l’instruction . According to him, this reform was justified by the need of an effective criminal justice able to deal with the increased criminality caused by the repercussions of the War . Nonetheless, the commission abandoned its general reform projects and concentrated itself on specific reforms of more immediate interest, such as introducing probation in Belgian criminal law .

Later on, another executive commission was appointed in 1962 by the Minister of Justice Piet Vermeylen (Parti Socialiste Belge) with another high-ranking magistrate and Brussels university professor, Hermann Bekaert, acting as royal commissioner . His works brought to light a new pattern of reform by dividing the pretrial stage into two types of investigations. On the one hand, the commissioner noted that the prosecution’s investigation had been generalized to the point of representing nine out of ten criminal investigations. As a consequence, Bekaert stood for the legalization of these secret and unilateral investigations with a special attention given to their limits regarding other interests at stake. On the other hand, the commissioner was also in favor of maintaining the traditional investigation led by the juge d’instruction, as long as improvements were to be provided regarding defense rights, publicity and legal remedies . Eventually, despite its submission to the Minister of Justice Herman Vanderpoorten (Partij voor Vrijheid en Vooruitgang) in 1976, Bekaert’s works were not pursued in Parliament .

As for the trial stage, the procedure before the cour d’assises was improved in 1949 thanks to the prohibition of the prosecution’s presence during jury deliberations . However, despite the Belgian fondness for popular justice still noticeable in 1955 and its improvements, reforms and judicial practice were progressively leading to a clear deprivation of the cour d’assises’s jurisdiction. Initiated in 1919 , this deprivation movement took the form of a reinforcement of the correctionnalisation introduced in 1838. Initially provided for less important felonies depending on the maximal sentence applicable, the correctionnalisation progressively became more and more applicable by providing exceptions to this maximum regarding some offences which needed to be addressed quickly and by generally raising the maximal sentence from fifteen years of imprisonment to twenty years in 1977 . According to some, this use of mitigating circumstances had evolved to become a way to slowly abolish the cour d’assises without offending public opinion . As a consequence, eighteen common felonies could only be tried before the cour d’assises under the law of 1977 and most felonies subject to correctionnalisation were tried in casu by the tribunaux correctionnels .

V.2. The storm: crisis, efficiency and compromise (1970’s-1998)

The last decades of the 20^th century saw the criminal procedure, and especially the pretrial stage, enter a period of deep crisis. On the one hand, police investigations had gained an unprecedented autonomy without legal approval since the 1970’s and had developed new means of investigation, especially under American influence against drug-related organized crime . Furthermore, the various police forces of the kingdom were involved in a competition for case solving (“guerre des polices”), thus leading unofficial parallel investigations, withholding evidence and compromising the general effectiveness of investigations . On the other hand, a need for security as well as a loss of public confidence in police investigations and in criminal justice were caused by a series of crimes occurring between 1980 and 1996. Firstly, attacks on the gendarmerie itself in the year 1980, which could only happen with an inside help, were never solved. Secondly, organized criminals spread terror in the country and increased a need for national security. The “Cellules communistes combattantes” (Fighting Communist Cells) orchestrated terrorist attacks between 1984 and 1985, and the “Tueurs du Brabant” (Brabant killers) conducted hold-ups between 1982 and 1985, killing twenty-eight people in doing so and hurting dozens of others, and were never arrested . Finally, the shocking unveiling of the world-famous “Affaire Dutroux” in 1996, involving child abductions, pedophilic practices and assassinations, aggravated by the lack of police cooperation on the case, marked a point of no return for Belgian justice.

At first, particular reforms aimed at addressing specific issues related to the slowness of criminal justice and to the pre-1996 wave of crimes. Firstly, the correctionnalisation mechanism was extended in 1985 to felonies connected to the Fighting Communist Cells and the Brabant killers such as hostage taking, armed robberies and property damage in order to accelerate their judicial processing . Secondly, pretrial detention was reformed in 1990 in order to make it more exceptional, to improve the defense rights notably by setting a time limit of twenty-four hours to issue an arrest warrant in case of effective deprivation of liberty and, as a consequence, to address prison overcrowding which was a flagrant indication of a slow justice in that matter . Thirdly, the acceleration of justice administration was the main purpose of the laws of 1994, empowering the prosecution to directly indict traffic offenders and urban offenders and creating criminal mediation . For the same purpose, the criminal settlement possibility was extended in 1984 to more serious misdemeanors punishable by five years of imprisonment . Fourthly, the legalization of wiretapping in 1994 in judicial investigations aimed at fighting organized crime and terrorism . Finally, the need for a more efficient police function and a better cooperation between the police forces provoked the enactment of a law of 1992. However, since the police war was pointed out in the mismanagement of the Dutroux case, another law of 1998 suppressed the former police forces and created a single integrated police service structured on a federal and a local level .

Furthermore, the dramatic chain of criminal events also led to the first general reform of pretrial investigations in Belgium’s history. Resulting from the works of an executive commission appointed in 1991 and presided by the lawyer and Liège university professor Michel Franchimont, as an answer to the Brabant killings, this reform was introduced as a bill in Parliament in 1996 due to the pressure resulting from the Dutroux case and was quickly enacted as the “Franchimont law” of March 12, 1998 . Pursuing Bekaert’s work, this law brought to light a new reform pattern characterized by a compromise between continuity and rupture patterns and by a division of the pretrial stage into two phases: the judicial investigation (“instruction/gerechtelijk onderzoek”) and the preliminary investigation (“information/opsporingsonderzoek”) . On the one hand, the “continuity pattern” elements can be found in the traditional instruction, improved thanks to extended rights for the defense and the victim, including contradictory additional inquiries and investigation file disclosure requests, and to a more independent and impartial examining magistrate. The pretrial courts’ review was another important improvement of the judicial investigation, despite its procedural slowdowns and complications. Next to its factual review regarding the indictment, the chambre du conseil could therefore exercise a legal review of the instruction and annul any illegal inquiry. The chambre des mises en accusation became an appeal court regarding the latter’s orders, next to its original indictment role improved with a second-degree legal review regarding felonies and to a new general jurisdiction to control judicial investigations in progress. Finally, the Cour de cassation could also exercise a legal review of the latter’s judgments. On the other hand, the influence of the “rupture pattern” can be found in the legalized investigations of the prosecution (information), conducted by the public prosecutor who became responsible for the opportunity to prosecute. These secret and unilateral investigations were limited to inquiries without any constraint or impairment of fundamental freedoms, except for some inquiries which could be authorized by the juge d’instruction (mini-instruction). Furthermore, the prosecution had no obligation to conduct an objective investigation and suffered no control from the pretrial courts, as long as the offence was not formally characterized as a felony and if no serious inquiries were necessary, by being able to directly indict the offender before the lower criminal courts. In brief, this “compromise pattern” had the paradoxical effect of greatly improving the fairness of the traditional instruction regarding the most serious offences while transferring its former flaws to a new investigation applicable to the vast majority of cases in practice.

VI. An era of unprecedented reforms (1998-2020)

The year 1998 marked the beginning of an era of unprecedented reforms regarding Belgian justice . On the one hand, the years 1998 to 2015 were filled with reforms addressing both guarantees and efficiency of criminal procedure. On the other hand, the last years saw a rebirth of codification as well as an explicit attempt to step away from the greatest symbols inherited from the Napoleonic legislation.

VI.1. Weaving Harlequin’s suit: a multitude of reforms (1998-2015)

To quote Bekaert who referred to the Code d’instruction criminelle as an “Harlequin’s suit” due to the increasing number of complementary laws which changed its provisions in a scattered manner , this trend would only be amplified after 1998 with reforms affecting every aspect of the procedure.

Firstly, the scope of the information continued to be extended in the post-9/11 period . New means of investigation exercised by the police under a nearly exclusive supervision of the prosecution were provided by an important law of 2003 and improved in 2005 . These measures, especially provided for investigations related to terrorist and other criminal organizations, included police surveillance, undercover operations and informants use. It must be noted that these laws contributed to reinforce the prosecution’s investigations at the expense of the examining magistrate’s investigation who had no control over these new procedures . Furthermore, the use of illegally obtained evidence became admissible in principle following the important case law Antigoon of the Cour de cassation in 2003. The former rigorous exclusion of these evidence, tempered between the years 1990 and 2003, was finally rejected due to new forms of criminality, “the social need for an efficient repression” and European influences . Thereafter, the teachings of this case law were passed as a law and added to the Napoleonic Code in 2013, providing the principle and three general exceptions .

Secondly, the pretrial investigations and especially the information were improved by providing more rights to the defense and the victim. First and foremost, another codification attempt was introduced in Parliament in 2002 aiming at improving the contradiction and publicity of the information . However, like the “Nypels draft”, its legislative process was not completed and the bill was thus abandoned in 2007 at the end of the legislature. Then, in response to the Salduz case law of the European Court of Human Rights , Belgian lawmakers eventually provided a legal framework for the intervention of the defense lawyer at the beginning of the procedure and authorized their presence during the interrogations of their client in 2011 . Finally, the publicity of the information was addressed in 2012 by granting the defense and the victim a new right of requesting access to the current investigation file .

Thirdly, the efficiency of the trial stage was also improved due to a drastic extension of criminal settlements and accelerated procedures. On the one hand, thanks to a law of 2011 aiming at addressing the slowness of justice concerning white-collar crimes, the prosecution could henceforth propose a criminal settlement at any moment of the procedure for much more serious offences including “correctionnalized” felonies . On the other hand, next to this parallel treatment of judicial matters, a law of 2000 addressed the judgment of common urban delinquency by creating an immediate hearing procedure for simple offences involving an offender in custody . Furthermore, the deprivation of jurisdiction affecting the cour d’assises was reinforced concerning press offences as one of its most symbolic functions. Indeed, a constitutional amendment deprived the cour d’assises of jurisdiction over press offences inspired by racism or xenophobia because of the publicity that this court provided for these opinions and because of the general inefficiency of their prosecution .

Finally, guarantees and efficiency were also improved in the case of the cour d’assises. These modifications began in 2000 with a reform aiming at improving the efficiency of this court’s procedure but legalizing in the meantime the reading of an “Acte de défense” (“akte van verdediging”) in response to the indictment at the beginning of the trial . Afterwards, an important law of December 21, 2009, brought many changes to the cour d’assises, without questioning popular justice, by modernizing its procedure and ensuring to reduce its number of trials due to their expensive nature . One of its key reforms was the eventual justification of the jury’s verdict on the accused’s guilt which indirectly extended the legal review of the Cour de cassation. This important improvement was caused by Belgium’s conviction by the European Court of Human Rights in 2009 regarding the absence of justification to the jury’s verdict in the trial regarding the assassination of the former minister André Cools (Parti Socialiste) in 1991 .

VI.2. The twilight of Napoleonic symbols: towards a long-awaited new Code? (2015-2020)

The next legislature which began in 2015 marked the greatest criminal procedure upheaval in Belgium’s history. The new Minister of Justice at that time, Leuven university professor Koen Geens (Christen-Democratisch en Vlaams), intended to generally improve the efficiency of the Belgian justice system and to support a new codification in many legal fields, including criminal procedure . Accordingly, his policies tended to abolish the Napoleonic instruction and the cour d’assises as the last vestiges of Belgium’s French heritage which had gradually been erased in practice and especially since the end of the 20^th century. As a result, the draft of the new Code of criminal procedure was introduced in Parliament as a Private Member’s bill in May 2020 . Since then, the bill has not yet been properly discussed.

Concerning the pretrial stage, the draft can be categorized within the “rupture pattern” but goes beyond any previous propositions due to its authors’ explicit confidence in an independent and impartial prosecution, making it the “alpha and omega” of the pretrial investigation . Explicitly aiming at making criminal procedure more effective and abolishing the inequalities among offenders subject to the information compared to those subject to the instruction , its authors conceived a single investigation led by the prosecution in an objective manner but still tempered by requests of the defense and the victim, regarding publicity and contradictory inquiry issues, and by a judge of the investigation (“juge de l’enquête/rechter van het onderzoek”) whose role would be to arbitrate each party’s requests and to authorize the most serious inquiries. However, the prosecution is the most empowered judicial actor since indictment hearings are abolished by the draft, leaving the prosecution free to directly indict any offender regardless of the felony at stake. To temper this great power, the defense and the victim must be informed of the investigation termination and may ask for complementary inquiries, with a legal remedy provided before the judge of the investigation in case of prosecution’s refusal. Nonetheless, this public and contradictory procedure can be bypassed by the prosecution in the case of less serious offences involving short investigations (less than six months) with a secret and unilateral inquiry leading to a direct indictment by the prosecution. Conceived in this way, the intention to accelerate investigations could not be clearer .

Concerning the trial stage, lawmakers and the government explicitly attempted to abolish popular justice. On the one hand, an important law of 2016 radically extended the correctionnalisation by making it applicable to all felonies, thus allowing professional judges to try felonies likely to be sentenced to life imprisonment . Due to executive orders and judicial practice, this reform led to deprive the cour d’assises of the few offences it could still exclusively try and thus aimed at the unofficial abolition of popular justice. However, Belgium’s Constitutional Court struck down this part of the law because this unofficial abolition violated the Constitution which still enshrines popular justice . Furthermore, this law also empowered professional judges regarding the jury’s verdict on the guilt. Indeed, the strict separation between factual and legal judgments was mainly ignored by the lawmakers who allowed the three professional judges to deliberate on the guilt with the jury. It must be noted that the magistrates are not involved in the vote, except in the already provided situations of a simple majority or an obvious mistake made by the jury . Even if their participation in the deliberations cannot be formally characterized as a lay judges system , this “attenuated échevinage system” is nonetheless a clear step towards this solution considering the potential influence that professional judges may have on lay jurors and considering the government’s general perspectives on criminal procedure reform. On the other hand, going even further than a lay judges system, the draft of a new Code of criminal procedure officially abolishes popular justice in Belgium and replaces the cour d’assises with a high criminal court composed of three professional judges with a jurisdiction over felonies sentenced to more than twenty years of imprisonment and over political offenses . As for press offences, its authors justified their treatment by professional judges with the difference of context between Belgium’s early years and the current difficulty to prosecute such offenses . Thus, nearly two hundred years after the Belgian revolutionaries’ struggle to reinstate popular justice, the kingdom eventually faces the very possibility of losing it again.

Conclusion

After this long-term analysis of criminal procedure reforms in Belgium, one might say that the kingdom’s French heritage has been both reduced and respected, except for the last few years. On the one hand, the utmost majority of procedural aspects inherited from the Code d’instruction criminelle was reformed in order to provide more guarantees to the parties and to improve the efficiency of criminal procedure. To say the least, Belgium’s current criminal justice looks nearly nothing like its Napoleonic basis. On the other hand, symbols of the Napoleonic criminal procedure like the juge d’instruction, the cour d’assises and the Code d’instruction criminelle itself have not been formally abolished yet. As a result of these numerous reforms and the respect for these symbols, Belgium’s procedural institutions may seem strange in their current form: an ancient Code with a great historical aura changed in an Harlequin’s suit over time, a janusian pretrial investigation and a popular justice constitutionally valued but to which justice of professional judges is preferred in practice.

Concerning the Belgian codification, the reinstatement of the Code d’instruction criminelle of 1808 with the other Napoleonic codes was a major response to the previous Dutch regime by rejecting its new Code of criminal procedure. Afterwards, executive initiatives for a Belgian Code of criminal procedure were taken in 1850 and their result was introduced in Parliament in 1879. However, approximately twenty years later, the “Nypels draft” was eventually abandoned. By that time, partial revisions of the Code were proposed through private initiatives coming from lawyers’ professional organizations, as well as by members of Parliament and another executive commission in 1914. Without any success before the First World War, private initiatives continued to explore potential revisions between 1936 and 1939, especially in the case of the pretrial stage. After the Second World War, new executive initiatives occurred in 1946 and also between 1962 and 1976, still without concrete results. Eventually, the crisis context during the 1990’s pushed an important reform forward concerning the pretrial stage which changed many provisions of the Code d’instruction criminelle. Finally, following a failed new codification in the early 20^th century and numerous modifications brought to the Napoleonic Code, a new Code of criminal procedure was introduced in Parliament in 2020 and has not been adopted nor rejected yet; symbolically maintaining in force a Code elaborated in regard of the 18^th century society while France itself paradoxically adopted a new Code of criminal procedure in 1958.

Concerning the pretrial stage originally focused on the juge d’instruction, its authoritarian aspects and utmost denial of the defense rights led to early reforms of the pretrial detention in 1852 and 1874 and were among the main motives for a Belgian codification. As a response, two reform patterns were conceived between the second half of the 19^th century and the beginning of the 20^th century. On the one hand, reform initiatives were conceived in a “continuity pattern” with the main Napoleonic choices, either providing a more objective investigation by the examining magistrate in its moderate form or providing a complete opening of the investigation to the defense through more publicity and contradiction. On the other hand, other reform initiatives can be categorized in a “rupture pattern” with the main choices made in 1808. These reforms tend to abolish the hybrid figure of the juge d’instruction and to provide new procedural roles in a more adversarial manner: a prosecution empowered with the secret investigation, the defense and the victim able to request further investigations and publicity and a judge in charge of arbitrating the parties. Some “idealistic” version of this pattern tended to provide a strong judicial counter-power to the prosecution while more “pragmatic” reforms provided less controls on pretrial investigations for efficiency purposes. Following these patterns, which have been alternately preferred until the second half of the 20^th century, a “compromise pattern” was eventually chosen by the lawmakers in 1998 under the pressure of the Brabant killers and the Dutroux case and as a response to unofficial investigation practices. The resulting dual pretrial investigation, which provided few guarantees on the information side and too little efficiency on the instruction side, was gradually improved even though the draft Code of 2020 aims at providing the greatest rupture with the Napoleonic Code to date.

Concerning popular justice and the trial stage, trial by jury came to be one of the key political claims which led to the Belgian revolution in 1830. Accordingly, the Constitution of the kingdom provided that political and press offences as well as felonies would be tried by lay jurors. However, the next decades saw the extent of popular justice reduced through the correctionnalisation mechanism, which tempered the rather idealistic repartition of jurisdiction over felonies, and the establishment of a more elitist jury, both tax-based and capable. Thereafter, following Belgium’s steps towards a true democracy, the first half of the 20^th century was marked by the democratization of the jury, which could soon include every man and woman, as well as by an empowerment of lay jurors over the sentence. As for the second half of the 20^th century, the deprivation of jurisdiction of the cour d’assises would only be amplified in order to try less serious felonies more efficiently. Eventually, the first decades of the 21^st century saw the lay jurors’ system be transformed into an “attenuated lay judges’ system” where professional judges may not vote on the guilt but deliberate anyway with the jurors. Furthermore, an explicit intention to suppress this heritage dating from the French Revolution was expressed in an unofficial abolition through the correctionnalisation mechanism in 2016, on the one hand, and in an official abolition in 2020 through its replacement with a high court composed of professional judges, on the other hand.

To conclude, it is interesting to note that the motives leading to reform criminal procedure evolved in relation with Belgium’s historical context. Firstly, the claims for a public trial held before lay jurors that were followed by Belgium’s National Congress in 1831 were a clear response to the oppressions experienced under the Dutch regime. Secondly, considering the flaws of the Code d’instruction criminelle regarding defense rights, the reform initiatives between 1831 and 1914 primarily aimed at improving the guarantees provided by criminal procedure without interfering too much with its rather acceptable efficiency. Thirdly, while unofficial investigations led by the prosecution and the police were becoming a customary practice during the 20^th century, the reform motives progressively leaned towards the legalization of these investigations, seen as a way to officially improve the efficiency of the criminal procedure. With the same concern for efficiency, popular justice was progressively criticized because of its heaviness compared to courts composed of professional judges. Finally, following the legal compromise of 1998 which legalized the most commonly used investigation in practice without much regard to the defense and the victim, reform initiatives tended to either provide them with some guarantees or to further improve the efficiency of the information regarding the new criminal challenges of the century and the slowness of Belgian justice. The draft Code of 2020 remains in the same vein by mostly empowering the prosecution and accelerating the trial stage procedures. Hence, a paradigm shift may be observed over time, since the main reform concerns went from how to improve procedural guarantees without reducing procedural efficiency, during the 19^th century, to how to improve procedural efficiency without reducing procedural guarantees, during the 20^th and 21^st centuries.

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Notes