Liberties member the Belgian League of Human Rights and the Magistrates Union, the two requesting parties, are delighted that the Constitutional Court has decided, in its Ruling 148-2017 delivered in December 2017, to reject the law adopted on 5 February 2016 known as "Pot-Pourri II", which amended criminal law procedures and regulations.

The Constitutional Court's decision is a rebuke to the government over three areas of the Pot-Pourri II law.

1. The Criminal Court rises from the ashes

The Constitutional Court criticised the systematic "correctionalisation" of criminal cases. According to the Court, the legislature has distorted the notion of mitigating circumstances in order to address a criminal procedure issue (relieving the Criminal Court), but did so without reducing the applicable penalties.

Furthermore, the Constitutional Court placed the citizen at the heart of the debate: it considers that a jury should participate in the exercise of criminal justice. According to the court, the government must not limit the "right to social development" when it is not justified by public interest reasons.

2. The investigating judge, a key actor in the criminal trial

The interference with the right to respect for private life and the inviolability of the home constitutes a very serious intrusion. Therefore, the court stated that a search is only allowed under an warrant issued by an investigating judge. Such a judge is the only actor who meets the criteria of independence and impartiality.

3. The end of discrimination against foreign detainees without residence permit

The court criticized the systematic and absolute exclusion of foreigners without a residence permit in Belgium from the new regulations on the deprivation of liberty.

According to the court, different treatment based on the right of residence is not reasonably justified and causes inconsistency in the protection of fundamental rights.

The League of Human Rights and the Magistrate Union welcome the decision of the Constitutional Court, which will be a landmark ruling in the history of Belgian criminal justice.

Both organisations regret the government’s attitude, which has been unanimously criticised by the legal and academic communities. This costly and time-consuming situation is a source of legal uncertainty for every litigant.

The League of Human Rights and the Magistrates Union have, on many occasions, drawn the government’s attention to the inconsistency of such an approach, which consists in replacing a substantial part of the Penal Code and of the Code of Criminal Procedure with ad-hoc measures – instead of implementing a comprehensive reform of the criminal law and criminal procedures.