The Constitutional Court confirms the existing conversion mechanism for legal persons

At the introduction of the Belgian Penal Code in 1867 the natural person was always considered as the offender. Thus, the penal system was built from that perspective.

In 1999, the legislator increased its action in the fight against organized crime, a.o. by introducing the penal responsibility of the legal persons and the punishment of criminal organizations and bribery.

Not only did the legislator choose for an autonomous (i.e. not derived from the organs) penal responsibility of the legal person, but he also wanted to equalize as much as possible the penalty of legal persons with natural persons. As a legal person can of course not incur imprisonment, one needed to find a solution which would be considered as equivalent to some extent.

Although the legislator has not always followed this principle consistently, one may say that for many offences the existing confinement for natural persons is considered as reference point. Subsequently, a conversion mechanism is applied. For example : Fraud is punishable by 1 month to 5 years and a fine between 26 and 3.000 EUR. When one applies the conversion mechanism, the judge will be able to inflict – instead of the imprisonment – a fine between 500 and 120.000 EUR.

This mechanism was recently – although unsuccessfully – contested before the Constitutional Court (CC 18 2018, nr. 5/2018).  There were 2 elements of criticism.  Firstly, one criticized that the judge always needs to start from the imprisonment, even if he would not inflict such punishment for the natural person. Secondly, one criticized the system of fines in penal social law, where the fine always needs to be multiplied by the number of workers involved. For legal persons (contrary to natural persons) this means that the initial imprisonment first needs to be converted in a fine before being multiplied with the number of employees.

The Court countered both arguments by briefly stating that specific essential differences between natural persons and legal persons justify a different treatment. Moreover the judge, when inflicting a fine aiming proportionality, can always choose between the minimum and the maximum punishments.

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