Belgium: Defining a criminal organisation (feature)
01 May 1998
In June 1997 the Belgian Chamber of Deputies approved the first draft of a law on criminal organisations, to which lawyers, academics and human rights organisations quickly raised objections. The bill was re-examined in the Senate, where amendments were set down for scrutiny by the Senate Justice Commission. By mid January 1998 the Government put forward further amendments to the Justice Commission, some of which it subsequently revised. At the beginning of April the bill as revised by the Justice Commission was adopted almost unanimously by the Senate. The bill has been finally amended by the Chamber Justice Commission and is now ready for a final vote by the Deputies.
The debates surrounding the question of organised crime in the EU may be identified as a starting point for the measures drafted in Belgium. The Council referred, in a preamble to its action programme on organised crime, to the infiltration of structures and organisations of civil society, at a transnational level, by criminal organisations and called this phenomenon "...a menace to society such as we know, and wish to preserve it". As part of the effort to combat this phenomenon, the Belgian Minister for Justice elaborated the following three objectives:
1. To define a criminal organisation.
2. To criminalise any form of participation in a criminal organisation.
3. To write new methods and powers in investigations undertaken by police and magistrates into Belgian law.
Objections to the revised draft of the bill continued to be raised, particularly by the League for Human Rights (la Ligue des droits de l'Homme). These objections pertained in particular to the imprecise wording of the proposed additions to the penal code and to the legitimation of "proactive investigation" by police and magistrates, which will allow mini-investigations, outside juridical control, into organisations on the basis of "reasonable suspicion" that the organisation in question intends to carry out punishable offences.
The bill before the Chamber proposes the addition of two sub-articles to article 324 of the Belgian Penal code: 324 bis and 324 ter. The former defines a criminal organisation, the latter criminalises participation in a criminal organisation. Article 324 bis reads:
"A criminal organisation is a structured association of more than two people, established over a period of time, with a view to committing, in a concerted manner[...]crimes and offences punishable by a sentence of three years in prison, or by a more serious penalty in order to obtain, directly or indirectly, material benefits[...]by means of intimidation, threats, violence[...]fraud or corruption using commercial or other structures to conceal or to facilitate the offences."
The main objections raised in relation to 324 bis, by the Reflex group, (based at Brussels University), included the fact that the wording of the article fails to bring within its remit organisations which commit crimes as ends in themselves. Whilst from the wording it is clear that crimes committed in order to gain material benefits will be held to point to the existence of a criminal organisation, crimes committed as ends in themselves appear to have been excluded. This appeared to constitute a significant lacuna in attempts to combat organised crime. A paedophile network or a racist group, for examples, may pursue extremely pernicious but non-profit-making activities, whereas certain trade union activities, such as demonstrations for pay increases, could have led to the union being identified as a criminal organisation, (if, for example, criminal damage occurred during the course of the demonstration). Thus an organisation such as a trade union which is generally not seen or recognised as having a criminal nature could have been brought within the remit of the legislation, whilst the nature of paedophile or racist groups' activities may leave them outside its scope. Reflex called for a clearer distinction<