On 13 August 2011, the Belgian Parliament granted additional rights to suspects interrogated during a criminal investigation. With this important reform, Belgium aims to comply with European Court of Human Rights case law initiated by the “Salduz” ruling.
A basic set of rights applies to any individual subject to interrogation, be it as a suspect, victim or witness. Firstly, no person can be coerced into self-incrimination. Furthermore, the individual subject to questioning can demand that the entire interrogation is recorded in the report and is entitled to request a copy of this report. These rights have to be brought under his/her attention before the start of the interrogation. Prior to questioning, the interrogator also has to provide a short summary of the facts and events which the interrogation will touch upon.
Additional rights apply where the interrogated person could be charged with the offense at the centre of the interrogation. In this case, the new Act of 13 August 2011 explicitly acknowledges the right to remain silent. If the suspect is interrogated in relation to ‘serious’ offenses (i.e. offenses that could lead to a custodial arrest), he/she has the right to a private consultation with a lawyer prior to questioning. The first interrogation can be delayed at the suspect’s explicit request in order to allow such consultation. However, no delay can be granted if the interrogation takes place upon written invitation informing the suspect of his/her rights as well as of the facts and events he/she will be questioned on. Here, the opportunity of prior consultation is presumed.
The same rights apply to suspects taken into custody, in which case private consultation must take place within two hours after notifying the lawyer. Furthermore, the suspect has the right to have a lawyer present. The lawyer will validate the interrogation’s proper and legitimate conduct, assess whether the suspect is treated appropriately (e.g. no exertion of unlawful pressure or force) and ensure that his/her rights are respected (e.g. the right to remain silent and the right against self-incrimination).
The rights to consult a lawyer prior to questioning or to have a lawyer present during interrogation can only be waived by written statement.
Declarations obtained in violation of the right to consult a lawyer or to have a lawyer present cannot be used as sole evidence to support a conviction.
The Act of 13 August 2011 will enter into force on 1 January 2012, unless this term is reduced by Royal Decree.
