Ineffective pre-trial detention
Is it possible to receive compensation when one has had to spend a period of time in pretrial detention unnecessarily? This article takes a closer look at the principle of ineffective, or unworkable, pretrial detention, and what conditions apply to eligibility for compensation.
A financial relief is provided in the Belgian legal system, for certain persons who were wrongfully required to remain in pre-trial detention.
However, in order to claim such compensation, a number of conditions laid down in the Act of March 13, 1973 on compensation for ineffective pre-trial detention must be met.
First, one must have spent more than eight days in pretrial detention and the pretrial detention must not have been due to the person's personal conduct.
When assessing the personal conduct of the person in question, a combination of behaviors must be considered, such as, for example, difficult initial interrogations, criminal priors or non-cooperation in searches or readings from digital media.
It is important to note here that this "personal conduct" should not be confused with indications of guilt. Thus, the mere fact that someone appeared at first glance to be involved in a crime cannot lead to a disqualification.
It must then be shown that the pretrial detention proved unnecessary.
This can be done if the person in question has been directly or indirectly taken out of the case, if the person provides evidence that he is innocent, if it would appear that the criminal action was already time-barred before he was taken into custody, or if he has obtained an order or judgment of non-prosecution that expressly establishes that the act by which he was taken into custody is not a crime.
To apply for compensation, one must send a petition to the Minister of Justice. The latter must then decide on the merits of the request within six months.
If the Minister rejects the request, or does not decide within six months, an appeal may be lodged with the Registry of the Court of Cassation. The appeal will then be heard by the Commission on Inactive Detention, which in principle consists of the First President of the Court of Cassation, the First President of the Council of State and the Dean of the National Bar Association.
Both material and moral damages are eligible for compensation. This compensation is determined according to fairness, taking into account all circumstances of public and private interest. This implies, therefore, that not all damage suffered will necessarily be compensated.
Were you wrongfully remanded in custody as part of a criminal investigation? Then you can contact us at info@bannister.be or at our phone number 03/369.28.00. Our specialized lawyers know exactly what to do to obtain compensation, and will be happy to help you.
