Legitieme verdediging. Gebruik en misbruik van de procedurele rechten door de verdediging in strafzaken

In recent years, there has been increasing discomfort with magistrates and the general public about alleged abuse by the defence of its procedural rights. This discomfort has led on the one hand to an appeal for sanctions in order to counter the perceived problem of ‘abuse of process’ and on the other hand to a diminishment or even abolishment of some procedural rights of the defence. It remains remarkably unclear however, which procedural behaviour of the defence effectively can be qualified as ‘abuse of procedural rights’ by the defence and moreover whether or to what extend the fundamental rights of the defence allow for a qualification of (some instances of) procedural behaviour of the defence as ‘abuse’. This doctoral thesis addresses this fundamental question in de context of Belgian criminal law. It reaches the conclusion that the qualification of procedural behaviour of the defence as a real form of ‘abuse of process’ only is possible to a very limited extend. Indeed, the analysis of Belgian criminal procedure suggests that within the plenitude of procedural hindrance by the defence, three types can nevertheless be identified. The first one is the ‘erroneous’ use of a procedural right, i.e. the use of a procedural right in circumstances where the defence clearly does not possess that right. The second one is the ‘illegitimate’ use of a procedural right, i.e. the use of a procedural right contrary to its ratio legis. The third one is the mere ‘harmful’ use of a procedural right, i.e. the use of a procedural right in a way which – given the specific circumstances of the case – disproportionally hinders the smooth course of justice compared to the benefits for the defence. Only the first type of hindrance can be qualified as real ‘abuse’ by the defence of its procedural rights. The qualification of the second one as abuse would run counter to the fundamental principle of the freedom of defence as it exists in inquisitorially oriented criminal procedures. The qualification of the third one as abuse would generally be contrary to the principle of legality in criminal matters. Furthermore, it addresses the issue of how to deal with procedural behaviour of the defence which can hinder the smooth course of justice. It reaches the conclusion that three reactions are possible. The first one is the restrictive interpretation of the existing procedural rights of the defence. This option however is limited by formal principles such as the principle of the separation of powers and the principle of formal legality. The second one is the neutralisation of the impact of disturbing defence behaviour on the smooth course of justice. The third one is the sanctioning of ‘abuse’ by the defence of its procedural rights with a procedural fine or even as a specific crime.status: publishe