Research

The prime research areas for the Institute of Criminal Law are:

1. Terrorism and Organized Crime
2. White collar crime, in particular Cybercrime
3. Protection Mechanisms in Criminal Procedure
4. Sentencing and the Execution of Sanctions

Within each area there is continuous concern for the interplay between national and international (particularly European) norms and policies on the one hand and that between substantive law and procedure on the other.

Doctoral research

• Jana Arsovska
  Understanding a culture of violence and crime: the role of the Kanun laws in the evolution of the ethnic Albanian organized crime groups
  Today popular and press images of the Balkans repeatedly draw upon the theme of violence and organized criminal activities. Along with the themes of fragmentation, violence and crime have become components of the definition of the term “Balkans”. The interpretation of the nature and the role of violence and crime in ‘the culture’ of the region have taken quite contradictory directions. One of these accepts the normality of Balkan violence and other sees violence as something which is exceptional and which requires explanation. In making any comparative sociological investigation, it is important to revise some of the ‘common’ responses to violence and crime which often prevent researchers from thoroughly examining the underlying cultural aspects and their relevance in a given society. For example, in Western Europe it can almost be regarded as a cultural axiom that violence and crime are illegitimate, whereas in Albania and other parts of the Balkan region this might not be the case. The main aim of this doctoral research is defining the concepts of violence and crime in an ethnic Albanian context. In the past ten years this particular ethnic group has been attracting the international attention at great scale as a result of their constant violent criminal evolution, both in terms of organization as well as dispersion of criminal activities outside their country of origin. Many international organizations claim that certain criminal segments of this particular ethnic group are posing serious threat to the integrated system of the European Union, as well as to the development of the Balkan countries. This multidisciplinary research intends to acknowledge a number of different dimensions in which the criminal and violent behavior of the ethnic Albanians can be understood. Yet the main focus will be analysis of the effects of one of these dimensions, being the culture of the ethnic Albanians. The fact that the violent ethnic Albanian organized crimes groups represent a foreign culture that is difficult to understand is an obstacle in drawing inferences about the criminal organizations and their future actions. This analysis will both discuss the potential influences of some ‘threatening’ cultural factors such as the Albanian Code of Honour and the Kanun Laws in understanding the ethnic Albanian culture of violence as well as the possible interactions of these factors with factors from other dimensions. The goal of the research is to summarize the findings in a consistent model describing the experienced mechanisms within and among the above-mentioned dimensions.
  Jana Arsovska has completed her research at the Institute of Criminal Law. She has taken up a position as a professor at John Jay College of Criminal Justice, City University of New York. For more information, click here.

• Ann Bailleux
  Self-determination in the criminal procedure: pushing back paternalism to reach a more fair and efficient criminal procedure? (supervisor: prof. dr. R. Verstraeten; co-supervisor: prof. dr. F. Verbruggen)
  The Belgian criminal procedure code is up for renewal. Written for the 19^th century society, where literacy was exceptional, the legislator opted for a predominantly inquisitorial system which would protect the citizen against the governing bodies and himself. The attitude towards parties to the proceedings was rather patronizing. Especially in the pretrial stage, little or no autonomy was granted to the individual. This vision on society is outdated. Moreover, many superfluous and complex procedural rules result in heavy and inefficient criminal proceedings which cannot be finalised within a reasonable timeframe. Finally, the European Court of Human Rights introduces more and more frequently emphasis of an accusatory nature in our predominantly inquisitorial procedure. Assuming that a new Belgian criminal procedure code is required, the research will study whether the inclusion of more self-determination by the parties to criminal proceedings could make the procedure fairer and more efficient. After having researched the element of “fairness” in light of the theories on procedural justice and human dignity, we shall ascertain where, within a new procedure, the balance between paternalism and autonomy should be and shall make specific suggestions for the content of a new code.

• Fanny Coudert
  The purpose specification principle in the Area of Freedom, Security and Justice: towards renewed data protection principles for information-based practices in the field of Security
  The regulation of data protection aspects of European Security related databases and agencies has been carried out so far by the European Council on an ad hoc basis due to the lack of general data protection framework in the AFSJ, contrary to the situation in the First Pillar where Directive 95/46/EC has harmonised data protection provisions. Ad hoc data protection regimes established under the Third Pillar, such as the one regulating data processing activities of Europol, were also motivated by the specificities of data processing activities with Security purposes that has justified so far ‘a tailored-made set of (data protection) rules’. The Lisbon Treaty provides for the possibility to adopt a comprehensive data protection framework that would overcome the division into Pillars. To that end, the European Commission however identifies the need to restate a number of basic data protection principles in the AFSJ: the purpose specification principle, the principle of proportionality and legitimacy of the processing, information adequacy, security and confidentiality, respect for the rights of the individual and control by an independent authority. Traditional data protection principles are indeed often shown as failing to provide a satisfying countervailing power to a new generation of technologies characterised by their interconnectivity, invisibility and pervasiveness: in most cases, individuals are not even aware that they are being watched or that their data are being re-used for a completely different purpose than the one for which they were collected.
  This dissertation will focus on the purpose specification principle, often presented as cornerstone of data protection laws. This dissertation will focus on the way how the efficiency of the purpose specification principle in the Area of Freedom, Security and Justice can be restored. Security is changing focus from reaction to events to risk prevention, based on the use of pro-active surveillance technologies that rely on mass databases and powerful data mining tools. This shift in the technological and methodological paradigm raises new concerns in terms of fundamental rights. It thus appears necessary to carry out an in-depth analysis of the current challenges faced by the purpose specification principle in order to identify the elements that should be taken into account to ensure an efficient protection of citizens and to restore an adequate framework of protection that provides legitimacy to such systems.
   
• Stef De Decker
  Investigative measures in the sentencing and enforcement phase of criminal procedure
  The clear watershed between the phases before criminal conviction and after, made it possible to maintain separate regimes as to the rights, powers and judicial protection.
  This classical – dogmatically and politically convenient ­– status quo has been altered for several reasons: human rights have explicitly been extended to the enforcement of sanctions; authorities are less likely to acquiesce when a convicted person goes into hiding until statutes of limitations are reached; and authorities are aware they should keep a close eye on “dangerous” convicted persons, throughout the enforcement and afterwards.
  A new balance has to be found. The research wants to establish general principles for a legal framework for intrusive investigative methods in the sentencing and enforcement phases, in view of the rules on similar methods used in the phase before conviction. It will try to establish whether a far-reaching integration of the different regimes is possible and, if so, desirable.

• Vanessa Franssen
  PhD in European corporate criminal law
  European Sentencing Principles for Corporations (Europese straftoemetingsbeginselen voor ondernemingen)
  The EU is strengthening its grip on national criminal law to fight corporate crime and the punishment of corporations features prominently among its concerns. Yet its policy seems unlikely to obtain pan-European results, if sentencing rules are to remain an exclusive member state policy. Europe must therefore agree on common principles which will promote consistency in sentencing throughout Europe. Strikingly, a thorough analysis of sentencing issues regarding corporations is lacking in most of the existing literature in (continental) Europe. Therefore, the PhD research project proposes an in-depth analysis of sentencing issues concerning corporations, with a clear purpose to elaborate common European sentencing principles for corporations.

• Lore Gyselaers
  Lay participation in the judicial function in criminal matters. A Comparative Study of French, English and Belgian law
  The participation of ordinary citizens in criminal justice is based on a strong and ancient tradition, it stems from a common, albeit discontinuous tradition shared by many European nations. Some countries consider it to be a crucial feature of their criminal justice system and a fundamental guarantee for the accused. However, in all countries where it persists or has been revived, it is the centre of fierce discussions. It attracts both criticism and praise; it raises hopes and causes disappointments. Its partisans stress that it provides democratisation and proximity of justice, while its opponents insist on the need to trade the influence of ordinary citizens for greater professionalism. Even if it is not a universally accepted solution, the idea of citizen’s participation in the function to judge in penal matter seems quite resilient. A comparative literature study reveals the different faces of such participation, however: popular jury, aldermen, assessors, proximity judges, and justices of the peace... From a procedural point of view, these different structures also entail different extents of lay participation, different justification strategies and extremely variable modalities. A comparison between English law, French law and Belgian law illustrates these remarkable variations and shows that we have reached a crossroads of criminal policy, which forces us to reflect on the future of citizen participation.

• Katrien Hanoulle
  Judging the sanity of the mentally disordered offender
  The debate on the criminal responsibility of and the sanctions for the mentally disordered offender has been vivid during the movements of the Social Defense and the New Social Defense, but is even now very much alive. The problem has always exceeded mere criminal law.
  Jurists have been skeptical towards psychiatry ever since the 19th century, but nevertheless eagerly make use of psychiatric expertise in criminal cases involving a mentally disordered offender. However, psychiatrists cannot deliver ready-made answers for this legal issue of sanity. Moreover, insights from neuroscience concerning the existence of free will challenge classic criminal law, which renders the relation between law and science even more difficult.
  Furthermore, underlying mechanisms are involved when judging the sanity of a mentally disordered offender. A judgment represents in particular the desired sanction, some procedural aspects and the increasing attention for the victim.
  The goal of the doctoral research is analysing and evaluating this regime from the point of view of the human rights and the purposes of criminal law. The Dutch and American regimes are being used as sources of comparison. The final goal is putting forward some propositions which can adjust the Belgian regime.

• Joost Huysmans
  Use and abuse of the defense rights in criminal procedures
  This research-project will address the issue of abuse by the defence of its procedural rights during a criminal trial, mainly in Belgian law, but also in US federal criminal procedure and European competition law. It will examine whether the notion of abuse of defence rights in criminal procedures is compatible with the specific functions of the rights of the defence in criminal trials. Moreover, it will also describe the minimum requirements that the right to a fair trial imposes on the procedural rights of the defence during criminal procedures and it will scrutinize whether these minimum requirements leave room for certain types of sanctions on the misconduct of the defence or its counsel during a criminal trial. Finally, it will also assess whether it is opportune and process-economically efficient to impose sanctions on certain types of behaviour of the defence or its counsel.

• Eef Vandebroek
  Prepares a PhD in international criminal law
  Investigating and punishing staff corruption at the UN & UN System
  Corruption is a widespread and pervasive phenomenon that is a potential danger for every institution, even those dedicated to fight it. We may assume that, due to its function, structure and international character, the United Nations is one of those organizations suffering from corrupt behaviour. Whereas the UN actively promotes ‘good governance’ and ‘transparency and accountability’ in its Member States, surprisingly enough, it does not seem to apply the same principles within its own administration. The large numbers of UN staff and its multicultural nature, however, call for a very specific approach when it comes to anti-corruption measures. The PhD research will probe the criminal law aspects – both substantial and procedural – of such an approach and aspires to compose a legal toolbox designed to meet the particular problems related to investigating, prosecuting and finally punishing corruption among UN Officials. Throughout the entire study, lessons learned from EU initiatives against staff corruption and emerging international criminal law will serve as a source of inspiration; the standards which the UN applies to others being a constant bench-mark.

• Bart Vangeebergen
  Intelligence services and their role in criminal investigations and proceedings.
  A comparative study of the state of affairs in Belgium , the Netherlands , Germany and the United Kingdom.
  Since the 9-11 attacks there has been an increasing attention for the role of intelligence services in the fight against terrorism. For some European countries however, an intensified cooperation between intelligence services and the police poses difficulties because of their organizational and functional separation. This dissertation analyses the role of the intelligence services in Belgium , the Netherlands , Germany and the United Kingdom in criminal investigations and proceedings. More specifically, it will focus on the possibility of sharing and subsequently using information originating from an intelligence service by either the police or the crown prosecution. After a comprehensive study of the organization and functioning of the intelligence services in each of these countries, the legal possibilities for intelligence services to share information with the police are examined. Once it is clear which information can be shared under which conditions, the dissertation will analyze how this information can be used. To that end a distinction will be made between three categories corresponding with the three main possible uses of such information; to start or (re)direct an investigation; to found the use of coercive measures; or to serve as proof before a court of justice. Throughout the analysis of the regulations in each of the discussed countries, the necessity and desirability of these regulations are examined within the framework of the European Human Rights Convention.

• Jan Vanheule
  (De rechtsfiguur van de strafbare deelneming in het Belgisch strafrecht)
  The public defense of this thesis took place on December 14, 2009. This research was published in 2010: VANHEULE, J., "Strafbare deelneming", Intersentia, 2010.

Research projects

• Tom Daems
  Postdoctoral research project FWO 2008-2011
  A new European penology? Constructing and safeguarding a European penal identity in a time of change
  In this postdoctoral research project we aim to investigate the place and role of the Council of Europe with respect to constructing and safeguarding a European penal identity in a time that it is being confronted with a series of various challenges. In doing so, the project aims to contribute to discussions in international penology focusing on how we can better understand recent penal developments – in particular the role of international and supranational influences on penal policy. In the project we focus on a study of available literature and documents, and interviews with key-actors in this area.

• Stef De Decker
  FWO Research project: Investigative measures in the sentencing and enforcement phase of criminal procedure
  Life used to be simple. Criminal procedure law regulated powers and procedures until the judicial decision by which the defendant had been convicted to a criminal sanction, became definitive. The clear watershed between the phases before criminal conviction and the one following it, made it possible to maintain separate regimes as to the rights, powers and judicial protection. The goal (or different goals) of the enforcement of the criminal sanctions differs from the goal(s) of sentencing and definitely from the goals of investigation and instruction before conviction. Several forms of protection from government and from outsiders cease to exist from the moment a person has been found guilty. Conviction entails both explicit and implicit loss of numerous freedoms and rights.
  This classical – dogmatically and politically convenient – status quo has been altered for several reasons. First and foremost, human rights have explicitly been extended to the enforcement of sanctions. A second important evolution is that police and Prosecution Service are less likely to acquiesce when a person convicted to a prison term goes into hiding until statutes of limitations are reached. Finally, it is undeniable that awareness has grown that the authorities should keep an eye on a category of “dangerous” convicted persons, throughout the enforcement and afterwards, because they constitute a continuous risk to society.
  A new balance has to be found. The research wants to establish general principles for a legal framework for intrusive investigative methods in the sentencing and enforcement phases of criminal procedure, in view of the rules on similar methods used in the phase before conviction. It will try to establish whether a far-reaching integration of the different regimes is possible and, if so, desirable.

• Ken Van hoogenbemt
  (FWO-Onderzoeksproject “De handhaving van het ordeningsstrafrecht. Een rechtsvergelijkend en empirisch onderzoek”)

• Frank Verbruggen and Ann Dierickx
  Project: Intramural medicine - health welfare between mandate to heal and execution of sentences in the international discourse
  The project deals with the struggles on the European and the international level to find for acceptable legal norms to protect the human dignity in the penitentiary system with special consideration of the medical care provided to inmates.
  A comparative, interdisciplinary study (criminal law, medical law and administrative practice) will be the basis for general conclusions on law and policy.
  It will deal with the place and role of physicians in the execution of sentences, the medical supply in the execution of sentences, informed consent to medical treatment, doctor's duty of confidentiality in the execution of sentences, psychological patients in the execution of sentences, the medical supply in the penal system for women, risks of infection and addiction in the execution of sentences, compulsory treatment in the execution of sentences and the criminal risks of the institute physician.
  In June 2007 an international symposium will be held in Zürich. The project is coordinated by the University of Zürich (Switzerland) and the University of Heidelberg (Germany).
  Start: 2006
  End: June 2007
  Sponsor: European Academy of Sciences and Arts
  
  DIERICKX, A., VANDESTEENE, A., VAN MOL, F. en VERBRUGGEN, F., "Blood, sweat and ... hope. The provision of medical services in the Belgian prison system", Springer, 2008. Click here for Lirias.

• Frank Verbruggen and Stef De Decker
  Project: Rights of the Defence in the EU (Belgium)
  The context for this project is the increasingly proactive nature of EU activity in matters of criminal justice, concerning both transborder crime and domestic provisions. As a result of increased transnational cooperation in criminal matters, suspects and accused persons will be more and more the subject of investigative and prosecutorial acts outside their own country and there will be a growing need for transnational legal assistance. In this, mutual trust and recognition are the keywords, the guarantees on which co-operation is based.
  The objective of this research study is to examine the nature of the legal protections provided to suspects in a range of EU countries, from both a theoretical and practice-based perspective. Knowledge of criminal defence provision across Europe is patchy and the accounts that exist often differ widely from practice. Through the establishment of a co-ordinated international research group, this study aims to provide a more contextual understanding of the criminal defence role across different European jurisdictions, considering the legal and procedural rules in place and the implications which the pre-trial stage process has for the trial stage. The blending of practising lawyers and academics should foster a balanced and stimulating discussion on European common principles of criminal procedures.
  The project is coordinated by the University of Maastricht (The Netherlands) Others contributors come from University of the West of England (UK), University of Warwick (UK), University of Bologna (Italy), University of Warsaw (Poland), Democritus University of Trace (Greece), University of Lund (Sweden) and University of Cologne (Germany)
  Start: 2005
  Sponsor: EU
  
  FERMON, J., VERBRUGGEN, F. and DE DECKER, S., "The Investigative Stage of the Criminal Process in Belgium" in: E. CAPE, J. HODGSON, E. PRAKKEN and T. SPRONKEN, Suspects in Europe. Procedural Rights at the Investigative Stage of the Criminal Process in the European Union, Antwerpen, Intersentia, 2007, 29-58.

• Raf Verstraeten and Lore Gyselaers
  Commission for reform of the procedure in criminal cases
  Minister of Justice L. Onkelinx has instituted a Commission with the intention of elaborating a preparatory study in order to reform the criminal procedure before the Assizes Court. Professor Benoît Frydman (U.L.B.) and professor Raf Verstraeten (K.U.L.) are presiding the commission, that consists of 12 members, representing on the one hand the different sections of the judicial organisation, the Bar, the victim services, and on the other hand citizens who experienced the criminal procedure either as a victim or as a juror. After the intermediary report – March 2005 – on behalf of the Department of Justice, the Commission is to establish the final report and the proposition of law by the end of October.

Unpublished documents

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