How to avoid a criminal trial? 5 legal alternatives recognized in Belgium

Did you know that the congestion in Belgian courts is such that certain offenses go unpunished because they cannot be judged within a reasonable time? Faced with the increasing complexity of criminal procedures and their devastating reputational impact, many litigants are looking for solutions to avoid the ordeal of a public trial. Maître Innocent TWAGIRAMUNGU, lawyer in Brussels since 2005, regularly supports his clients in these alternative approaches allowing a criminal dispute to be resolved without going to court. Discover the 5 main legal avenues available to you to avoid a criminal trial while respecting the Belgian legal framework.

• Extended penal transaction: negotiate directly with the public prosecutor’s office an extinction of the public action subject to conditions (payment, compensation), with compulsory judicial approval since 2024
• Mediation-criminal measures: prioritize repairing the damage and follow appropriate measures (community service up to 120 hours, therapy) after recognition of your civil liability
• Plead guilty: speed up the procedure by admitting your guilt with mandatory assistance of a lawyer, for offenses punishable by less than 5 years of imprisonment
• Crisis communication in 3 phases: protect your reputation with a structured strategy (preparation in advance, management during the procedure, recovery after closure)

The extended penal transaction: negotiate directly with the prosecution to avoid the criminal trial

The extended penal transaction constitutes one of the most effective alternatives foravoid a criminal trial. Provided for by article 216bis of the Code of Criminal Procedure, this procedure allows the King’s prosecutor to propose an extinction of public action subject to compliance with certain conditions.

Since the 2024 reform, this procedure has been modernized with the introduction of acompulsory judicial approval. Unlike the old simple transaction (EAPS) which was limited to the payment of a sum of money to the FPS Finances, the expanded transaction now offers more guarantees with a judge’s control in a public hearing. This major development ensures better protection of the rights of litigants while maintaining the objective of avoiding criminal trial.

To benefit from this alternative, several conditions must be met. First, the prosecutor must consider that the offense does not merit a sentence greater thantwo years of imprisonment, even if theoretically the offense could result in up to ten years in prison (the scope of application having been broadened in 2011 to allow this flexibility of assessment depending on the specific circumstances of the case). Then, certain offenses are excluded from the system, in particular those involving serious harm to physical integrity. Finally, the undisputed part of the damage must have been compensated before any proposed transaction.

Please note:In addition to the extended plea agreement, there is also thecriminal composition, a separate procedure allowing the prosecutor to propose one or more alternative sanctions (fine, community service, awareness training) without going to court. Acceptance by the accused allows him to avoid any criminal conviction, thus offering an intermediate solution particularly suited to medium-serious offenses.

Criminal mediation and alternative measures: repairing the damage to avoid prosecution

Criminal mediation, transformed in 2018 into a “mediation procedure and measures” according to article 216ter of the Code of Criminal Instruction, represents an approachrestorer of justice. This alternative makes it possible to avoid a criminal trial by prioritizing compensation for the damage and accountability of the perpetrator.

The figures speak for themselves: the Médiante association organizes between1000 and 1200 mediations annuallyfor all French-speaking districts of Belgium. Contrary to popular belief, this procedure is not limited to minor infractions. In fact, 10% of mediations concern murder and 10% sexual assault, demonstrating the applicability of this alternative even for serious offenses. It is interesting to note that 85% of requests for mediation come from services operating with perpetrators, compared to only 15% transmitted by victim support services, indicating an approach mainly initiated on the side of the defendants.

To access this alternative route, three prerequisites must be met. The defendant must firstrecognize civil liabilityin fact. He must then undertake to compensate the victim and pay the analysis costs within a specified period. Once these conditions are met, various measures can be proposed: community service (maximum 120 hours), therapeutic monitoring, specialized training or any other measure adapted to the situation.

Practical example:A business manager prosecuted for acts of moral harassment against an employee was able to benefit from mediation measures. After recognizing his civil liability and paying 5,000 euros in compensation to the victim, he undertook to follow a 40-hour training course on caring management and to carry out 80 hours of community service with a victim assistance association. This solution allowed him to avoid a public trial which would have had a significant impact on the reputation of his company.

Pleading guilty: speeding up the procedure by prior recognition of guilt

Introduced in Belgium by the potpourri II law of February 19, 2016, pleading guilty offers a possibility of avoiding a traditional criminal trial whileconsiderably speeding up the procedure. This alternative is inspired by Anglo-Saxon systems but has been adapted to the Belgian legal context with specific guarantees.

This procedure applies to offenses punishable by less than5 years of imprisonment, excluding the most serious crimes such as murder, rape or moral offenses against minors. The assistance of a lawyer is mandatory throughout the procedure, thus guaranteeing the rights of the defense. A reflection period of maximum 10 days is imposed before accepting the agreement, allowing the defendant to consult his counsel in complete confidentiality.

The procedure takes place in two distinct phases. First, a phase ofnegotiation with the prosecutorallows the terms of the agreement to be defined, including the proposed sentence and the terms of compensation for victims. Then, the court proceeds with the approval by verifying compliance with the legal conditions, the proportionality of the sentence and the desire to compensate the victims. The judge cannot modify the agreement: he approves it or refuses it (with the possibility of returning to the prosecutor for renegotiation in the event of refusal), thus guaranteeing the legal stability of the negotiated agreement.

Negotiated dismissal of proceedings: convincing the public prosecutor of the inadvisability of prosecution

The discretionary power of the public prosecutor, constitutionally recognized since 1987, allows in certain cases to obtain aclassification without further actionand thus avoid a criminal trial. This alternative is based on the prosecutor’s conviction that prosecution is not appropriate, despite the possible existence of an offense.

Since the introduction of article 28quater, any classification decision must beformally motivated. This motivation may be limited to noting the absence of an offense, the impossibility of identifying the perpetrator, the insufficiency of the charge or simply the untimeliness of the prosecution. It is crucial to understand that this decision remains provisional: the public prosecutor can reverse its decision as long as the public action is not terminated, in particular if new elements appear or in the event of significant developments in the case.

For victims, several appeals remain possible in the event of a dismissal. They can file a complaint withconstitution of civil partybefore an investigating judge, thus forcing the opening of a judicial investigation. Alternatively, directly summoning the alleged perpetrator to court remains an option, thus circumventing the prosecutor’s decision.

Advice :To maximize your chances of obtaining a dismissal, meticulously document all the elements favorable to your situation: absence of criminal record, spontaneous compensation for the damage, mitigating circumstances, disproportionate impact of the proceedings on your professional or family life. The quality of your defense and the relevance of the arguments presented to the prosecution are decisive in this delicate negotiation requiring the expertise of acriminal law lawyer in Brussels.

The accelerated procedure: drastically shortening deadlines when avoidance becomes impossible

When other alternatives to avoid a criminal trial are no longer possible, the accelerated procedure at least makes it possible tolimit the temporal impactprosecutions. This procedure schedules the hearing in a remarkably short time of 2 to 4 weeks after the summons is served, with a judgment rendered within two weeks of the hearing.

This alternative is particularly suitable forvulnerable litigants: people without a fixed address, illegal residents or in any situation where a traditional procedure would extend over months or even years. The speed of this procedure helps limit legal uncertainty and its consequences on personal and professional life.

Practical advice for choosing the best alternative to avoid your criminal trial

Before considering one of these alternatives, severalpreliminary checksare required. First, make sure that the sentence estimated by the prosecutor does not exceed the legal thresholds specific to each procedure. For example, the plea bargain and mediation require that the offense deserves no more than two years of imprisonment according to the assessment of the public prosecutor.

Therecommunications strategymust be coordinated with legal strategy, particularly in high-profile cases. The reputational impact of a criminal trial can be devastating, especially since in the public’s mind, an indictment often equates to a conviction. A dedicated team must prepare the communication elements adapted to each scenario (with a structure in three phases: reputational protection upstream, optimal management during the procedure, and recovery actions after closure). It is essential to prepare appropriate key documents: arguments, press releases, messages for employees, investors, shareholders and customers, while taking care not to violate the secrecy of the investigation through inappropriate communication.

Please note:Other alternatives can be negotiated with the prosecution depending on the circumstances. THEprobationary stayallows you to avoid serving the prison sentence by respecting prohibitions or obligations set by the judge (medical care, continued employment, progressive compensation for victims). Thereelectronic monitoring, although representing less than 1% of the prison population, constitutes an alternative to detention accessible under strict conditions (legal residence permit, fixed address, landline telephone). THEcommunity servicecan also be proposed as an independent measure: unpaid work for the benefit of associations or public establishments, limited to a maximum of 120 hours.

• Carefully assess the impact on any pending reprieves or conditional releases before accepting a transaction or pleading guilty
• Favor the creation of a direct civil party rather than a simple filing of a complaint to avoid automatic classifications
• Propose concrete and realistic measures during mediation-measures negotiations
• Carefully document all favorable elements which could justify a classification without further action

Faced with the complexity of the Belgian penal system and the multiple possible alternatives to avoid a trial, the support of an experienced lawyer becomes essential. Maître Innocent TWAGIRAMUNGU, with nearly 20 years of experience in criminal law, guides his clients through these different options with an approach that is both rigorous and human. Its Brussels firm offers transversal expertise covering not only criminal law but also related aspects such as compliance and corporate law, allowing a global vision of each situation. If you are faced with criminal proceedings in the Brussels region, do not hesitate to seek their expertise to explore legal alternatives adapted to your situation and avoid the consequences of a criminal trial.