LEGAL FRAMEWORK
To alleviate the problem of rising traffic cases and the capacity pressure on the Police Courts, the “order to pay” procedure under Article 65/1 of the Road Traffic Regulations has been in effect since June 1, 2017.
Previously, offenders who did not pay their amicable settlement were summoned to the Police Court. In case of conviction could be executed based on the interlocutory judgment.
The introduction of the order to pay created an easier way for the prosecutor to obtain an enforceable title in case of non-payment of amicable settlements.
In case an order for payment is issued by the public prosecutor, the sum of money applicable to this offense shall be increased by 35% and, if applicable, the contribution to the Victims’ Fund.
The violator is then given 30 days following the day of receipt of the order to make payment. After this date, the order is final. In short, an enforceable title can be obtained without the intervention of the Police Court.
If the offender does not agree with the foregoing, he may appeal it to the Police Court. The law prescribes that the order to pay is considered non-existent in case of an admissible appeal.
PROCEEDINGS: AMBIGUITY OVER POLICE COURT JURISDICTION
Lawtree has recently successfully handled a number of cases along these lines before the Antwerp Police Court.
For some time there has been ambiguity about the jurisdiction of the Police Courts in such cases.
The law prescribes that it only has the authority to rule on the admissibility of the appeal. Admissibility refers to the fulfillment of formal conditions such as the applicant’s details, the reason for filing the petition, the system number, …
On the other hand, the parliamentary preparation shows that in such cases the Police Court should hear the case on the merits. Specifically, this means that if the facts are proven, the Police Court could impose a (different) effective sentence.
Also in the cases our office handled, the Police Court initially cited that the admissibility of the case had to be adjudicated in accordance with the Road Traffic Regulations.
It was further correctly stated that bringing a criminal case before the Police Court belongs to the prosecution.
Otherwise, by filing an appeal, the appellant would be bringing a criminal action against himself. He would then have exposed himself to criminal sanctions. This can obviously not be the intention!
Therefore, the Police Court correctly ruled that it was only necessary to rule on the admissibility of the case.
In our files, the appeal was declared admissible and the order to pay was deemed nonexistent. Specifically, based on the order to pay that was issued, our clients will not be able to be punished for their violation.
The Antwerp Court of First Instance, Antwerp Division ruled similarly in degree of appeal.
DECISION
In summary, both Courts held that in such cases they are not authorized to pronounce penalties for the offense. They are only authorized to check whether the formal conditions of the appeal are met. In the affirmative case, the order to pay is considered non-existent.
In theory, the prosecution could proceed to issue a subpoena following an admissible appeal against such an order to pay. In practice, however, this does not seem to occur (often).
When you receive an order to pay, it is always advisable to contact an attorney to see if this can be successfully appealed to the Police Court.
Please do not hesitate to contact our office if you have further questions about this or wish to appeal a payment order.
