WITNESS PROTECTION IN BELGIUM

GUIDE FOR WITNESSES OF CRIMES COMMITTED IN SYRIA

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I. TIMELINE: Criminal Proceedings in Belgium?

II. ELIGIBILITY: Who can be a witness in Belgium?

III. OPTIONS: Witness Protection Measures in Belgium

IV. LIMITS: Considerations to have in mind before becoming a witness in Belgium

V. KNOW YOUR RIGHTS

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This guide is meant to provide general information about your rights as a witness. It is not legal advice. If you require legal advice, you should contact a lawyer specialised in representing witnesses in criminal cases. Relevant contact information is provided at the end of this guide.

This guide was reviewed by Marie Wilmet, postdoctoral researcher at the Centre de Recherches en Droit Pénal (CRDP), Brussels.

I. TIMELINE: Criminal Proceedings in Belgium

In Belgium, criminal proceedings are divided in three different stages: the preliminary investigation (‘information’), the judicial investigation (‘instruction’), and the trial. These stages are differentiated by the authorities involved, the powers conferred to them and, consequently, the obligations of the various participants in the trial.    

The preliminary investigation is conducted under the authority of the prosecutor and aims at collecting evidence and information on a crime committed, as well as its perpetrator. The investigative acts available to the prosecutor are limited and cannot compel individuals. If compelling measures are necessary to the investigation, the prosecutor then requests the investigative judge to open a judicial investigation. 

The investigative judge investigates independently all elements of the case, in favor or against the suspect. They can order compelling measures, including, for example, witnesses testifying under oath, searches, phone tapping, issuing an arrest warrant, and detaining the suspect.

The police support the prosecutor’s office or the investigative judge in the requested investigative acts. 

Once the investigative judge has concluded their investigation, the case file is shared with the prosecutor. Ultimately, the investigation is closed following a hearing in front of the investigative jurisdiction (‘chambre du conseil’ or ‘chambre des mises en accusation’), where the prosecutor, the investigative judge, and the parties are heard. The council chamber then decides whether the case should be dismissed (‘non-lieu’) or if the indicted should be summoned to appear in front of the relevant court, where the trial phase begins. Crimes normally fall under the jurisdiction of the Cour d’assises, composed of three professional judges (including the Presiding Judge) and a popular jury of twelve citizens, who will decide on the culpability and punishment of the accused. Under specific conditions, the crime can be tried in front of the tribunal correctionnel, composed of one or three judges, depending on the case. 

II. ELIGIBILITY: Who can be a witness in Belgium

What is a "witness"?

A witness is a person who has knowledge of the crime or of the circumstances under which it occurred (art. 71 CIC). Witnesses are asked to describe in the most objective manner what they have heard, seen, or perceived in connection to the case and crimes.

Is a witness’s participation always voluntary?  

As a witness, you are not necessarily required to testify during the investigation or the trial. Witnesses can inform the judicial authorities of their willingness to testify. 

During the preliminary investigation, the prosecutor may interview victims or witnesses who present themselves voluntarily on invitation of the authorities. At this stage, neither the prosecutor nor the police have the power to compel individuals to testify (art. 28bis CIC). You have the right to remain silent (see what are the rights of a witness). 

During the judicial investigation, a witness can be summoned by the investigative judge upon request of the prosecutor, through a bailiff's writ or public officer citation (which is the most common). A witness can also be summoned by the trial judge during the trial. When summoned, a witness has the legal obligation to appear in front of the investigative or trial judge. If the witness fails to appear, they can be fined, and the judge can then also use force to compel the witness to appear. You may be exempt from the fine if you provide a legitimate excuse for your first absence (art. 80-81, 157-158 CIC). 

If you are sick or unable to travel to the hearing location, you should inform the authorities through the contact information provided in the document you have received. You should prepare the supporting documents, such as a doctor’s notice. Ultimately, you may also be heard at your home (art. 80-81, 157-158 CIC). 

What is a testimony under oath?

When the investigative judge requires the witness to testify, the witness testifies under oath. It means that you swear to tell “all the truth, and nothing but the truth” (art. 75 CIC). This is not applicable to hearings requested by the police or the prosecutor, where you cannot be compelled to answer questions. When heard during the trial, in front of the judge, witnesses also testify under oath (art. 155 CIC). 

However, you cannot be prosecuted for making a simple mistake in good faith. You have an opportunity to withdraw your testimony before the closure of the trial debate (when it becomes irrevocable), provided that you will then tell the truth. 

What are the rights of a witness? 

During the preliminary investigation, the witness has the right to choose whether to make a declaration, answer questions, or remain silent. Before the investigative judge or the trial judge, your declarations are made under oath, and you must answer questions. 

Once investigations are open, any person being heard, including victims and witnesses, cannot be compelled to incriminate themselves (art. 47bis §1 & 70bis CIC) . They should also be informed that the declarations can be used as evidence in trial, that all questions and declarations will be written down in their exact wording, and that any documentation in their possession can be used (including notes you have taken). These  (e.g., pictures, medical certificates, etc.) can then be added to the hearing minutes and the case file (‘dossier’). In addition, a witness  can also suggest a specific hearing or investigative act to be performed. 

At the investigative stage, a witness can consult a lawyer before the hearing, who will not be assisting you during the interview. If a witness is heard as a suspect and is at risk of incriminating themselves, they can be accompanied by their legal counsel during the hearing (art. 47bis §7 CIC). Legal counsel is present to ensure your rights are respected and the absence of external pressures or constraints. Counsel may notify the authorities leading the hearing of any violations observed and demand that those are included explicitly in the hearing minutes.

 It is important to note that if you are not a Belgian citizen, you still benefit from all these rights, and they are on no occasion restricted. 

What is the typical process of giving testimony? 

When you are delivering your statement or testimony (at all stages of criminal proceedings), a record (“minutes”) of the hearing will be drafted, containing all information about the conduct and circumstances surrounding the hearing: the date; hour; interruptions; and identity of the persons who intervened, including the person being heard (art. 47bis §6 CIC).

At the end of the hearing, the minutes will be available for you to read, with the possibility for you to request changes and corrections. Alternatively, you can ask that the police, prosecutor, or investigative judge read you the minutes. If you do not agree with what is included in your statement, you can also refuse to sign the minutes. 

Before the investigative judge, the witness should appear with the request they have received (art. 74 CIC). The witness will also be required to indicate their full name, age, marital status, employment situation, residence/registered address, and whether they are a parent to the defendant. However, those elements can be concealed from the hearing minutes if requested and under specific conditions (see partial anonymity). At the end of the hearing, the statement will be read to the witness, and will then be signed by them, the judge, and the judicial officer present. If the witness cannot or refuses to sign, this will be indicated in the minutes (art. 76 CIC).  

 The preliminary and judicial investigations are said to be “secret”. This means that professionals involved in its conduct, such as the prosecutor or the investigative judge, cannot reveal elements of it to the public, except if for public interest. Even then, the identity of the people cited in the case file should not be disclosed (art. 57 CIC). 

During the trial, it is generally the hearing minutes themselves that are presented as evidence. However, when a trial happens in the Cour d’assises (where the most serious crimes are tried), the witness might be called to testify in person.

 Practical steps in court:

• If testifying at trial, come to court with the convocation you have received and your ID.
• Upon arriving, ask the clerk in which courtroom you will be heard.
• Once in the courtroom, find the court usher (generally sitting in the first row of benches without a uniform) and introduce yourself as a witness.
• You will be asked to wait in a specific room for witnesses, separate from the courtroom.
• You cannot attend the trial before your testimony.
• All witnesses are heard separately, and under oath.
• The judge (or president, if there are multiple judges hearing the case) will be the first to address questions to the witnesses, then the parties will be allowed to. When you speak, even to answer the parties’ questions, you will never be addressed directly by them and will reply only to the presiding judge. Once you have given your testimony, and if the judge does not require you to stay, you are free to leave the room and, if you want to, go back to the court hearing.

Is the suspect/accused present during witness interviews?

No. During the judicial investigation, the witnesses are heard by the investigative judge separately from other witnesses and without the accused or their counsel being present (art. 75 CIC), unless the investigative judge requires a confrontation. A confrontation is an investigative procedure designed to help establish the truth. It is not strictly defined and can take on several forms, including bringing an alleged offender face-to-face with a witness for them to answer questions on contested facts,  an identification session using a one-way glass, or presenting photos and videos. The witness or victim retains all of their rights during this procedure (see what are the rights of a witness). 

In the event complete anonymity is granted (see complete anonymity), the investigative judge informs the party of this measure through a letter, which notifies the suspect/indicted, the plaintiff, and their respective counsels of the hearing and invites them to attend (art. 86ter CIC). Before or during the hearing, the parties can share with the investigative judge all the questions they wish to address the witness. The judge can also command that the prosecutor’s office, the suspect/indicted, the plaintiff, and their respective counsels are to attend the witness’s hearing from another room, if the measure is necessary to preserve anonymity. In this case, telecommunications will be used. 

During the trial, hearings are generally public and in the presence of the accused/indicted. However, in particularly harrowing or disturbing cases, the judge can decide that the trial should take place without the public to protect public order and morals (art. 148-149 Const.). If the witness is granted complete anonymity (see complete anonymity), they will not be asked to testify in court, unless they consent to it (all measures will then be taken to preserve anonymity) (art. 189bis CIC). 

Does the suspect/accused have access to the witnesses’ testimonies and identities?

The case file contains all evidence gathered by the prosecutor or the investigative judge during their investigation (including the hearing minutes), to which the suspect/indicted or the plaintiff can be granted access (visit and copy) upon their request (art. 21bis CIC). The prosecutor is the authority in charge to grant such access and can deny it partially or entirely if it presents a danger to individuals, if it seriously violates their privacy, or if the case is currently under instruction. When access is denied, it is possible to appeal to challenge the decision.

At the end of the investigative phase and during the trial, the dossier is made available to all parties in its entirety (art. 127 §2 CIC). This means that your identity would be revealed at this stage, unless anonymity measures were previously granted.

Can the witness be or become a party to the proceedings? 

By definition, the witness is not a party to the proceedings. However, if the witness is also a victim of the crime, procedures exist to become a civil party – an active party to the proceedings.

Different statuses in criminal proceedings confer different rights. All victims have a right to be kept informed during the procedure and to be heard. In addition, they also have the right to psychological and social support. If you or your family are victims of violence, you can reach out to the Victim Support Service (Service d’aide aux victimes - SAV). 

To become a civil party, the victim must have suffered harm as a result of the commission of the offence. The civil party has the right to access the case file, to request additional investigation operations and procedures, to request the translation of the documents used during the proceedings, to call and question witnesses, and to make written and oral submissions. Civil parties also can claim reparations and have the right to be assisted by a lawyer.

If criminal proceedings have already been initiated, you can bring a civil action and become a civil party at any stage of the proceedings before the appeal.

Alternatively, if you suffered harm from the crime committed, you have the possibility to file a declaration (personally or through a lawyer) by the relevant prosecutor’s office to become “personne lésée,” an intermediate status between victim and civil party. This confers additional rights, including to provide any evidence to the case file that you deem relevant, being informed of the fate of the investigation, the right to legal representation, and to access the case file or proceedings. However, as a personne lésée, you do not have the possibility to claim reparations. 

Ultimately, if the victim did not intervene as a civil party during the criminal proceedings, it is possible to later file a civil lawsuit to claim reparations (subjected to the applicable rules). 

For further information, please contact a lawyer or legal aid services.

Is a witness necessarily innocent? 

No, if in the course of their testimony, a witness reveals incriminating facts that can be attributed to them, they will be informed of their rights as a suspect before continuing the interview.

Can a witness be investigated and indicted during the trial/investigations? 

Yes, if a witness is suspected of giving false testimony during the investigation or trial or if they give incriminating statements, they can be investigated and held accountable. If this happens, they will then be informed of their rights as a suspect. This can happen even if the witness benefits from partial or complete anonymity (art. 86quater CIC). Indeed, the investigative judge is then obliged to communicate your identity to the prosecutor or other investigative judge competent for those offences. Until the trial phase, only those entities will have access to your identity.

Can minors be witnesses?

Yes. Minors can be heard at all stages of proceedings, but under specific conditions. At the instruction or trial stage, minors below fifteen years old can be heard and make a statement, but not under oath (art. 79 CIC).

Does the witness have to be located/reside in Belgium? 

The prosecutor or the investigative or trial judge can decide to hear a witness by videoconference (art. 112 & 158 CIC) when the witness is offered protection measures (see protection measures for threatened witness) or when the witness lives abroad, with their consent.

There are two conditions:

1. there must be reciprocity with the country of the witness’s hearing; and
2. in-person testimony is impossible or not recommended/desirable.

At trial, a testimony or statement made by videoconference will have the same legal value as one given in person. For the protected witness, a closed-circuit television system can be employed.

Alternatively, the prosecutor or the investigative judge can also request that the hearing will be done by conference phone call. In this case, the statements made are considered as evidence during the trial only if significantly corroborated by other proof. 

It is important to note that, in both cases, the hearing will be recorded and will be accessible to all parties to the trial and persons professionally involved in the investigation. In addition, measures related to anonymity (see complete anonymity) will remain applicable, and sound and video effects can eventually be added during the trial. In this case, statements made are considered as evidence only if significantly corroborated by other proof.

The Service for Witness Protection (WP) of the judicial police is responsible for the organization and execution of video conferences for threatened witnesses.

Can a witness testify in his/her mother tongue? 

During the investigation, victims who do not speak French or Flemish adequately may either be assisted by a sworn interpreter at the expense of the state, make the declaration in their own language (the statement will be recorded in that language), or provide a written declaration in their language.

During the trial, an interpreter will automatically be called if the person heard does not understand or speak the language of proceedings (art. 282 CIC).

 To what compensation is a witness entitled? 

 At the trial stage, two types of compensations are granted to the witnesses:

1. An appearance allowance (fixed at 21,38€).
2. A travel expense allowance (0,65€ per kilometer).

To claim compensation, the witness has to go to the court registry (‘greffes’) and give the notice of summons (‘convocation’) with their ID. The allowance is given immediately.

In addition, you can ask for an attendance certificate for your employer.

III. OPTIONS: Witness Protection Measures in Belgium

In some cases, a witness can have their identifying information hidden from the public or can testify completely anonymously. Different standards apply depending on the type of anonymity requested. Under specific circumstances, threatened witnesses can also benefit from protection measures.

Anonymity 

• Partial anonymity

If the witness, or a relative/someone close to them, would presumably suffer serious harm in the event their identity and the content of their statement were to be disclosed, some of the personal information identifying them can be hidden from the hearing minutes. The measure implies that the full name (both name and surname) will not be omitted in its entirety, as it is not protected under this measure. The parties, including the accused and their counsel, have access to all information.

• Procedure

The investigative judge can decide on their own initiative or following the request of the witness or their counsel, the prosecutor, the suspect/indicted or plaintiff/civil party and their counsels, to grant partial anonymity (art. 75bis CIC). Considering no special requirements are prescribed by law, the witness should communicate their anonymity request to the investigative judge orally or in writing. It can be granted during the information or instruction phase of the proceedings, but is always subject to the decision of the investigative judge. If granted, partial anonymity will continue to apply during the entirety of the trial. The trial judge can also decide to hear new witnesses, to whom they can grant the measure, with the same preconditions applicable in front of the investigative judge (art. 155bis & 296 CIC).

• Complete anonymity

If the witness, or a relative/someone close to them, feels (1) that their integrity is seriously threatened and they are endangered because of their testimony and (2) they have indicated that they would not testify because of this threat, they may request to testify completely anonymously. A higher threshold of potential harm must be shown than for partial anonymity. In addition, complete anonymity is only available if the testimony relates to specific grave offences (amongst which are crimes against humanity and war crimes – a full list is provided in art. 90ter §§2-4 CIC), and if no other investigative measure would be sufficient to ascertain the truth.

• Procedure

Considering the absence of special requirements prescribed by law, the witness should communicate their anonymity request to the investigative judge orally or in writing. Complete anonymity will only be granted at the instruction or trial stage if partial anonymity does not offer sufficient protection. Complete anonymity can be granted following the investigative judge’s initiative or by request of the prosecutor’s office following the demand of the witness (or the suspect/indicted, the civil parties, and their respective counsels)The measures then apply throughout the entire proceedings.

Before granting complete anonymity, the investigative judge, who has knowledge of the identity of the witness, assesses their reliability and trustworthiness. The decision of the judge whether or not to grant complete anonymity cannot be challenged. During the interview, the investigative judge will ensure that the witness does not reveal their identity. The accused and their counsel will therefore not be able to identify the witness. The parties to the proceedings can however be present in another separate room and can submit questions to the anonymized witness.

If the witness is granted complete anonymity, they will not be asked by the trial judge to testify in court, unless they consent to it (all measures will then be taken to preserve anonymity). If necessary, the trial judge can request on their own initiative or as per one's party’s request that the anonymous witness be heard again by the investigative judge (art. 189bis CIC). 

In both procedures of partial and complete anonymity, while identifying information will not appear in the case file, the prosecutor’s office holds a registry where your complete identification will be kept. The prosecutor’s office also has the obligation to take any reasonably necessary measures to prevent the disclosure of the identifying information. 

The Service for Witness Protection (WP) of the judicial police is the authority responsible for the organization and the course of anonymous testimonies. 

Measures against intimidation: punishment for pressuring a witness 

Witness intimidation is punishable by imprisonment (art. 223 CP). The Penal Code in Belgium specifically provides that contempt of a witness or physical violence inflicted on them for statements provided in proceedings is punished by a fine or imprisonment (art. 282 CP). 

If you feel threatened or intimidated or suffer direct violence, you can contact the police at + 32 110. If you wish to report the crime, you can file a complaint at the police or the prosecutor’s office, with or without the assistance of legal counsel.

General security measures

The police are also responsible for protection and crime prevention. If you feel endangered or at risk, call the emergency number +32 110 to request their intervention.

Protection measures for vulnerable adults

A vulnerable adult is any person in a vulnerable situation due to age, pregnancy, illness or physical or mental disability or infirmity. If heard as witnesses of specific offences during criminal proceedings, they are entitled to protective measures and an adapted conduct of proceedings, including, for example, the right to be accompanied by the adult of their choice for their interview (art. 91bis CIC).

Protective measures for threatened witnesses

When a witness is threatened, protection measures may be awarded by the Witness Protection Commission. These must be requested by the prosecutor or the investigative judge. The protection measures are granted through a witness protection agreement, under which the protected witness commits in return to testifying at trial as many times as required. 

The general protection measures are available to (art. 102 CIC):

1. The threatened witness;
2. The spouse or partner of the witness and parents of both the witness and their partner if they live in the same house, or their adoptive parents or adopted children;
3. Other third-degree relatives of the witness who do not live in the same house, the parents of their spouse or partner who do not live in the same house, the witness’s adoptive parents or adopted children who do not live in the same house, and the parents of the adopted parents or adopted children to the second degree.

Special measures are granted exceptionally for witnesses (and victims) of only specific offences (see what protection measures are there).

In some cases, other individuals may receive protective measures if requested by the prosecutor or investigative judge, based upon a letter from the threatened witness. Ultimately, the Commission will only grant this additional protection if the individuals are actually in danger.

In addition, witnesses granted partial or complete anonymity and whose identity was revealed due to circumstances beyond their control are also entitled to protection measures (art. 111 CIC).

What protection measures are available?

1. Ordinary measures (art. 104 §1 CIC):These include the protection of personal information in the population registry, advice regarding security and prevention, installation of (preventive) security equipment, designation of a contact official, setting an emergency procedure, psychological support, police patrols, recording of incoming and outgoing phone calls, regular check of the national registry and/or personal data of the witness, a secret phone number, protected license plate, emergency phone, close-knit guard, electronic protection, temporary relocation for up to 45 days, and a contact address. 
2. Special measures (art. 104 §2 CIC): These measures will be granted if ordinary ones are not sufficient to ensure the protection of the threatened witness and if the testimony is related to specific offences (art. 90ter §§2-4 CIC), amongst which are crimes against humanity or war crimes. Special measures include relocation for more than 45 days, an identity change (only for Belgian nationals per art. 106 CIC), and temporary documents for an identity change.

In addition, financial measures are available under the scope of special protection (art. 104 §3 CIC), which may include a monthly allowance for the living costs of the witness, their family, and other protected parents, a single allowance to start a professional activity, and special contributions to specific ends. 

Finally, psychological support and employment-search assistance are always available to the protected witness (art. 104 §4 CIC). Preventive surveillance can also be offered if necessary to protect the physical integrity and security of the protected witness, family, and other protected parents (art. 104 §5 CIC). 

All measures are secret. Any person who, because of their professional occupation, has knowledge of these measures or assists in their operation is legally required to maintain secrecy (art. 104 CIC; art. 458 CP). 

Can the witness lose protection, or can the protection be modified?

At least every six months, upon request of the judicial authorities, the Service for witness protection will assess whether the measures first granted, including financial ones, should be modified or withdrawn. Modifications will be based on the evolution of the existing threat for the witness and the necessary protection. Protection measures can also be withdrawn if the protected witness endangers their protection or commits an offence (including false testimony)

• Procedure

The law does not provide any formal procedure for a witness to request protection measures; they are to be suggested to the Commission for Witness Protection by the prosecutor or the investigative judge. 

The Service for Witness Protection (WP) of the judicial police is responsible for the organization of protection measures for threatened witnesses in national and international cases. 

IV. LIMITS: Considerations to have in mind before becoming a witness in Belgium 

Can I/when do I qualify for state-sponsored counsel?

There are two types of state-sponsored counsel in Belgium: (1) the Commission for legal aid (‘Commission d’aide juridique’) establishes a local service provided by lawyers and a helplinethat shares practical legal information or refers you to the right organization depending on your personal issue; and (2) the Office of legal aid (‘Bureau d’aide juridique’) organizes consultations, an individual form of aid, providing detailed legal assistance and advice, during or outside judicial proceedings. You can request the assistance of a lawyer that will be either partially or completely free of charge, depending on your financial status or individual circumstances. If you want to be assigned a lawyer, you can make an appointment using this platform. For additional information, please visit their website.

Can a witness located abroad benefit from protection measures? 

The definition of a threatened witness also encompasses those who would be endangered because of their declarations abroad, if reciprocity applies with the country they are located in.

Can testifying in court have an impact on my asylum application? 

The CGRA/VS is the authority responsible to decide on asylum applications in Belgium. It is not a judicial authority but an independent administrative body.

The CGRA/VS can reject your asylum application if you have been found guilty of a grave crime or if you represent a threat to Belgian society and security. Your criminal records are also checked during the assessment of your request.

 V. KNOW YOUR RIGHTS  

 Useful contacts and links:

• Judicial authorities’ guidelines for witnesses: https://justice.belgium.be/fr/themes_et_dossiers/que_faire_comme/temoin.
• Contact of judicial authorities: https://adresses-judiciaires.just.fgov.be/
• State-sponsored legal aid and open consultations: https://www.bajbruxelles.be/contacts-et-liens-utiles.
• Legal aid helpline: (+32) 02.511.54.83.
• Victim Support service: https://aideetreclassement.be/aide-aux-victimes/
• Asylum procedure: https://www.asyluminbelgium.be/fr/topic/procedure-dasile
• Legal Refugee Helpdesk: Quai au Bois de Construction 10, 1000 Bruxelles (on Mondays, Wednesdays, Fridays – from 1 p.m. to 4 p.m.)