Fighting Domestic Violence: Bel gium 1

Belgium

1 Legal provisions

1.1 What are the relevant statutes and codes?

The most relevant regulations on domestic violence in Belgium are as follows:

Relevant provisions of the Belgian Criminal Code include1

Relevant provisions Content/scope/outline

Article 327 of the Anyone who, either verbally or in writing, anonymously or

Criminal Code signed, with order or under conditions, threatens with an attack against people or property, punishable by a criminal penalty, will be punished by imprisonment of six months to five years and a fine of EURO 100 to EUR 500. The anonymous or signed threat in writing of an attack against people or property punishable by a criminal penalty, not accompanied by an order or condition, will be punished by imprisonment from three months to two years and a fine of EUR 50 to EUR 300.

Article 329 of the Criminal The threat by gestures or emblems of an attack on persons or Code (threat) property, punishable as a criminal offense, will be punishable by imprisonment from eight days to three months and a fine of EUR 26 to EUR 100.

Article 330 of the Criminal The threat, either made verbally or in writing, anonymously or Code (threat) signed, with an order or condition, of an attack on persons or property, punishable by imprisonment for a term of at least three months, will be punishable by imprisonment for eight days to three months and a fine of EUR 26 to EUR 100.

Article 348 of the Criminal Whoever, a doctor or not, by any means whatsoever, Code (forced abortion) deliberately causes an abortion in a woman who has not consented to it, will be punished by imprisonment from five to 10 years. If the means used have failed to achieve their effect, Article 52 will be applied [according to which the attempted crime is punished with a penalty immediately lower than the one for the crime itself].

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Relevant provisions Content/scope/outline

Article 349 of the Criminal When the abortion was caused by violence exercised Code (abortion caused voluntarily, but without intention to produce it, the perpetrator by violence) will be punished with imprisonment from three months to two years and a fine of EUR 26 to EUR 300. If the violence was committed with premeditation or with knowledge of the woman's condition, imprisonment will be from six months to three years, and the fine will be from EUR 50 to EUR 500.

Article 371/1 of the Belgian Whoever has: Criminal Code (voyeurism) 1. observed or caused to be observed a person, or made or caused to be made a visual or audio recording of a person: (i) directly or by technical or other means; (ii) without that person's authorization or without his or her knowledge; (iii) while the person was nude or engaged in explicit sexual activity; and (iv) in circumstances in which the person could reasonably be expected not to invade his or her privacy 2. showed, made accessible or disseminated images or the visual or audio recording of a person who is nude or engaged in explicit sexual activity, without his or her consent or without his or her knowledge, even if that person has consented to their production will be punished by imprisonment from six months to five years. The sentence is 10 to 15 years of imprisonment if the victim was under 16. There is an irrefragable presumption of absence of consent for victims under 18.

Article 372 of the Criminal Any indecent assault committed without violence or threats Code (indecent assault against the person or with the help of a child of either sex, without violence or threats) under the age of 16, will be punishable by imprisonment from five to 10 years. An indecent assault committed without violence or threats by any ascendant or adopter on the person or with the help of a minor, even if the minor is older than 16 years old, will be punishable by imprisonment for 10 to 15 years. The same penalty will be applied if the offender is the brother or sister of the minor victim or any person occupying a similar position within the family, or any person habitually or occasionally cohabiting with him or her and having authority over the victim.

Article 373 of the Criminal Indecent assault committed on people or with the help of Code (indecent assault with people of one or the other sex, with violence, constraint, threat, violence or threat) surprise or ruse, or which was made possible by reason of an infirmity or physical or mental deficiency of the victim, will be punishable with imprisonment for six months to five years. If the attack was committed on a person [or with the aid of a person] over the age of 16, the penalty will be imprisonment (for five to 10 years). The penalty will be (imprisonment) for 10 to 15 years, if the minor was less than 16 years old.

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Relevant provisions Content/scope/outline

Article 375 of the Criminal Any act of sexual penetration, of any nature and by any means Code (rape) whatsoever, committed on a person who does not consent, constitutes the crime of rape. Consent does not exist, in particular, when the act has been imposed by violence, coercion, threat, surprise or deception, or has been made possible by the physical or mental infirmity or disability of the victim.

Article 376 of the Criminal If the rape or indecent assault caused the death of the person Code (rape causing death) who it was committed on, the perpetrator will be punished with imprisonment for 20 to 30 years. (If the rape or indecent assault was preceded or accompanied by the acts referred to in Article 417-ter, paragraph 1 [torture], or of sequestration, the perpetrator will be punished by imprisonment for 15 to 20 years.) If the rape or indecent assault was committed on a person [whose situation of vulnerability due to age, pregnancy, illness, disability or a physical or mental deficiency was apparent or known to the perpetrator], either under the threat of a weapon or an object that resembles it, the perpetrator will be punished with imprisonment for 10 to 15 years.

Article 391-bis of the Criminal A person will be punished by imprisonment for eight days to six Code (nonpayment of months and a fine of EUR 50 to EUR 500, or by one of these alimony/maintenance) penalties only, without prejudice, if necessary, to the application of more severe criminal sanctions, who, having been sentenced by a judicial decision to provide alimony to his spouse, his descendants or his ascendants, has voluntarily remained for more than two months without paying the alimony.

Article 391-sexies of Anyone who, by violence or threats, forces someone to enter the Criminal Code into marriage will be punished by imprisonment for three (forced marriage) months to five years and a fine of EUR 250 to EUR 5,000.

Article 393 of the Criminal Homicide committed with intent to cause death is qualified as Code (murder) murder. It will be punished by imprisonment for 20 to 30 years.

Article 394 of the Criminal Premeditated murder qualifies as assassination. It will be Code (assassination) punished by life imprisonment.

Article 397 of the Criminal Poisoning is defined as murder committed by means of Code (poisoning) substances that can cause death more or less promptly, in any manner in which such substances are used or administered. It will be punished by life imprisonment.

Article 398 of the Criminal Anyone who willfully assaults will be punished with Code (assault and battery) imprisonment for eight days to six months and a fine of EUR 26 to EUR 100, or with one of these penalties only.

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Relevant provisions Content/scope/outline

Article 399 of the If the assault or injury caused personal illness or incapacity to Criminal Code work, the perpetrator will be punished with imprisonment for two months to two years and a fine of EUR 50 to EUR 200.

Article 401 of the Criminal Where the assault or battery, done voluntarily, but without Code (assault and battery intent to cause death, has nevertheless caused it, the causing death) perpetrator will be punished by imprisonment for five to 10 years. The perpetrator will be punished by imprisonment for 10 to 15 years, if he has committed these acts of violence with premeditation.

Article 402 of the Criminal Whoever has caused to another person personal illness or Code (poisoning incapacity to work by giving voluntarily, without intent to kill, impairing health) substances that may cause death, or substances that, without being of such a nature as to cause death, may nevertheless seriously impair health, will be punished with imprisonment for three months to five years and a fine of EUR 50 to EUR 500.

Article 403 of the Criminal The penalty will be imprisonment from five to 10 years, when Code (poisoning with these substances have caused either an illness that appears incurable illness) incurable, or personal incapacity to work for more than four months or the loss of the absolute use of an organ.

Article 404 of the Criminal If the substances administered voluntarily, but without intent to Code (poisoning with death) cause death, nevertheless caused it, the perpetrator will be punished by imprisonment for 15 to 20 years.

Article 409 of the Criminal Anyone who has practiced, facilitated or promoted any form of Code (genital mutilation) mutilation of the genital organs of a female person, with or without her consent, will be punished by imprisonment for a term of three to five years. An attempt of genital mutilation will be punished by imprisonment for a term of eight days to one year. The same penalty as an attempt will be imposed on anyone who incites the practice of any form of mutilation of the genital organs of a female person or has, directly or indirectly, in writing or verbally, made, caused, published, distributed or disseminated publicity in favor of such a practice. If the mutilation is practiced on a minor or for profit, the penalty will be imprisonment for five to seven years. When the mutilation has caused a seemingly incurable illness or a personal incapacity for work of more than four months, the penalty will be imprisonment for five to 10 years. When mutilation is carried out without intention to kill but, nevertheless, causes it, the penalty will be imprisonment for 10 to 15 years. If the mutilation was carried out on a minor or a person who, because of his or her physical or mental state, was not able to

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Relevant provisions Content/scope/outline provide for his or her maintenance, by his or her father, mother or other ascendants, any other person having authority over the minor or the incapable person or having custody, or any person who cohabits occasionally or habitually with the victim, the minimum of the penalties given above will be doubled in the case of imprisonment, and increased by two years in the case of seclusion.

Article 410 of the In the cases mentioned in Articles 398 to 405 of the Criminal Criminal Code Code, if the perpetrator has committed the crime or the offense against his or her father and mother or other ascendants [in direct line or collateral up to the fourth degree], the minimum penalty carried by these articles will be doubled in the case of imprisonment, and increased by two years in the case of seclusion. The same will apply if the perpetrator has committed the crime or the offense against his or her spouse or the person with whom he or she cohabits or has cohabited and maintains or has maintained a lasting emotional and sexual relationship. (In addition, in the case referred to in Article 398, paragraph 1, the maximum penalty is increased to one year's imprisonment.)

Article 417-bis of the Criminal 1. Torture: any deliberate inhuman treatment that causes Code (defining torture, severe pain or very severe and cruel suffering, whether inhuman treatment and physical or mental. degrading treatment) 2. Inhuman treatment: any treatment by which severe mental or physical suffering is intentionally inflicted on a person, in particular for the purpose of obtaining information or a confession from that person, punishing him or her, putting pressure on him or her or intimidating that person or third parties. 3. Degrading treatment: any treatment that causes serious humiliation or degradation to a person who is subjected to it, in the eyes of another person or in his or her own eyes.

Article 417-ter of the Criminal Anyone who subjects a person to torture will be punished by Code (torture) imprisonment for 10 to 15 years. Torture will be punished by 20 to 30 years of imprisonment: 1. When it has been committed against a minor or against a person who, because of his or her physical or mental condition, was unable to provide for his/her maintenance, by his/her father, mother or other ascendants, any other person having authority over him/her or having custody of him/her, or any person of full age who occasionally or habitually cohabits with the victim. 2. When it has caused death and it was committed without intent to cause it.

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Relevant provisions Content/scope/outline

Article 417-quater of the Anyone who subjects a person to inhuman treatment will be Criminal Code punished with imprisonment for five to 10 years. A person will (inhuman treatment) be punished with imprisonment for 20 to 30 years either when: 1. it has been committed against a minor or against a person who, because of his or her physical or mental condition, was unable to provide for his/her maintenance, by his/her father, mother or other ascendants, any other person having authority over him/her or having custody of him/her, or any person of full age who occasionally or habitually cohabits with the victim 2. it has caused death and was committed without intent to cause it

Article 417-quinquies of the Anyone who subjects a person to degrading treatment will be Criminal Code punished with imprisonment for 15 days to two years and a fine (degrading treatment) of EUR 50 to EUR 300 or one of these penalties only.

Article 431 of the Criminal Those who, being in charge of a minor under 12 years of age, Code (nonrestitution of a do not present him/her to the persons entitled to claim him/her, child) will be punished with imprisonment for eight days to one year and a fine of EUR 26 to EUR 100, or only one of these penalties.

Article 432 of the Criminal The following will be punished by imprisonment for eight days Code (nonrestitution of a child to one year and a fine of EUR 26 to EUR 100, or by one of by the mother or father) these penalties only: the father or mother who removes or attempts to remove his or her minor child from the proceedings instituted against him or her under the legislation relating to youth protection or youth assistance, who removes or attempts to remove him or her from the custody of the persons to whom the competent authority has entrusted him or her, who does not represent him or her to those who have the right to claim him or her, who removes him or her or has him or her removed, even with his or her consent. If the perpetrator has been deprived of parental authority in whole or in part, imprisonment for up to three years may be imposed.

Article 448 of the Criminal Anyone who has insulted a person either with facts or with Code (insults) writings, images or emblems, will be punished by imprisonment for eight days to two months and a fine of EUR 26 to EUR 500, or by one of these penalties only.

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Relevant provisions of the Belgian Civil Code2

Relevant provisions Content/scope/outline

Article 223 of the Belgian This article authorizes the family court to take urgent measures Civil Code if one of the spouses is in serious breach of his or her duties or if the agreement between spouses is seriously disturbed. If one of the spouses seriously fails in their duties, the Family Court orders, at the spouse's request, urgent measures in accordance with articles [1253-ter/4 to 1253-ter/6] of the Judicial Code. It is the same at the request of one of the spouses, if the agreement between them is seriously disturbed.

Article 374 of the Civil Code This article refers to the interests of the child being taken into (interests of the child) consideration by the judge when deciding on the granting of parental authority and the organization of access rights. The court decides, "taking into account the concrete circumstances of the case and the interests of the children and parents."

Article 1479 of the Civil Code This article authorizes the family court to take urgent measures if the harmony between the legal cohabitants is seriously disturbed. It provides: If the harmony between the legal cohabitants is seriously disturbed, the Family Court orders, at the request of one of the parties, urgent measures similar to those provided for in articles 1253-ter/5 and 1253-ter/6 of the Judicial Code. The Court fixes the period of validity of the measures it orders. In any event, these measures cease to produce their effects on the date of the termination of legal cohabitation, as provided for in Article 1476, § 2, paragraph 6, of the Civil Code, unless these measures concern the common children of legal cohabitants. After the termination of legal cohabitation, and provided that the request has been made within three months of this cessation, the Court orders the urgent and provisional measures justified by this cessation. It fixes the period of validity of the measures it orders. The court orders these measures in accordance with Articles 1253-ter to 1253-octies of the Judicial Code.

Article 1382 of the Civil Code This article provides for compensation, provided a fault, (civil liability) prejudice and causation have been demonstrated.

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Relevant provisions of the Belgian Judicial Code ("Judicial Code") regarding urgent and te mporary me asures3

Relevant provisions Content/scope/outline

Articles 1253-ter to 1253- These provisions cover urgent and temporary measures that octies of the Judicial Code can be decided by the family court, including measures relating to residence and parental authority, among others: Article 1280 of the Judicial Code . to order or modify any provision relating to parental authority, accommodation and the right to personal relations . to fix, modify or cancel support payments . to fix the separate residences of the spouses and legal cohabitants, etc.

Relevant Belgian federal acts4

Relevant provisions Content/scope/outline

Act of 1 August 1985 The commission established by the act may grant, under establishing the Commission certain conditions, financial aid to victims of intentional for Financial Aid to Victims of violence, as well as their relatives, for example, if the Intentional Acts of Violence perpetrator is unknown or proves to be insolvent. and the conditions under which the commission may grant aid

Royal Decree of 9 March This royal decree contains a policy statement against sexual 1995 organizing the protection harassment in the workplace. It provides for the establishment of staff members against in each department of a "trust service," composed of staff sexual harassment in the members, whose role is to provide for advice and help to workplace in the resolve the issue raised. It also provides that any act of administration and other sexual harassment in the workplace may give rise to services of federal disciplinary proceedings. departments as well as in some public interest organizations

Act of 27 March 1995 This act deals with the prohibition of advertising for sexual inserting Article 380-quinquies services with a direct or indirect profit-making aim toward into the Criminal Code and minors or prostitution. repealing its Article 380- quater, paragraph 2 (current Article 380-ter of the Criminal Code)

Act of 13 April 1995 on sexual According to this act, the limitation period begins to run from abuse of minors the day the victim turns 18. This applies to "any person who has offended against morals by exciting, promoting or facilitating, (...) the prostitution of a minor of either sex."

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Relevant provisions Content/scope/outline This law also sets out the right of minors to be accompanied at the hearing, reinforces the obligation of notification, modifies the penalties and binds the enforcement of the freedom of a convicted person for such acts to an obligation of accompaniment or treatment. This law also provides for the "correctionalization" of the crime of rape, which allows the criminal judge to rule on the case. This is quicker and protects the minor victim from a painful case before the court of assize (jury trial).

Act of 4 August 1996 on the This act devotes a specific chapter to violence and moral or well-being of workers in the sexual harassment at work, which contains a definition of performance of their work, as punishable behaviors and the obligations of employers to supplemented by a royal prevent or act against such behaviors. Sexual harassment in decree of 17 May 2007 on the the workplace is defined as "any unwanted verbal, nonverbal or prevention of the psychosocial physical conduct with a sexual connotation that has the burden caused by work, purpose or effect of violating the dignity of a person or of including violence, stress, creating an intimidating, hostile, degrading, humiliating or moral and sexual harassment offensive environment." The employer must pay attention to violent and harassing behavior, and all other situations that create a psychosocial burden (such as stress, conflicts, etc.).

Act of 24 November 1997 This act provides (Article 410 of the Criminal Code) for aimed at combating violence aggravating circumstances in cases of physical violence within the couple amending between the couple. The law also applies to former partners. article 410 of the The law extends the possibility to undertake, as quickly as Criminal Code possible, the legal steps to physically remove the perpetrator of physical violence from the victim, to arrest him/her and to be able to proceed with the formal declaration of the facts when the victim requests it.

Act of 30 October 1998 These acts introduce the concepts of psychological violence inserted Article 442-bis in the and harassment into the Criminal Code (Article 442-bis). The Criminal Code in order to law punishes harassment with a prison sentence of 15 days to incriminate the harassment — two years and a fine of EUR 50 to EUR 300 or one of article modified by the law of these penalties. 25 March 2016 and Act of 25 March 2016 amending article 442-bis of the Criminal Code

Act of 23 November 1998 Act establishing legal cohabitation and notably giving the power establishing the regime of to the justice of the peace to order urgent and provisional legal cohabitation measures if the cohabitation between the legal cohabitants is seriously disrupted. Urgent and provisional measures may also be ordered on an ex-cohabitant (maximum one year after termination).

Act of 28 January 2003 on the This act provides for an increase in the aggravating allocation of family housing to circumstances contained in Article 410 of the Criminal Code, by a spouse or legal cohabitant increasing the maximum sentence to one year in prison. This who is a victim of physical allows the judge in case of assault and battery and (attempted)

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Relevant provisions Content/scope/outline violence by his or her partner poisoning, to apply preventive detention or to issue an arrest and supplementing Article 410 warrant, the perpetrator may be removed from the conjugal of the Criminal Code ("Act of home. The act also provides that in the event of (attempted) 28 January 2003") assault and battery in the context of a temporary separation of spouses or legal cohabitants, or divorce, the justice of the peace grants the enjoyment of the common residence to the victim.

Act of 13 June 2005 on This act penalizes three incriminations: electronic communications — 1. The use of an electronic communications network or harassment by means of communication service or other means of electronic communications in order to annoy the other party or to cause annoyances, nuisance or prejudice (one occurrence is sufficient, repetition of the act is not required compared to general harassment provision) 2. installation by any person of a device intended to commit the offense of "phone" harassment 3. attempted "phone" harassment

Act of 17 May 2006 on the This act provides the victims with the following rights: 1) to be External Legal Status of informed of decisions on the granting of a sentence to the Persons Sentenced to convicted person; 2) to formulate special conditions that could Imprisonment and the Rights be imposed on the convicted person; and 3) be heard by the of the Victim court in relation to particular conditions of the sentence.

Act of 25 April 2007, inserting The act introduces the following article into the Civil code: Article 391-sexies into the There is no legal cohabitation when, although the will of Criminal Code and amending the parties to cohabit legally has been expressed, it certain provisions of the Civil appears from a combination of circumstances that the Code to criminalize and intention of at least one of the parties is clearly aimed expand the means to annul solely at obtaining an advantage in terms of residence, forced marriage, as amended linked to the status of legal cohabitant. by the Act of 2 June 2013 amending the Civil Code to The law also provides that the judge may declare the nullity of extended protection to marriage or legal cohabitation, in addition to pronouncing a cohabitation of convenience sentence. According to the new law, criminal penalties are and increasing the sanction increased: any person who, by violence or threats, will have for forced marriage or forced someone to enter into a marriage (Article 391-sexies) or marriage of convenience cohabitation (Article 391-septies) will be punished by imprisonment for three months to five years and a fine of EUR 250 to EUR 5,000 (the attempt: two months to three years or fine of EUR 125 to EUR 2,500).

Act of 26 November 2011 The act provides for aggravating circumstances for criminal amending the Criminal Code offenses committed against a person who is in a vulnerable to criminalize the abuse of a situation due to age, pregnancy or other circumstances. person's position of weakness and to extend the criminal protection of vulnerable persons against mistreatment

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Relevant provisions Content/scope/outline

Act of 10 May 2007 combating Act combating discrimination between women and men. discrimination between women and men ("Act of 10 May 2007")

Act of 23 February 2012 This act expands the list of offenses for which professionals amending Article 458-bis of under professional secrecy have a delimited and conditional the Criminal Code to extend right to speak in order to denounce to the prosecutor the acts of the exceptions to domestic violence. professional secrecy

Act of 15 May 2012 on the The act provides for the public prosecutor to order the temporary residence ban in temporary ban of a person from his or her residence, in the the event of domestic violence event of a serious and immediate threat to the safety of one or and the law of 15 June 2012 more persons under the same roof. The law targets violence to punish noncompliance with between partners but also acts of violence committed, for this ban, and amending example, on children. The person being banned will have to Articles 594 and 627 of the leave the common residence immediately and will be prohibited Judicial Code, as amended by from entering, stopping, being present and coming into contact the Act of 5 May 2019 with persons covered by the order. The ban/prohibition is valid for a maximum of 14 days. A hearing must be scheduled within this period. The family court will be able to lift the ban or extend it for a maximum of three months. Noncompliance with the ban order is penalized by criminal sanctions.

Act of 5 May 2014 amending This act makes punishable inciting the practice of any form of Article 409 of the Criminal mutilation of the genital organs of a female person or of having, Code criminalizing incitement directly or indirectly, in writing or orally made, caused to be to practice genital mutilation made, published, distributed or disseminated advertising for in women such a practice.

Act of 22 May 2014 tending to Sexism can be punishable by a prison sentence of one month combat sexism in the public to one year and a fine of EUR 50 to EUR 1,000 or one of these space and amending the Act penalties only. This act also penalizes any form of direct or of 10 May 2007 to combat indirect discrimination based on gender. discrimination between women and men

Act of 1 February 2016 The act amends the offenses of indecent assault and rape to amending various provisions ensure more consistency. It includes the notions of "constraint, on indecent assault surprise or trickery." Article 375 on rape specifies that "there is and voyeurism no consent, in particular when the act has been imposed by violence, coercion or deceit (...)." This presumption of lack of consent is irrefutable. The act also inserts the offense of voyeurism into the Criminal Code (Article 371/1). It is intended to punish the direct espionage or the recourse to any other technical means of a naked person, or engaging in an explicit sexual act while he or she is in circumstances where he or she can reasonably consider that his or her privacy will not be violated. Film and audio recording are both covered. This infraction also covers "revenge-porn." "Naked person" refers to a person who exhibits

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Relevant provisions Content/scope/outline a body part that, on the basis of current social norms and the collective consciousness of modesty, would have been kept covered if the person knew they were being spied on or filmed without their permission.

Act of 25 March 2016 Harassment is no longer an offense prosecuted upon amending Article 442-bis of complaint. This means that the public prosecutor can now the Criminal Code prosecute harassers without a complaint having been filed by the victim.

Act of 9 April 2017 on the This act implements Directive 2011/99/EU of the European European Protection Order Parliament and the Council of 13 December 2011 on the European Protection Order and the possibility to enforce a protective order (e.g., prohibition of contact with the perpetrator) in another EU member state for a victim of a criminal act that may endanger his/her life, physical or psychological integrity, dignity, personal liberty or sexual integrity.

Act of 18 June 2018 on the This act extends the possibility of lifting the professional fight against acts of violence secrecy provided for in Article 458-bis of the persons who are perpetrated in the name of victims of violence perpetrated in the name of culture, custom, culture, custom, religion, religion, tradition or so-called "honor." tradition or so-called "honor," including genital mutilation

Relevant ministerial directives and circulars5

Relevant text Content/scope/outline

Ministerial Directive of 15 The set consists of two sets: the packaged set contains September 2005 on the instructions and medical equipment for the doctor, instructions Sexual Assault Set for judges and recommendations for the police officer and information for of the Public Prosecutor's the victim. This set is aimed at: (i) standardizing the findings Office and police services relating to acts of rape or indecent assault; (ii) optimizing the data collection to identify the perpetrator; and (iii) limiting the psychological disruption caused by sexual assault and secondary victimization, providing the victim and their relatives with attention and assistance throughout the process.

Joint Circular 4/2006 of the The objectives of the circular are to: i) determine the guidelines Minister of Justice and the for the police; ii) develop a uniform system of identification and College of Public Prosecutors registration of violence in the couple by the police and the relating to the general criminal public prosecutor's office; iii) determine the minimum measures policy on domestic violence in to be applied in all the judicial districts of the country, and the couple, as revised on 12 stimulate specific local actions; and iv) provide the judiciary and October 2015 ("COL 4/2006") police with the tools and references that can support their action.

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Relevant text Content/scope/outline

Joint Circular 18/2012 This circular's main objectives is to: (i) identify the questions (revised version March 2020) and difficulties resulting from the inaccuracies or gaps of the from the Minister of Justice Act of 15 May 2012 on the temporary ban on residence in the and the College of event of domestic violence and provide answers to them; and Prosecutors General, (ii) standardize its application and specify the role of the regarding the temporary ban interveners (public prosecutor's office, police and victim on residence in case of reception service). domestic violence ("COL 18/2012")

Joint Circular 6/2017 of the The circular provides guidelines to the magistrate for the Minister of Justice and the conduct of their investigations, including the need to identify all College of Public Prosecutors the perpetrators, coauthors or accomplices involved; and the on the policy of investigation rules to be followed with regard to videotaped hearings. The and prosecution of honor- circular affirms the need to reserve a response to each file related violence, female when the investigation has established that such an offense genital mutilation and forced has been committed. legal marriages and cohabitations

Ministerial Circular of 29 May The circular implements a harassment alarm in the context of 2019 on the harassment violence between ex-partners. The harassment alarm is an alarm in the context of application that has been integrated into the app 112 and works violence between ex-partners with a portable button connected by Bluetooth to the victim's ("Circular of 29 May 2019") smartphone. When the victim is in imminent danger and presses the button, a call is made to the police CIC. This ministerial circular also aims to: . raise police officers' awareness to the phenomenon of harassment by an ex-partner and the consequences for the victim . ensure the correct management of the harassment alarm by the different police services . ensure the collection of all the information necessary to allow an effective police intervention

Relevant provisions at regional/community level

Relevant provisions Content/scope/outline

Decree of 27 April 2020 This decree partially modifies the decree of 7 January 2016 relating to the development of and notably establishes a monitoring committee on the the "women's rights" plan integration of the gender dimension in all the policies of the of the French- French Community. speaking community

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Relevant provisions Content/scope/outline

Decree of the French- This decree transposes Article 29 of the Directive 2006/54/EC Speaking Community of 7 of the European Parliament and of the Council of 5 July 2006 January 2016 on gender on the implementation of the principle of equal opportunities mainstreaming in all policies and equality of treatment between men and women in of the French Community employment and work.

Decree of the French- This decree stipulates the rules applicable to the Monitoring Speaking Community Committee on the integration of the gender dimension in all the implementing Articles 8 and policies of the French Community as established by the Decree 10 of the decree of 7 January of the French-Speaking Community of 27 April 2020 relating to 2016 on gender the development of the "women's rights" plan of the French- mainstreaming in all Speaking Community. community policies

Decree of the French- This Decree establishes a gender test model in the Speaking Community implementation of Articles 4 and 6 of the decree of 7 January establishing the gender test 2016 relating to gender mainstreaming across all sectors of model in the implementation the economy. of Articles 4 and 6 of the decree of 7 January 2016 relating to gender mainstreaming across all sectors of the economy Policies of the French- Speaking Community

Decree of the French- This decree establishes a method for integrating the gender Speaking Community dimension into the budgetary cycle in the implementation of establishing a method for Articles 4 and 7 of the decree of 7 January 2016 relating to the integrating the gender integration of the gender dimension into all policies of the dimension into the budgetary French-Speaking Community. cycle in the implementation of Articles 4 and 7 of the decree of 7 January 2016 relating to the integration of the gender dimension into all policies of the French- Speaking Community

Decree of the French This decree sets up a new specific Coordination Committee in Community of 3 May 2019 on charge of fighting violence against women, and sets up the fight against violence collectives of associations, recognized for a period of five against women years, that can benefit from annual subsidies. The committee's main mission is to submit a proposal for a "Five-year plan to combat violence against women" and to ensure its follow-up. It also ensures the accessibility of information, studies and educational tools related to this violence.

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Relevant provisions Content/scope/outline

The Walloon Decree of 4 July This decree sets forth the conditions and subsidies to shelters 2013 relating to the that accommodate female victims of domestic violence and, Regulatory Code of Social where appropriate, their children. Action and Health in Wallonia

Decree of 27 April 2020 Based upon the above-mentioned decree of 3 May 2019, this relating to the elaboration of decree sets out a five-year plan for the respect, protection and the "women's rights" plan of realization of women's rights with the aim of achieving full the French Community equality between men and women in the policies of the French Community.

Order of the Walloon This order sets up the allocation, conditions and procedure to government of 26 January obtain subsidies for foster home and community living spaces 2017 amending certain by province. The subsidized beds are allocated as follows: provisions of the Walloon Walloon Brabant — 160 beds Regulatory Code for Social Action and Health relating to Hainaut — 681 beds the accommodation of people Liège — 555 beds in social difficulties Luxembourg — 178 Namur — 215

Brussels Region

Relevant provisions Content/scope/outline

The Brussels government's In its Declaration of Regional Policy 2019-2024, the Brussels declaration of Regional Policy government expresses its ambition in fighting violence against 2019-2024: Brussels Plan women. By developing and implementing the first Brussels to combat violence Global Plan on violence against women, the objective is to against women address all aspects of this issue in a coordinated, cross-cutting, transparent and effective manner. Prevention and awareness raising, as well as support for victims and facts about perpetrators, are thus addressed in this plan, which is available here: https://equal.brussels/wp- content/uploads/2020/06/Presentation_Plan_Violences_DEF.p df.

Equality Action Plan of Evaluation carried out by the City of Brussels concerning women and men for the city equality of women and men in local life, in light of the city's of Brussels commitments under the European Charter.

Decree of the Brussels This order partially transposes the following European Region of 5 October 2017 to Directives: fight against certain forms of . Directive 2000/43/EC of 29 June 2000 discrimination and promote implementing the principle of equal treatment equal treatment between persons irrespective of racial or ethnic origin . Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment

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Relevant provisions Content/scope/outline between women and men in the access to and supply of goods and services This order also aims at creating a general and harmonized framework for fighting against certain forms of discrimination and promoting equal treatment.

Decree of the Brussels This decree implements the principle of equal opportunities and Region of 29 March 2012 on equal treatment of men and women in matters of employment gender mainstreaming in the and occupation. policy lines of the Brussels By this decree, the government of the Brussels Region wishes Region and Order of the to ensure the implementation of the objectives of the Fourth government of the Brussels World Conference on Women held in Beijing in September Region of 24 April 2014 1995, and, in particular, the integration of the gender dimension implementing the Order of 29 in all the policies, measures, budget preparations or actions it March 2012 on gender takes, with a view to avoiding or correcting possible inequalities mainstreaming in the policy between women and men. lines of the Brussels Region

Decree of the Brussels This decree establishes a method for gender mainstreaming in Region of 14 July 2016 the budgetary cycle. establishing a method for gender mainstreaming in the budgetary cycle

Brussels Region Order of 4 This decree sets forth measures aimed at ensuring diversity September 2008 aimed at within public services in the Brussels Region. implementing a diversity policy within public services and Government Order of 19 July 2012 implementing the Order of 4 September 2008

Flemish Region and Community

Relevant provisions Content/scope/outline

Decree of 10 July 2009 on the This decree sets out the open method of coordination (MOC) framework of the Flemish where members of the government agree together on the equal opportunities and equal objectives and then each member of the government is treatment policy responsible for achieving these objectives in its own area. This decree has the following objectives: (i) to create a tolerant society that recognizes and values differences between people (ii) to combat and prevent discrimination (iii) to create the conditions so that everyone can participate properly in Flemish society (iv) to realize equal opportunities for social groups facing backwardness or exclusion

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Relevant provisions Content/scope/outline

Flemish Decree of 8 May This decree organizes the missions and conditions of: 2009 on general social assistance (i) remote access center, which provides assistance, emergency reception, information and advice by telephone or other electronic means of communication (ii) general welfare center (Centra Algemeen Welzijnswerk (CAW), which offers residential care to victims of domestic violence; in Flanders the CAWs operate three women's shelters and 13 centers providing residential care for women and men whose safety is seriously threatened)

1.2 What is the controlling case law?

To the best of our knowledge, there is no controlling case law specific to domestic violence in Belgium.

However, it is interesting to note that in a decision of February 2019, the constitutional court ruled that Article 40-ter of the Act of 15 December 1980, regarding access to the territory, residence, settlement and removal of foreigners, violated the right to nondiscrimination. This article allowed Belgian authorities, within five years of the recognition of the residence right, to terminate such a right that was given to a non-European individual divorced from a Belgian national and a victim of domestic violence (i.e., rape, assault and battery, poisoning), except if that individual could demonstrate that they were working in Belgium or had sufficient resources not to become a "burden" on society. Under the same circumstances of domestic violence, Belgian authorities, however, were not allowed to terminate the right of residence of a non-European foreigner divorced from another non-European foreigner admitted for limited residence, even if the latter did not have a job or sufficient resources.

The court noted that the provisions at issue give rise to a difference in treatment between non- European nationals who are divorced and who have been victims of domestic violence in the context of marriage, depending on whether they were married to another non-European national or to a Belgian national.

1.3 What are the specific parts of the court system that address domestic violence?

The family court is competent for applications relating to the temporary residence ban referred to in the Act of 15 May 2012 (Article 572-bis, 11 of the Judicial Code).

The family court is also competent for ordering (urgent) provisional measures, including, without limitation, the determination of separate residences for spouses or legal cohabitants in the circumstances of Articles 223 and 1479 of the Civil Code pursuant to Articles 1253-ter/4 to 1253- ter/6 of the Judicial Code. In that respect, it is worth noting that, pursuant to Article 1253-ter/5, al. 3 of the Judicial Code, the family court may decide that:

With respect to the determination of the separate residences referred to in [2 paragraph 1]2, 3°, if a spouse or a legal cohabitant is guilty, in respect of his or her spouse, of an act referred to in section 375, 398 to 400, 402, 403 or 405 of the Criminal Code (i.e., rape,

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unqualified intentional homicide and intentional physical injury) or attempted to commit an act referred to in article 375, 393, 394 or 397 of the same Code, or if there are serious indications of such behavior, the other spouse or legal cohabitant will, at his or her request and except in exceptional circumstances, be granted the use of the conjugal or common residence.

The criminal court is competent to rule on the following offenses: . voyeurism (Article 371/1 of the Criminal Code) . indecent assault committed against persons or with the assistance of persons of either sex, with violence, duress, threat, surprise or deception, or that was made possible because of a physical or mental infirmity or disability of the victim (Article 373 of the Criminal Code) . (premeditated) assault and battery (Article 398 of the Criminal Code) . voluntary administration, without intent to kill, of substances, that may cause death, resulting in personal illness or incapacity to work or substances that, although not of a nature to cause death, may nevertheless seriously impair health (Article 402 of the Criminal Code) . harassment (Article 442-bis of the Criminal Code)

The court of assize is, in principle, competent to rule upon crimes (Article 216-novies of the Belgian Code of Criminal Procedure. Yet, under Belgian law, a large majority of crimes can be brought before the criminal court, subject to admission by the judge of extenuating circumstances (e.g., no former criminal sentences exceeding five years of imprisonment):

. rape (Article 375 of the Criminal Code) . deliberate murder (Article 393 of the Criminal Code) . premeditated murder (Article 394 of the Criminal Code) . premeditated assault and battery resulting either in an illness that appears to be incurable, or in personal incapacity to work for more than four months, or in the loss of the absolute use of an organ, or in serious mutilation (Article 400, al. 2 of the Criminal Code) . assault and battery committed against a minor or against a person whose situation of vulnerability by reason of age, pregnancy, illness, infirmity or physical or mental disability was apparent or known to the perpetrator and resulting either in an illness that appears to be incurable, or in personal incapacity to work for more than four months, or in the loss of the absolute use of an organ, or in serious mutilation (Article 405-bis of the Criminal Code) . intentional assault and battery, without intent to cause death but that nonetheless caused death (Article 401 of the Criminal Code) . voluntary administration, without intent to cause death, of a substance that is likely to cause death or serious impairment of health when the substance has caused an apparently incurable disease, personal incapacity to work for more than four months, the loss of an absolute organ, or death (Articles 403 and 404 of the Criminal Code)

1.4 What are potential causes of action?

In order to apply for a temporary residence ban under the Act of 15 May 2012: facts or circumstances confirming that the presence of a person of full age at the residence represents a serious and immediate threat to the safety of one or more persons occupying the same residence.

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From a criminal law point of view:

1. Threat: either verbally or in writing, anonymously or signed, with an order or condition, to commit a punishable attack against persons or property (Article of the 330 Criminal Code). Threats are criminalized under criminal law if they can objectively be considered likely to cause a reasonable person to have a serious fear. A mere forceful exchange between two persons is not sufficient to establish the existence of real threats. 2. Voyeurism (Article 371/1 of the Criminal Code): can be used to punish, among other things, nonconsensual image or video recording or sharing (including showing, making accessible or broadcasting). 3. Rape (Article 375 of the Criminal Code): includes any act of sexual penetration, of whatever nature and by whatever means, committed in respect of a person who has not given consent. 4. Assault and battery (Articles 410 and 398, al. 1 of the Criminal Code): there is no specific incrimination regarding honor killings, domestic and intrafamily violence, the latter being considered as an aggravating circumstance of the infraction of assault and battery. 5. Harassment (Article 442-bis of the Criminal Code): this includes acts by anyone who has harassed a person when they knew or should have known that this behavior would seriously affect the peace of mind of the harassed person; we note that harassment by electronic means of communication is also punished (see notably Article 145 §3-bis of Act of 13 June 2005). 6. Indecent assault committed with violence, duress, threat, surprise or ruse, or that was made possible by the victim's physical or mental infirmity or disability (Article 373 of the Criminal Code). 7. Sequestration/arbitrary detention (Article 434 of the Criminal Code): arresting or causing the arrest, detention or causing the detention without an order from the relevant authorities and except in cases where the law permits or orders the arrest or detention of individuals.

From a civil law point of view:

1. Serious breach of duties by one of the spouses or the agreement between spouses is seriously disturbed (Article 223 of the Civil Code). 2. The agreement between legal cohabitants is seriously disturbed (Article 1279 of the Civil Code). 3. Damages caused by the other party's fault (Article 1382 of the Civil Code).

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2 Introduction: framework guiding domestic violence law

2.1 Are there civil and criminal legal remedies for domestic violence victims?

Yes, see below.

Preliminary note regarding short-term barring order

First, it is worth noting that the Belgian legal framework contains a specific law, the Act of 15 May 2012 on the temporary residence ban in the event of domestic violence, as amended by the Act of 5 May 2019, which is situated at the intersection of criminal law, civil law and administrative law.

This act introduces a temporary residence ban (or a "short-term barring order") in case of domestic violence. It is a specific law providing for the possibility of imposing a short-term barring order in cases of domestic violence.

Under this act, the public prosecutor may order the temporary ban of a person from the residence if there is a serious and immediate threat to the safety of one or more persons occupying the same residence (partner or children). This also entails a ban on contact with the persons covered by the order. This covers not just the partner but also children and other vulnerable persons residing in the same house on a regular basis.

The barring order can be imposed by the public prosecutor for a maximum duration of 14 days, starting from the notification to the person concerned. During that 14-day period, a hearing must be held during which the family court will decide to lift the barring order or to extend it for a maximum of three months.

Failure to comply with the order leads to the application of criminal sanctions.

Criminal remedies 1. Criminal protective orders

As mentioned under point 1 "Legal provisions," the Criminal Code criminalizes a wide range of behaviors related to domestic violence and, in particular, forms of violence included in the Istanbul Convention, such as rape (Articles 375, 376 and 377), harassment (Articles 376, 377 and 422-bis), forced abortion (Article 348 et seq.), forced marriage and cohabitation (Article 391-sexies et seq.), physical violence (Article 398) and female genital mutilation (Article 409), human trafficking (Article 433-quiquies) and sexism (Article 448). Helping and being complicit in the commission of offenses is criminally reprehensible under Belgian law. Attempted physical violence as well as attempted forced marriage is also criminalized.

In general, under Belgian criminal law, restraining or protection orders may be issued in the context of criminal proceedings; they may be imposed at any stage of the criminal proceedings (before, during and after the trial) on the basis of different provisions.

2. Harassment alarm

See the Ministerial Circular of 29 May 2019 on harassment alarm in the context of violence between ex-partners. The harassment alarm is an application that has been integrated into the 112 app and works with a portable button connected via Bluetooth to the victim's smartphone.

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When the victim is in imminent danger and presses the button, a call is made to the police call center. At the call center, the incoming call is clearly signaled as coming from a harassment alarm. The police take the necessary steps to immediately dispatch a police response team to the location indicated by the caller to the emergency center. In addition, the response team is informed of the special circumstances related to the recording of the victim, allowing for a more effective response. Finally, the 112 app sends a daily report containing various information that is useful to follow up on with the victim.

To benefit from the harassment alarm, a person must meet the following conditions:

. be a victim of serious and/or life-threatening harassment committed by a former partner and be able to prove it with a report(s); if not, be prepared to have a report drawn up . be living/resident in the territory of the police area handling the case . not maintain voluntary contact with the ex-partner (unless this is necessary in the context of the regime of rights of access to children); and be prepared to sign the user agreement

Civil remedies 1. (Urgent) preliminary measures, such as allocation of the family home to one spouse

Civil Law provides for the possibility to request a protection order, such as contact restraining order, through to preliminary injunctions.

Additionally, married partners (Article 223 of the Civil Code) and legal cohabitants (Article 1279 of the Civil Code) can ask the family court for (urgent) preliminary injunctions, including the allocation of the family home in accordance with Article 1253-ter/4 to Article 1253-ter/6 of the Judicial Code.

Preliminary injunctions can take the following forms (Article 1253-ter/5 of the Judicial Code):

(a) order or modify any provision relating to parental authority, accommodation and the right of contact (b) fix, modify or abolish alimony (c) determine the separate residences of spouses and legal cohabitants (d) prohibit one of the spouses, for a period of time to be determined by the court, from alienating, mortgaging or committing his or her own or common movable or immovable property without the consent of the other spouse; the court may prohibit the removal of movable property or allocate its personal use to one of the spouses (e) require a spouse who owns movable property to give security or provide proof of sufficient solvency (f) use the same powers as those attributed to him or her under Article 221 of the Civil Code, i.e., grant to one spouse the income of the other spouse or the income of the property he or she administers under their matrimonial regime, as well as any other sums owed to him or her by third parties, under the conditions and within the limits fixed by the judgment (g) fix the conjugal residence of the spouses in case of disagreement (h) carry out a social study or any useful investigations, in order to decide on a request relating to a minor in accordance with the best interest of the minor

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Save in exceptional cases, in cases of serious indications of rape or violence, the family home will be assigned to the spouse who is the victim of the abuse and who requests an injunction.

The violation of civil protection orders obtained on the basis of Articles 223 and 1479 of the Civil Code is not criminalized. It is, however, possible to request a compensation for the (additional) damages incurred due to the violation of the protective order (see our answer under question 5.5).

2. Irretrievable breakdown of the marriage

A married partner can sue for a divorce for irretrievable breakdown of the marriage (Article 229 of the Civil Code). When the cause is deemed urgent or urgency is invoked, preliminary injunctions may, at the request of one or both of the parties or of the public prosecutor, be imposed by the family court for the duration of the divorce procedures (Article 1280 of the Judicial Code).

3. Compensation for moral or/and physical damage

Under Article 1382 of the Civil Code, when a victim wants to obtain financial compensation for damages (moral, economic, financial, etc.) suffered from the perpetrator of the violence, the victim may bring civil action at various stages of the criminal proceedings (before the examining magistrate, before the chambre du conseil, before the criminal court). If no public action has been initiated, the victim may also launch a judicial investigation by filing a complaint and declare himself or herself as a civil party before the magistrate in charge. For contraventions and misdemeanors, it is also possible to proceed by direct summons before the criminal court.

4. Compensation from the state

Victims of intentional violence or their relatives may apply, under certain conditions, for some form of compensation from the federal state in the form of financial support. For example, if the perpetrator is unknown or proves to be insolvent, the federal state contributes to the compensation of victims. There is a special fund to help victims of intentional acts of violence (see Act of 1 August 1985 regarding Commission for Financial Aid to Victims of Intentional Acts of Violence mentioned above).

In the system of financial assistance to victims of intentional violence, there are three types of assistance: (1) main assistance (financial compensation for the damage suffered); (2) emergency assistance, granted before the completion of the legal proceedings (this may be necessary if the victim suffers significant damage in case of delay in granting assistance); and (3) supplementary assistance, granted after the main assistance (when the damage suffered by the victim increases).

2.2 Is domestic violence identified in national law as a human right (noting that at a European level protection from domestic violence has not been explicitly identified as a human right but is indirectly captured by the other provisions)?

First, it is worth noting that in Belgium, sexual violence (indecent assault, rape, etc.) is criminalized under Book 2, Part VII of the Criminal Code entitled "Crimes and offenses against family order and public morality" (Articles 343 to 391), and not under Book 2, Part VIII entitled "Crimes and offenses against persons" that covers crimes against bodily integrity (murder, assault and battery, inhuman treatment, etc.). It is also to be noted that domestic violence, as such, is not explicitly identified as a human right. However, it is captured by other provisions of international law with direct effect in Belgium, such as:

. Article 3 of the EU Charter of Fundamental Rights, which provides for the right to physical and mental integrity of a person

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. Article 10, which recognizes the right to nondiscrimination and, in particular, the right to equality between men and women . Article 22, which recognizes the right to respect for private and family life

2.3 Has your country signed and ratified the Council of Europe's Istanbul Convention (2011) preventing and combating violence against women and domestic violence (CETS No. 210)?

Yes, Belgium signed the Istanbul Convention in 2012 and ratified it in 2016. The Istanbul Convention entered into force in Belgium in 2016.

2.4 If it has ratified the Istanbul Convention, how has this convention been implemented into national law?

The Istanbul Convention only became binding, under Belgian law, in 2016 through the adoption of the Law assenting to the Council of Europe Convention on preventing and combating violence against women and domestic violence, done in Istanbul on 11 May 2011.

Note that Belgium is a federal country composed of various federated entities. Insofar as the Istanbul Convention is deemed as a "mixed instrument" (i.e., affecting both federal and federated competences), this international instrument had to be ratified and implemented in the various federated entities as well.

Accordingly, all Belgian entities (besides the federal state) had to adopt a legal instrument to make the Istanbul Convention applicable in their respective federated jurisdiction.

In the Dutch-speaking part of Belgium, this was done through the adoption of a decree dated 29 November 2013. In the French-speaking part of Belgium, this was done through the adoption of two decrees dated 21 February 2014 and 13 March 2014. In the German-speaking part of Belgium, this was done through the adoption of a decree dated 6 May 2014. Brussels adopted an ordinance dated 2 July 2015 to assent to the Council of Europe Convention on the Prevention and Combating of Violence against Women and Domestic Violence.

In practice, Belgium's additional commitments with respect to the Istanbul Convention have been reflected in the 2015-2019 National Action Plan (NAP), as well as in Circulars COL 3/2006 and COL 4/2006 on domestic and marital violence and COL 18/2012 on the temporary ban on residence. As for the 2020-2024 period, it seems that the NAP is still under negotiation. However, we note that the federated entities have undertaken some initiatives to implement some new action plans for this 2020-2024 period (see decree dated 27 April 2020 relating to the elaboration of the women's rights plan for the French Community,6 the Brussels plan to combat violence against women7 and the Flemish action plan to combat violence against women).8

In accordance with Article 68 of the Istanbul Convention, Belgium has submitted a report based on a questionnaire prepared by the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO), on the legislative and other measures giving effect to the provisions of this convention.9

In its 2020 report,10 GREVIO notes a certain invisibility of gender-based violence against women in Belgian policies. For instance, gender neutrality in the title of laws, circulars or action plans is aggravated by a tendency to place women and men on the same footing among the victims and perpetrators of the violence covered by the Istanbul Convention.

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In the meantime, however, it appears that since the adoption of the first national action plan in 2001, significant progress has been made by uniting federal and federated entities around such a plan in 2006 and 2008, by extending the scope of the plan beyond domestic violence to include other forms of violence against girls and women, such as sexual violence, forced marriages, so- called "honor crimes" and female genital mutilation.

Nevertheless, GREVIO underlines a fragmentation of coordination that undermines the coherence of policies and approaches.

In view of these shortcomings, the GREVIO report has identified a number of priority areas in which full compliance with the provisions of the Istanbul Convention requires further action (i.e., provide law enforcement and judicial authorities with the necessary resources, knowledge and means, ensure that criminal investigations and proceedings can be carried out effectively).

2.5 If it has not ratified or signed the Istanbul Convention, is it envisaged that your country will do so?

N/A

2.6 If it has ratified the 1979 Convention, how has the recommendations part of General Comment No. 35 been implemented into national law?

At national level, Belgium ratified the 1979 Convention through the adoption of the Act of 11 May 1983 "approving the Convention on the Elimination of All Forms of Discrimination against Women."

Belgium reports to the UN Committee on the Elimination of Discrimination against Women (CEDAW) every four years on its implementation at the national level11 (see for instance, "The seventh periodic report on the implementation of the Convention on the Elimination of All Forms of Discrimination against Women — CEDAW," which covers the 2007-2012 period).12

At the federal level, three anti-discrimination laws were adopted on 10 May 2007 to combat a range of grounds for discrimination, particularly in employment, social security, the supply of goods, etc. and services, and access to economic, social and cultural activities.

The federated entities have also adopted legislative measures to combat all forms of discrimination, particularly against women, and to transpose European directives (e.g., the Decree of 10 July 2008 on the framework of the Flemish equal opportunities and treatment policy, the French Community's Decree of 12 December 2008 relating to the fight against certain forms of discrimination, the German-speaking Community's Decree of 19 March 2012 to combat certain forms of discrimination).

More generally, we note the enactment of various decrees and acts aimed at ensuring equality of treatment and equal opportunities. In Brussels, for instance, the Decree of 9 July 2010 on "the fight against certain forms of discrimination and the implementation of the principle of equal treatment" aims at ensuring equality between men and women.

Therefore, Belgium has a range of constitutional, legislative, regulatory and decree-based measures at its disposal to combat discrimination on the grounds of sex and to ensure respect for the principle of equality between men and women. The existing provisions prohibit both direct and indirect discrimination, sexual harassment and harassment on the grounds of sex, as well as incitement to discriminate on the grounds of sex. The laws in force provide for legal remedies for victims and sanctions against perpetrators of discrimination.

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In addition, the Institute for the Equality of Women and Men 13 has the mission to guarantee and promote the equality of women and men and to fight against all forms of discrimination and inequality based on sex. The institute thus follows up on complaints filed by victims of this type of discrimination, provides information and assistance, refers victims to existing services and organizes mediation. If necessary, the institute can take legal action in consultation with the victim.

2.7 If the 1979 Convention has not been ratified or signed, is it envisaged that your country will do so?

N/A

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3 Similarities and differences in terminology

Set out below are various terms and their definitions:

Term Definition

Domestic violence The Belgian National Action Plan with respect to combatting violence between partners, as approved during the Belgian interministerial conference (federal, community and regional ministers) of 8 February 2006 adopts a common definition of domestic violence, which reads as follows: Domestic violence is a set of behaviors, acts, attitudes of one partner or ex-partner that aim to control and dominate the other. It includes verbal, physical, sexual, economic, repeated or repetitive aggression, threats or coercion that undermines the integrity of the other person and even his or her socio- professional integration. Such violence affects not only the victim, but also other family members, including children. It is a form of intra-family violence. It appears that in the vast majority of cases, the perpetrators of such violence are men and the victims are women. Violence in intimate relationships is the manifestation, in the private sphere, of the unequal power relations between women and men still at work in our society. The National Action Plan to combat all forms of gender-based violence14 defines domestic violence as: A set of behaviors, acts, attitudes of one partner or ex-partner that are intended to control or dominate the other. It includes verbal, physical, sexual, economic or sexual assault, threats or coercion, whether repeated, which undermines the integrity of the other person and even his or her socio-professional integration. This action plan was coordinated by the Belgian Institute for the Equality of Women and Men and relies on the close cooperation between the federal government, the communities and the regions to convert this plan into 235 new measures to combat gender-based violence. A definition was drawn up by the College of Public Prosecutors on 21 April 2005 and was included in COL 4/2006, which refers to COL3 /2006: "Any form of physical, sexual, psychological or economic violence between spouses or persons who cohabit or have cohabited and maintain or have maintained a lasting emotional and sexual relationship."

Stalking Voyeurism is defined in Belgian law as: 1. The act of observing or make a person observed, or made or caused to be made a visual or audio recording of a person: (a) directly or by technical or other means (b) without that person's permission or knowledge;

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Term Definition (c) while the person was in a state of nudity or engaged in explicit sexual activity, and (d) in circumstances in which the person could reasonably consider that his or her privacy would not be invaded; 2. Showing, making accessible or disseminating images or visual or audio recordings of a person who is nude or engaged in explicit sexual activity, without that person's consent or knowledge, even if that person consented to their making (Article 371/1 of the Criminal Code).

Harassment The term harassment has not been defined directly in the Criminal Code (Article 442). However, based on Belgian case law and doctrine, it is generally considered that harassing someone means engaging in a behavior that infringes on a person's privacy. To constitute harassment, this behavior must be repeated. It is important to stress that acts of harassment must not be reprehensible in themselves. In other words, the acts must not be unlawful in themselves. Therefore, they can be a letter, a phone call, the delivery of things, etc. In addition, the perpetrator's behavior must be directed at a specific individual. Under Belgian law, harassment requires a moral element, which is the fact of knowing or having to know that his or her behavior seriously affects the victim's peace of mind. We have also identified several definitions of such terms across the Belgian regulations, which might be of relevance depending on the context and include: . Pursuant to the Governmental Decree of 5 October 2017 to combat certain forms of discrimination and promote equal treatment, harassment is defined as: undesirable conduct which relates to sex, alleged race, color, nationality, descent, national or ethnic origin, age, sexual orientation, marital status, birth, wealth, religious or philosophical conviction, political conviction, trade union belief, language, state of health, disability, physical or genetic characteristic, social origin and condition and which has the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment . Pursuant to the Regional Decree of 10 July 2008 on the framework of the Flemish equal opportunities and equal treatment policy, intimidation is defined as harassment that involves sex, gender identity, gender expression, age, sexual orientation, marital status, birth, property, religious or philosophical belief, political belief, trade union belief, language, health status, disability, physical or genetic characteristics, social position, nationality, race, skin color, national or ethnic origin or descent and that has the purpose or consequence of violating the integrity of the person and of creating a threatening, hostile, offensive, humiliating or offensive environment. In addition, this decree specifies that intimidation of a sexual nature refers

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Term Definition to any form of harassment of a sexual, verbal, nonverbal or physical nature, which has the objective or consequence of violating the integrity of the person, in particular, in the case of creating a threatening, hostile, offensive, humiliating or hurtful situation. . Pursuant to the Act of 10 May 2007 to combat discrimination between women and men, harassment is defined as any undesirable behavior that is related to sex and that has the purpose or effect of violating the dignity of the person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. Sexual harassment is also defined as unwanted conduct of a sexual nature, expressed physically, verbally or nonverbally, which has the purpose or effect of violating the dignity of a person and, in particular, of creating an intimidating, hostile, degrading, humiliating or offensive environment. . Pursuant to Article 32-ter of the Act of 4 August 1996 on the welfare of workers in the performance of their work, harassment is defined as: abusive and repeated conduct from any source, […] as manifested in particular by behavior, words, behavioral patterns, words, actions, intimidation, unilateral acts, gestures and writings, having the object or effect of bearing injury to the personality, dignity or physical or psychological integrity of [the victim],[…] which create an intimidating, hostile, degrading, humiliating or offensive environment. This Act also defines the terms "sexual harassment at work" as "any unwanted verbal, nonverbal or physical conduct with a sexual connotation, which has the purpose or effect of violating the dignity of a person or of creating an intimidating, hostile, degrading, humiliating or offensive environment."

Victim The victim is not expressly defined in the Criminal Code. However, it is defined by the Act of 17 May 2006, which reads as follows: The following categories of persons who, in the cases provided for by this Act, may request, in the event of the granting of a sentence enforcement procedure, to be informed and/or heard: (a) the natural person whose civil claim is declared admissible and grounded; (b) the natural person in respect of whom a judgment establishes that offenses have been committed, or his or her legal representative; (c) a natural person who has been unable to bring a civil action as a result of a situation of material impossibility or vulnerability;

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Term Definition (d) a relative of the person whose death is the direct result of the offense or a relative of a deceased person who was a party to the proceedings; a relative is the spouse of the deceased, the person who cohabited and maintained a lasting emotional relationship with the deceased, his or her ascendants or descendants, brothers and sisters, and dependents; (e) a relative of an un-deceased victim who has been unable to bring a civil action because of material impossibility or vulnerability. A relative is defined as the spouse of the un-deceased victim, the person who cohabited and maintained a lasting emotional relationship with the victim, his or her ascendants or descendants, brothers and sisters, and dependents of the victim.

Abuser The Criminal Code defines abuser as: "Anyone who willfully wounds or assaults someone (Article 398), whoever commits any act of sexual penetration, of whatever nature and by whatever means, on a person who does not consent to it" (Article 375 of the Criminal Code).

Civil protection order In Belgium, protection orders are orders that can be imposed through criminal, civil and administrative law to protect someone from (threats of) acts of violence or harassment. Most of the laws providing protection orders are generic laws. Civil protection orders are protection orders that are imposed on the basis of the Civil Code, except for the short-term barring orders that are specific civil protection orders to be imposed on the basis of the specific Act of 15 May 2012. Belgian law does not provide a definition of the civil protection order. However, it encompasses measures including, but not limited to: . prohibition to contact the victim . prohibition to enter the common residence . ban from the family home and prohibition to contact the coresiding person(s) Under criminal law, protection orders can be imposed at all stages of the criminal procedure (before, during and after the trial) and through different legal provisions.

Causes of action These are a set of predefined factual elements that allow for a legal remedy. The factual elements needed for a specific cause of action can come from a constitution, statute, judicial precedent or administrative regulation. For a cause of action to be admissible in court, the plaintiff must demonstrate an "interest to act," i.e., the result, the benefit, material or moral, effective and not theoretical, which the plaintiff seeks by submitting her/his claim to the court. The court assesses "interest" on the day the cause of action is filed.

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Term Definition

Marital rape Article 375 of the Criminal Code defines rape as: "Any act of sexual penetration, of whatever nature and by whatever means, committed on a person who does not consent" and stresses that consent shall not be implied, in particular, where the act was imposed by violence, coercion, threat, surprise or deceit, or was made possible by reason of the victim's physical or mental infirmity or disability. The definition includes marital rape, as Belgian law makes no distinction between marital rape and out-of-marriage rape.

3.1 Are there any other important domestic violence terms defined in relevant domestic violence statutes and codes?

N/A

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4 Protection for domestic violence victims and relief granted

4.1 Civil protection orders

4.1.1 Are there civil protection orders available to victims of domestic abuse?

Yes. Based on civil law, the victim can ask for a protection order. Violation of the order is not criminalized but carries a civil penalty. Article 223 of the Civil Code mentions that if one of the spouses seriously fails in their duties, the family court orders, at the spouse's request, urgent measures in accordance with Articles 1253-ter/4 to 1253-ter/6 of the Judicial Code. This includes measures related to:

. the prohibition of contact between parties15 . the prohibition on one or the other of the parties to enter the conjugal residence16

Article 1479 of the Civil Code17 mentions that the family court can take urgent preliminary injunctions related to the occupancy of the family home in case the harmony between the legal cohabitants is seriously hindered.

Last, as mentioned, the Act of 15 May 201218 regulates short-term barring orders in cases of domestic violence. This law came into force on 1 January 2013.

4.1.2 Who can petition for civil protection orders?

The spouse/partner can request protection orders related to Article 223 of the Civil Code. The legal cohabitant can request protection orders related to Article 1279 of the Civil Code. It requires that the victim sue the other person to obtain application of this civil protection order.

Only the prosecutor is authorized to impose a temporary residence ban/short-term barring order (Article 3 § 1 Act of 15 May 2012). The family court can lift, prolong or change the barring order after it is requested, in writing or orally, by the parties or the public prosecutor (Article 5 § 2 Act of 15 May 2012).

4.1.3 Is there temporary custody of a child or child support orders?

In application of Article 223 of the Civil Code, in cases of child abuse, the judge can allocate the use of the family home to the nonabusing parent. 19 In civil law, urgent preliminary injunctions apply to all the children residing in the family home.20 During divorce procedures, the preliminary injunctions only apply to the mutual children of the divorcing partners, according to Article 1254 of the Judicial Code.21

The Act of 15 May 2012 can apply in cases of violence from a parent to one or more children. The public prosecutor must then decide the name of the persons with whom the barred person is prohibited from having contact.

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4.1.4 Is there a provision to order the abuser to move out or stay away from places that the victims frequent?

Yes. Different options exist:

. Under the Act of 28 January 2003, the spouse or legal cohabitant victim of physical violence perpetrated by their spouse or legal partner may be granted, save in exceptional circumstances, the use of the conjugal residence, upon his/her request. . Pursuant to the Act of 15 May 2012, a person who is committing acts of domestic violence (or who is an immediate threat for the coresidents) can be temporarily barred from the family home and the immediate residential environment, and be prohibited from contacting the coresiding person(s). The person barred from the house is prohibited from entering, being located near or being present in the place of residence. . Following Article 223 of the Civil Code and Articles 1253-ter/5 and 1253-ter/6 of the Judicial Code, it is possible to prohibit one of the parties from entering the family home. In case of serious indications of rape or violence, the family home will be assigned to the spouse who is the victim of the abuse. In case of child abuse, the judge can allocate the use of the family home to the nonabusing parent.22

4.1.5 Are there any other types of emergency, preventive and civil protection orders?

In the event of an imminent and serious danger, the Public Prosecutor's Office may also refer the matter to the investigating judge to issue an arrest warrant leading to preventive detention.

In cases where the danger is not serious and imminent, the Public Prosecutor's Office may instead ask the police to find an arrangement with the parties on a voluntary basis.

Note that protective orders can be implemented during several stages of the criminal procedure, e.g., conditional release in case of pre-trial detention, probation, mediation and amicable settlements.

4.1.6 Can these orders be requested by direct or indirect victims or legal representatives in children's cases?

The protective measures described above also apply where the children are under threat and can be requested by one of the parents/legal representatives.

4.1.7 Are there different types of civil protection orders, e.g., for a short- term period?

Yes, see above for the different types of protection orders.

4.1.8 Ar e ex parte orders permitted without the aggressor being present?

In principle, no. Circular 18/2012 of the College of Attorneys General to the appeal courts, regarding the temporary ban on residence in case of domestic violence,23 paragraph F, mentions that the decision for a barring order is, in principle, only taken after the hearing of the person "to be barred." However, in cases where the person refuses to be heard, police officers will inform him/her that the prosecutor will be informed of the situation and may nonetheless order a barring order. The police will have to document the refusal.

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4.1.9 Do emergency orders also extend protection for abuse and intimidation to family members of the victim?

Apart from violence between partners, a situation of danger for other family members (for example, violence from a parent to one or more children) can also lead to a barring order, such as:

. In the case of a barring order, the public prosecutor has the authorization to decide which persons the barred person is prohibited from having contact with, as long as they cohabit in the same place of residence. In cases of short-term barring orders, resident children are put in safety. . In cases of preliminary injunctions through a civil procedure, the judge will also decide on the residence of the children.

Urgent preliminary injunctions during marriage or legal cohabitation apply to all children residing in the family.

4.1.10 How long do the orders last?

According to Article 3 § 3 of the Act of 15 May 2012, a short-term barring order lasts for a maximum of 14 days (it was originally 10 days), starting from the notification to the person concerned. It can be extended by the family court for a period up to a maximum of three months (Article 5 § 2).

Following Article 223 of the Civil Code and Articles 1253-ter/5 and 1253-ter/6 of the Judicial Code, it is possible to prohibit one of the parties from entering the family home. In addition, Article 1479 of the Civil Code 24 mentions that the family court can take urgent preliminary injunctions related to the occupancy of the family home in cases where the harmony between the legal cohabitants is seriously hindered. The duration of this measure is determined by the court.

4.1.11 Please provide any data or hyperlinks to government or NGO websites that include information on how often civil protection orders are issued, and any relevant demographics information, e.g., police reports, convictions, etc.

In November 2019, a written parliamentary question was raised at the Belgian Senate in relation to the use of the temporary residence ban/short-term barring order in relation to domestic violence.25 According to the response provided by the Ministry of Justice on 21 April 2020, it appears that short-term barring orders have been implemented 686 times between 1 January 2013 (i.e., time of entry into force of the Act of 15 May 2012 and 31 August 2019). Their use has been growing over the years: from 31 in 2013 to 161 in 2018. During the same period, 88 cases of violation of the temporary residence ban have been recorded.

It is also worth noting the following (unofficial translation of the response):

Between January 1, 2013 and August 31, 2019, 686 cases of temporary residence ban were recorded as a noncriminal case. Some jurisdictions have not heard of temporary residence ban cases because they have favored other types of measures. Thus, among all prosecutor's offices, only four of them resort to the temporary ban on residence. For other prosecutor's offices, the use of this measure is very limited. It is also possible, as the Antwerp public prosecutor's office points out, that the possibility of imposing a temporary ban on residence in cases where no criminal offense is found, has been overlooked by the police. The assumption can then be made that, in many cases, the temporary residence ban was no longer appropriate when the prosecution became aware of the situation, as the latter had not been notified immediately. Furthermore, in cases where criminal offenses were observed, the prosecution services resorted more to other types of measures deemed

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to be more effective (for example preventive detention). Raising awareness among stakeholders of the possibilities offered by the temporary residence ban, even in the absence of an offense, is gradually being made and the use of this measure may become more frequent in the future.

The following statistics may be found in the Belgian press:

. In 2018 there were 21,604 reports of physical domestic violence made to police, up from 20,759 reports in 2017.26 . It was also reported that 70% of the complaints are being dismissed, with no further action being taken.27

4.2 Steps for receiving a protective order

4.2.1 What documentation is needed to obtain a civil protection order?

To request a preliminary injunction on the basis of Articles 223 or 1479 of the Civil Code, the victim of domestic violence has to sue their spouse/partner. The formal requirements provided for in the Judicial Code in this regard will have to be met. The request for a preliminary injunction will more precisely need to mention:

. the date of filing of the request . the name, surname and address of the person who requests the preliminary injunction . the preliminary injunction requested and the grounds for such request . the competent judge . the signature of the lawyer of the person who requests the preliminary injunction

No complaint has to be lodged by the victim of the domestic violence to obtain a temporary residence ban/short-term barring order nor does the victim have to summon their spouse/partner, hence no specific documentation has to be provided by the victim. A public prosecutor imposes a temporary residence ban/short-term barring order if they deem that all conditions are met, i.e., if it emerges from facts or circumstances that the presence of a person of full age at the residence represents a serious and immediate threat to the safety of one or more persons occupying the same residence. On the basis of Article 3 §4 of the Act of 15 May 2012, a copy of the short-term barring order needs to be notified to the barred person mentioning: (i) the scope and the duration of the measure; (ii) the facts and circumstances that gave rise to the short-term barring order; (iii) the name(s) of the person(s) he/she is prohibited from contacting; and (iv) the sanctions that can be taken in the case of a violation of the order.

4.2.2 Does the victim need to attend a hearing?

Yes, if the family court has requested the hearing and if the preliminary injunction (requested on the basis of Articles 223 or 1479 of the Civil Code) concerns minor children, the victim will have to attend the hearing in person (as per Article 1253-ter/2 of the Judicial Code).

As far as temporary residence ban/short-term barring order is concerned, since it is imposed by the public prosecutor and not by a judge, the victim will not have to attend the hearing when it is imposed. However, the family court will have to impose the extension of the barring order. The victim will have to attend the hearing in person if it is requested by the family court and if preliminary injunctions (requested on the basis of Article 4 §3 of the Act of 15 May 2012) concern minor children (as per Article 1253-ter/2 of the Judicial Code).

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4.2.3 Can you request remedies?

Yes, please see below under 4.4. Please also note that in the framework of the extension of the short-term barring order, it is possible to apply for urgent preliminary measures (e.g., measures regarding children) or preliminary measures concerning the shared place of residency with the family court (Article 4 §3 of the Act of 15 May 2012).

4.2.4 Are there time limits?

Yes, as far as temporary residence ban/short-term barring order is concerned, on the basis of Article 3 §3 of the Act of 15 May 2012, it can only be imposed for a maximum period of 14 days starting from the notification to the person concerned. If the maximum period is not strictly necessary in order to ensure safety of the persons to be guaranteed, the public prosecutor can also decide to issue a barring order for a shorter period. On the basis of Article 5 § 2 of the Act of 15 May 2012, the family court can extend the temporary barring order once for a period of a maximum of three months by reasoned judgment.

As regards urgent preliminary injunctions related to the occupancy of the family home and the children, in the case of legal cohabitation (Article 1479 of the Civil Code),28 such measures are only applicable until the official cohabitation ends, unless the preliminary injunctions concern the mutual children of the official cohabitants.

4.2.5 Are there different rules in emergencies?

No. The procedure provided for on the basis of Articles 223 or 1479 of the Civil Code is always an emergency procedure that entails that the family court rules in preliminary relief proceedings. Therefore, the family court does not definitely settle a dispute between the parties but only provides urgent preliminary measures.

Before the Act of 5 May 2019, an emergency procedure was foreseen in the Act of 15 May 2012. This procedure, applicable only in cases of emergency, set out that the short-term barring order was first notified orally to the barred person and following this a copy of the document containing the barring order was issued to the barred person. With the entry into force of the Act of 5 May 2019, this emergency procedure has become the only procedure.

4.3 Judicial discretion

4.3.1 What discretion does a judge have in granting a civil protection order or other protective orders?

The public prosecutor and family court have rather limited discretion concerning short-term barring orders. Circular 18/2012 explicitly mentions that the measure must be limited to what is strictly necessary in order to ensure safety of the persons to be protected. Therefore, if there is another way to ensure the departure of the person at risk, this must be considered by the public prosecutor. This should be kept in mind when deciding on the length of the short-term barring order, given that it can be imposed for a shorter period than 14 days. When deciding on the extension of the short-term barring order and the length hereof, the family court should also keep the aforementioned in mind.

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4.3.2 Are there age limits on who can obtain orders?

Yes, regarding protective orders obtained on the basis of Articles 223 and 1479 of the Civil Code, which can only be obtained by a spouse/legal partner/legal cohabitant. Given that the minimum age to marry/for legal cohabitation is, in principle, 18, there is an age limit to obtain an order as spouse/legal cohabitant. However, the urgent preliminary injunctions can concern the prohibition to have contact with the children residing in the family house.

No, regarding the short-term barring orders. Minors can also be included in the short-term barring order, which entails that the restraining order is also applicable to them.

4.4 Restitution and remedies available to victims

4.4.1 Can victims obtain reimbursement for costs and restitution paid?

Yes, on the basis of Article 1382 of the Civil Code, a victim of domestic violence will be able to request an indemnity for the damages they encountered from the person liable for these damages. This indemnity can be requested for both physical damages, such as medical costs, and psychological damages encountered. To be able to request an indemnity from the person liable for the damages he/she encountered on the basis of Article 1382 of the Civil Code, the victim has to prove that (i) he/she indeed encountered damages, (ii) the person the indemnity is asked from was at fault and (iii) there is a causal link between said fault and the encountered damages.

If the identity of the person liable for the damages is not known or if the indemnity cannot be obtained from the person liable for the damages (e.g., due to insolvency) nor from any insurances, a claim for compensation can be made to the Commission for Financial Assistance to Victims of Deliberate Acts of Violence (Commissie voor Financiële Hulp aan Slachtoffers van Opzettelijke Gewelddaden /Commission pour l'aide Financière aux victimes d'actes Intentionnels de Violence).29 The following three types of compensation can be requested, in principle:

. A "primary compensation" for, among others, moral damages, medical and hospital expenses, loss of wages as a result of permanent or temporary incapacity for work. The maximum compensation amounts to EUR 125,000. Such compensation can only be requested after a judicial procedure. . An "urgent compensation" can be requested before a decision has been rendered in a judicial procedure. It is indeed sufficient that the victim has filed a complaint or if he/she is a civil party to an existing procedure. Such compensation can be requested if awaiting the end of the procedure could cause a significant damage to the victim. The maximum compensation amounts to EUR 30,000. . An "additional compensation" can be requested if the damages have increased notably within the 10 years after having received the "primary compensation."

4.4.2 Can they recover wages and profits lost?

Yes, if the victim can prove that the loss of wages and profits is a consequence of the domestic violence, the victim will be able to request an indemnity covering the loss of wages and profits under both procedures (i.e., on the basis of Article 1382 of the Civil Code and, if this is not possible, from the Commission for Financial Assistance to Victims of Deliberate Acts of Violence under the conditions outlined above).

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4.4.3 Is a separate civil process required?

Yes. The protective orders obtained on the basis of Articles 223 and 1479 of the Civil Code or obtained on the basis of the Act of 15 May 2012 are obtained on the basis of preliminary relief proceedings, which means that the judge does not rule on the merits of the case. In cases of criminal procedure against the violent person, the victim can request an indemnity for the damages they encountered by being a civil party to the proceedings.

If there is no criminal procedure against the violent person, the victim can start a separate civil procedure to request an indemnity for the damages they suffered. This separate civil procedure will not be a preliminary relief procedure.

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5 Prosecutorial considerations

5.1 Police procedures

5.1.1 When do the police get involved in domestic disputes or legal actions?

The police may get involved in several ways:

. upon complaint from the victim; the police officer will then make a report to the authorities and refer the complaint to the public prosecutor; the police may then be requested to hear the suspected person . upon notification by a third party such as, for example, medical personnel (please see below)

5.1.2 What circumstances effect law firm involvement?

The victim of violence could appoint a lawyer, usually specializing in criminal law or family law. It is usually recommended for a victim of violence to seek advice from experts in order to be duly and fully represented during judicial proceedings (e.g., criminal proceedings or divorce proceedings).

In addition, the victim of violence could contact legal aid offices. These offices provide free services aimed at guiding, helping, advising and representing a victim of violence, who would not have the sufficient resources to appoint a specialized lawyer.

In the same vein, any establishment of public utility and any association with legal personality, which tends to prevent violence within the couple, may initiate legal proceedings when a case of domestic violence arises.

Considering the necessity for a victim of violence to provide evidence thereof in court, engaging lawyers or any other specialized offices may be particularly appropriate (e.g., to gather evidence such as medical certificates, pictures, witnesses).

There is also a green number "Ecoute Violences Conjugales" or "1712" that victims of domestic violence or stalking can call for professional help.

5.2 Standard of proof 5.2.1 Is proof required by any legal means?

Yes, the principle under Belgian criminal law is that a person is innocent unless proven otherwise. Therefore, any prosecuting party will have to provide evidence that the accused is guilty of the crime he/she is accused of. The general principle is that evidence can be provided by all means (with certain exceptions as described below).

5.2.2 Are there any requirements regarding evidence and documents?

No, the principle under Belgian criminal law is freedom of proof.30 The prosecuting party can use any means to prove its claim. However, the more evidence the prosecutor has, the better for that party's case.

Examples of evidence are: medical/psychological exam/certificates; pictures; letters; statements; text messages; emails; police reports; etc. Any piece of clothing, hair or any other print of the

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author can also be used as evidence. Certain initiatives and collaborations with other services have been undertaken in order to facilitate the gathering of evidence and deal with victims of domestic violence and sexual aggression cases.31

However, in the following circumstances, the judge may not take into account certain evidence:

. When that evidence has been unlawfully obtained and for that reason the evidence should be excluded. Evidence has been unlawfully obtained if it has been obtained: (i) as a result of a crime (for example, by means of theft) (ii) when breaching a criminal procedure rule (iii) when breaching any right to privacy (iv) with disrespect to the rights of defense (for example, by using violence, torture, etc.) (v) with disrespect to the right to human dignity32 . However, that evidence should not be excluded in all circumstances. Pursuant to a decision of the Belgian Supreme Court of 14 October 2003,33 unlawfully obtained evidence should only be excluded in the following three circumstances: (i) when certain formalities have not been complied with and the law prescribes that that noncompliance results in the nullity of that evidence (ii) when the unlawful act has affected the credibility of the evidence (iii) the use of the unlawfully obtained evidence conflicts with the right to a fair trial34 . When the accused has not had the opportunity to contest the evidence.

It will eventually be the judge or the jury that will have to determine the value of the evidence and whether it is sufficient to decide beyond reasonable doubt that the accused is guilty of the relevant crime.

5.2.3 Is proof "beyond a reasonable doubt" required?

Yes, the elements of proof must convince the judge or jury beyond reasonable doubt that the prosecuted person is guilty.

5.2.4 Is the standard of proof different for ex parte orders?

No, no distinction is made between formal evidential requirements in interim proceedings and in "ordinary" proceedings.

5.3 Affirmative defenses

5.3.1 Are affirmative defenses available to the accused?

Chapter VIII of the Criminal Code describes the grounds for justification and exemption.

1. A ground for justification is a circumstance recognized by law that nulls the unlawful or illegal character of an alleged act, for example, legitimate self-defense, provocation, state of emergency or irresistible compulsion are grounds for justification.

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. Legitimate self-defense A perpetrator can claim that he or she acted in legitimate self-defense, if the following conditions are fulfilled. The attack must be: (a) illegal (b) current or imminent (c) directed against people (d) serious

The self-defense must be: (a) immediate (b) proportional to the attack (c) necessary (d) take place before or during the attack (e) done by means of assault and battery or homicide . Irresistible compulsion

There is no crime if the accused or accused person at the time of the facts was suffering from a mental disorder that invalidated his or her judgment or control over his or her actions or if he or she was compelled by a power he or she was unable to resist (Article 71 of the Criminal Code).

. Other

Other general justifications that exist, though do not appear to be relevant in the case at hand, including provocation, state of emergency, government measures, the objective impossibility to abide by the law, ignorance, error, good faith, coercion and force majeure.

2. Grounds for exemption is a specific reason embedded in the law that reduces or annuls the punishment of the crime. The types of grounds for exemption are the following. (a) Penalty reduction is possible in the act of: . provocation . declaration to the government (b) Punishment can be waived altogether in: . some cases of relatives and affinity . declaration to the government

5.3.2 Is willful intent required?

Depending on the specific qualification of the offense at stake, willful intent may be required (e.g., harassment, intentional bodily injury).

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5.3.3 Are false accusations punishable for the victim?

Yes, the wrongly accused may file a defamation complaint (Article 443 of the Criminal Code).

Article 444 of the Criminal Code provides that a person found guilty of slander or defamation will be punished by imprisonment for eight days to one year and a fine of EUR 26 to EUR 200. 35 However, the minimum penalty may be doubled where one of the motives for the offense is hatred, contempt or hostility toward a person on account of his or her alleged race, skin color, descent, national or ethnic origin, nationality, sex, sexual orientation, civil status, birth, age, wealth, religious or philosophical conviction, present or future state of health, disability, language, political conviction, trade union conviction, physical or genetic characteristic or social origin.

5.3.4 How is consent discussed in the law?

Below the age of 14

The legal age of sexual consent is 14. Below the age of 14, any act of sexual penetration is considered as rape with the aggravating circumstance of violence, even if the victim consents (Article 379 of the Criminal Code).

. Between the ages of 14 and 16 Between the ages of 14 and 16, a minor is able to give sexual consent if the sexual partner is no more than five years older than the minor and does not hold a position of power over the minor. Outside of those boundaries, the sexual partner can be charged with indecent assault. . Above the age of 16 Once a person has reached the age of sixteen, he or she is able to choose his or her preferred emotional and sexual partners. However, if it concerns a minor, parents are still able to exercise their parental authority, which allows them to supervise the minor's relationship. . In the context of rape Regardless of age, the applicable conditions of rape are fulfilled if a person commits an act of sexual penetration of any kind or any means on a person who did not consent (Article 375 of the Criminal Code). The law emphasizes, in particular, that consent is absent in the following two circumstances: . the act was forced by means of coercion, threat, surprise or cunning . the act was facilitated by an inadequacy or a physical or mental disorder on the part of the victim

5.3.5 Is self-defense or insanity a defense?

Yes, in accordance with the below:

. Irresistible compulsion There is no crime if the accused or accused person at the time of the facts was suffering from a mental disorder that invalidated his or her judgment or control over his or her actions or if he or she was compelled by a power he or she was unable to resist (Article 71 of the Criminal Code).

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. Legitimate self-defense As further elaborated upon in question 5.3.1, a perpetrator can claim that he or she acted in legitimate self-defense, if the conditions thereof are fulfilled.

5.4 Witness status

5.4.1 What is a witness's duty to testify honestly and completely?

If a witness does not testify honestly and completely, the rules relating to false testimony and perjury may apply.

False testimony means the punishable offense of falsifying the truth during an irrevocable testimony under oath, with fraudulent intent or with the intention to harm and that potentially causes harm (i.e., the false testimony could have an impact on the court's assessment).36 More precisely, false testimonies and perjury are punishable offenses based on Chapter V (Articles 215 to 226) of the Criminal Code. The convicts may face imprisonment and in certain circumstances, in civil cases, fines. The duration of the imprisonment depends on a variety of factors, such as the type of case and, in some cases, the severity of the punishment imposed on the convicted person.

Criminal law provisions in respect of false testimony and perjury do not apply to children who are younger than 16 or to persons who are related to the accused when the statements made by that person are in favor of the accused and are not made under oath.

5.4.2 Who may abstain from testifying in certain situations?

Persons bound by professional secrecy

In principle, if a person is summoned to testify as a witness, that person is obliged to comply with that request.37

There are certain categories of persons (such as, among others, doctors, pharmacists, midwifes, lawyers) who are bound by professional secrecy. Article 458 of the Criminal Code provides that a breach of professional secrecy will not be punishable when the professional secrecy is breached during a testimony in law (i.e., under oath). This Article 458, however, does not oblige the person who is bound by professional secrecy to testify under oath, but if they choose to do so, that breach will not be punishable. 38

In addition, Article 458-bis of the Criminal Code allows persons bound by professional secrecy (however, not lawyers who have received confidential information from their client that may incriminate their client) to inform the public prosecutor's office of domestic violence of which they are aware in the following circumstances:

(i) in cases of serious and imminent danger for the physical and psychological integrity of the protected person (i.e., victim of domestic violence) and the person bound by professional secrecy cannot protect that integrity alone or with the help of others (ii) in cases where there are indications of a serious and real danger that other persons will become victims of domestic violence and the person bound by professional secrecy cannot protect the integrity of those persons alone or with the help of others

However, Article 458-bis of the Criminal Code only allows those persons to inform the prosecutor's office, it does not oblige them to do so. Article 422-bis of the Criminal Code, which provides that anyone should give help to someone who is in great danger (without putting himself/herself or others in serious danger), will in any case continue to apply.

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In addition, Article 30 of the Criminal Code provides that any person who witnesses an attack against public security or the life or property of another person, is obliged to inform the competent public prosecutor of that fact.39

The legal exception to the professional secrecy may not exclude that any person who is bound by professional secrecy may become subject to disciplinary action. Therefore, those persons may often obtain advice within their professional organization as to whether they may testify and which details may be disclosed.40

The judge will eventually control whether the professional secrecy is a valid excuse for not having to testify.

The right not to incriminate oneself

The right not to incriminate oneself is a principle under Belgian law. This means that (i) a person cannot be forced to testify if that would incriminate himself/herself and, (ii) that a suspect cannot be interrogated under oath.41

5.4.3 What potential "excuses" can a witness raise to refuse to testify in a domestic violence action?

Measures are in place to protect witnesses who are reluctant to cooperate in the investigation for fear of retaliation against them or their families. In particular, this concerns partial or complete anonymity. Witnesses must meet specific conditions to qualify for these protections.

5.4.4 What is the impact of domestic violence on witnesses who are children?

Children who witnessed domestic violence can be called upon to testify (please see 5.4.5).

Criminal policy measures have been taken in order to identify the children in domestic violence cases and to ensure that children who are victims of domestic violence are recognized as separate victims.42 Though GREVIO notes that children are not always recognized as covictims by front-line services.43 These measures also seek to enhance the information collaboration between the criminal courts and the civil family and juvenile courts with respect to children, where such information may be taken into consideration when civil courts rule on custody and visitation rights.44

Furthermore, the responsibilities for dealing with child witnesses are divided between different sectors and regional authorities where certain initiatives have been taken on a regional level in order to enhance the collaboration between the different sectors.45 However, in its latest report, GREVIO urges the Belgian authorities to make it easier for child witnesses to access protection and support services and notes that certain improvements are needed for the assessment of the impact of domestic violence on child witnesses by child protection services (such as specific facilities for children in shelters).46

5.4.5 Can children be called upon to testify?

Yes.

Specific measures exist for questioning minors who have been victims or witnesses to certain felonies, which include audiovisual questioning (Chapter VII-bis of the Criminal Code). Furthermore, the minor has the right to be accompanied by an adult of his or her choice, except when the Prosecutor's Office or the investigating magistrate considers otherwise in a reasoned decision in the interests of the minor or in order to discover the truth. In addition, if a minor witnesses a violation of the integrity of a person (sexual offense, assault, etc.) and a recorded

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questioning has been conducted, the court may still consider that the minor's presence at the trial is necessary to establish the truth. In that case, the minor may conduct a video conference to testify to avoid confronting the suspect.

5.4.6 What is the effect of a child victim on the charges against the offender?

The fact that the victim is a minor constitutes an aggravating circumstance to the charge of assault and battery, which increases the penalties depending on the felony (Article 405-bis of the Criminal Code). Furthermore, pursuant to Article 405-ter of the Criminal Code, the minimum penalties for intentional corporal injuries and willful manslaughter (other than killing) will be higher if the aggravator is:

. the father, mother or other ascendants, or on the collateral line to the fourth degree . any other person who has authority over the minor . any person who has the child in his or her custody . a person who occasionally or habitually lives with the victim

5.5 Penalties and sentencing; penalty enhancements

5.5.1 What are the penalties and sentencing laws for first-time domestic violence offenses?

Domestic violence is established as an aggravating circumstance pursuant to Article 410(2) of the Criminal Code. This means that the penalty will be higher (and, in certain cases, may be doubled) if the perpetrator has committed an offense under Articles 398 to 405 of the Criminal Code against:

. his or her spouse . the person with whom he or she cohabits or has cohabited and maintains or has maintained a lasting emotional and sexual relationship

It is up to the judge to decide how these notions will be understood and taken into account in considering the circumstances of each case.

5.5.2 Are there criminal penalties?

Yes, Article 410 of the Criminal Code.

Yes, for intentional homicide (which does not qualify as murder) and intentional bodily harm, several standard, nonaggravated sentences exist. For the intentional homicide, the punishment is imprisonment for five to 10 years, if the beatings or injuries are: (i) inflicted intentionally but without intent to kill; and (ii) cause death. If these acts of violence were premeditated, the sentence is imprisonment for 10 to 15 years (Article 401 of the Criminal Code). For deliberately wounding or hitting a person the sentence is imprisonment for eight days to six months and/or a fine of EUR 26 to EUR 100 (Article 410 of the Criminal Code).47 If the violence is conjugal, the maximum penalty is increased to imprisonment of one year.

Furthermore, a perpetrator can be sentenced to two additional years of imprisonment on top of the above standard sentence, if the act was committed against a:

. spouse . person with whom the perpetrator cohabits or has cohabited and maintains or has maintained a lasting emotional and sexual relationship

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If the act had not constituted a crime, but only a misdemeanor, the minimum penalty would have only been doubled due to the above-mentioned aggravating circumstance of domestic violence.

In addition, the following general violent acts are also punishable:

. psychological violence is punishable if it constitutes: threats (Articles 329 and 330 of the Criminal Code); inhuman and degrading treatment (Article 417-bis); calumny and defamation (Article 443); and insults (Article 448)48 . sexual violence, including rape . forced marriage . forced abortion and forced sterilization . murder . torture and inhumane treatment . stalking

5.5.3 What is the result of a violation of an existing order for protection?

The violation of a temporary residence ban in cases of domestic violence is punishable by imprisonment for eight days to six months and a fine of EUR 26 to EUR 100 49 or one of these penalties only (the same sanction applies for violation of the initial ban ordered by the public prosecutor or the extension thereof ordered by the family court (see Article 5/1 and 5/2 of the Act of 15 May 2012 as amended by the Act of 5 May 2019)).

The infringement of the protective orders obtained on the basis of Articles 223 and 1479 of the Civil Code is, on the contrary, not criminalized. It is, however, possible to request an indemnity for the (additional) damages incurred due to the violation of the protective order.

5.5.4 What fines and other penalties are imposed besides incarceration and liberty restriction?

In the context of divorce, the judge must deny the perpetrator of domestic violence the alimony he or she may request from the victim, if the perpetrator committed one or more of the following acts of violence:

. rape . intentional assault and battery . administration, without intent to kill, of substances capable of causing death or serious damage to health . attempted murder . poisoning

Unlike in cases of less serious misconduct, the judge has no discretion if the partner committed any of the above acts of violence.

Furthermore, the automatic exclusion of the spouse guilty of violence against the spousal victim from entitlement to maintenance is always necessary, whether the acts were committed before or after the separation, or even after the divorce. Where the claimant is accused of domestic violence, the court may nevertheless award him or her a provisional pension, taking into account all the circumstances of the case, and thus bearing in mind the seriousness of the victim's complaint, the dilatory nature of the criminal proceedings, its chances of success and the urgency

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of the claim for the creditor who is destitute (Article 301(2)(4) of the Civil Code). If a provisional pension is granted in such a case, the court may make the granting thereof subject to the provision of a guarantee, which it determines and the terms of which it fixes (Article 301, § 2, paragraph 4 of the Civil Code). It will have to be reimbursed if the criminal offense for which the public action is initiated is deemed to be established.50

Domestic violence is taken into consideration for the refusal of the delegation of sums (Article 221 of the Civil Code). For this to apply, the spouse must be found guilty of one of the facts enumerated by the law, in other words a criminal decision must have been taken. It is also necessary, although the law does not state, that this decision is final. No account may be taken of a conviction that is the subject of an appeal or in respect of which the time limit for opposition, appeal or appeal in cassation is running.

5.6 Post-release restrictions

5.6.1 Does the law notify the victim of the offender's release from custody?

Yes, but only if the victim has requested to be involved in the procedure regarding the execution of the penalty through a "victim statement," in which the victim can:

. request to be informed about the decisions of the sentence enforcement court . communicate which conditions he or she considers appropriate to be imposed, in case the offender would be released early . request to be heard by the sentence enforcement court51

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6 Special issues

6.1 Battered woman syndrome

6.1.1 Can lawyers present evidence of battered woman syndrome or other domestic abuse as an affirmative defense to crimes that the battered woman has committed? (Note: Battered Woman Syndrome is accepted by courts in certain jurisdictions to show that battered women can use force to defend themselves and sometimes kill their abusers due to abusive and life- threatening situations.)

Yes, under specific circumstances.

According to Articles 416 and 417 of the Criminal Code, self-defense can be recognized under certain conditions whereby battery is no longer considered a criminal offense. The attack and the victim's response must happen in such a way that there is no possibility of resorting to public authorities, which makes the response the only way out. In situations where the conditions stated in Articles 416 and 417 of the Criminal Code are not met, the lawyer will have to prove the continuity of the domestic abuse that has led to battered woman syndrome to justify the victim's inability to consider any outcome other than defending themselves.

According to the joint circular COL 4/2006 from the Ministry of Justice and the College of Public Prosecutors regarding criminal policy with respect to intimate partner violence, in its revised version of 2015, the police must ensure that all relevant evidence is collected and seized (e.g., torn clothing, threatening note, weapon) and that photographs are taken of traces of blows or damage to movable objects or a building.

6.2 Domestic violence in the workplace

6.2.1 Can courts issue orders to protect employees suffering from domestic violence?

Belgian law does not have specific rules taking into account domestic violence or the impact thereof at the workplace.

6.2.2 Can departure be deemed "for good cause" if related to domestic violence?

Under Belgian law, the concept of "departure for good cause" does not exist. If an employee decides to unilaterally terminate their employment relationship, he/she will not get any benefits regardless of the reason of his/her departure (except in specific circumstances where the employee may claim that the termination is due to the employer's fault).

6.2.3 Can family members of domestic violence victims take reasonable leave to help the victim seek treatment or obtain help and services?

Potentially, yes. Thematic leave for domestic violence victims is not regulated under Belgian law but there is a possibility to take a care leave to help a seriously ill family member.

Care leave is a type of career interruption that allows employees to take a leave of absence for purposes of assisting a family member who suffers from a serious illness and who needs nursing. Employees are entitled to either a complete suspension of their employment contract or a 50% or

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20% reduction of their working time. During this period of leave, employees are entitled to an allowance through the national social security system. In order to be entitled to care leave, a number of strict conditions must be fulfilled and a specific procedure must be followed (see Articles 3 to 5 of the Royal Decree of 10 August 1998 introducing a right to career interruption for assistance or care of a seriously ill family member or relative and Article 6/1 and following of the Royal Decree of 12 December 2001 implementing Chapter IV of the Act of 10 August 2001 on the conciliation of employment and quality of life concerning the system of time credit, career reduction and the reduction of half-time work benefits).

In addition, employees are entitled to take unpaid leave of absence for compelling reasons, i.e., unforeseeable events that have no connection with the employment relationship as such, and that require the urgent and necessary intervention of the employee.

The following circumstances can be considered to constitute a compelling reason: accident or hospitalization of a person living with the employee or a first-degree relative; major damage to the employee's house; etc. The employee has the right to be absent for the period required to overcome the emergency, with a maximum of 10 working days per calendar year (see Collective Bargaining Agreement No. 45 of 19 December 1989 on leave of absence for imperial reasons).

6.3 Immigration

6.3.1 Does the law include provisions that are intended to prevent abusers who are Belgian citizens or permanent residents from using immigration laws to perpetrate domestic violence against their spouse?

No, Belgian law does not have specific provisions that prevent abusers from using immigration laws to perpetrate domestic violence.

Please note, however, that the Act of 15 December 1980 on access to the territory, residence, settlement and expulsion of immigrants provides that the Belgian authorities may refuse the entry to Belgian territory to an immigrant who is considered to jeopardize public tranquility and public order (Articles 3, 7 of the Act of 15 December 1980) and may recognize an expulsion decision taken against a foreigner by another EU member state, provided that such decision is justified by a serious and present threat to public order (Article 8-bis of the Act of 15 December 1980).

In addition, it is of note that this Act of 15 December 1980 protects some victims of violence against a withdrawal of their residence permit.

The right of residence may be kept in certain cases, among others, where particularly difficult situations require it. For example, when the family member demonstrates being a victim of violence in the family, as well as a victim of rape, attempted homicide or bodily harm while being in a partnership or marriage (Article 11, §2, alinea 4 and 42-quater, §4, 4° of the Act of 15 December 1980). The victim of these punishable acts must be able to demonstrate this by solid evidence.

However, this exception provided for by law does not apply to all victims of domestic violence.

6.3.2 If battered immigrants cooperate with law enforcement in domestic violence, can they obtain immigration remedies?

No, Belgian law does not have provision for immigrants who are victims of domestic violence and who cooperate with law enforcement authorities.

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However, it can be noted that if an immigrant is a victim of human trafficking within the meaning of Articles 61/2 to 61/5 of the Act of 15 December 1980 on access to the territory, residence, settlement and expulsion of immigrants, they can receive a temporary residence permit or a permanent residence permit, when collaborating with the competent investigating authorities, provided certain conditions as described in those provisions are met.

6.3.3 Does domestic violence law discuss asylum accessibility?

Under Belgian law, it is more the asylum law that discusses violence in general (without referring specifically to domestic violence) than the other way around.

In that respect, according to Article 36 of the Act of 12 July 2007 on reception of asylum seekers and certain other categories of immigrants, specialized institutions or associations providing shelter to vulnerable persons, including persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. These institutions cooperate with the Federal Agency for the Reception of Asylum Seekers and with private or public legal entities (partner) representing the agency in order to help vulnerable persons. The vulnerable persons will receive administrative, social and material assistance according to their specific needs under the supervision of the agency or the partner. Finally, the victims of violence are also assisted in submitting their applications for international protection.

In addition, the joint circular COL 4/2006 from the Ministry of Justice and the College of Public Prosecutors regarding criminal policy with respect to intimate partner violence, in its revised version of 2015, requires police services to inform the Foreign Office if they become aware of domestic violence when the victim is in Belgium on the basis of a temporary residence permit in the framework of family reunification (in accordance with Article 44/11/9 of the Act of 5 August 1992 related to the police function). The police services have to communicate information related to the identity of the persons concerned, the nature of the violence (psychological, sexual, physical), the existence of evidence (photographs, witnesses, medical certificates), the existence of a care facility by an association or a shelter, the existence of children and whether the perpetrator is known or not known for facts of public order.

In that way, the Foreign Office will be informed of the intimate domestic violence and will be able to adopt measures to protect victims of domestic violence between partners according to Article 42- quater § 4, 4° and Article 11 §3, third alinea of the Act of 15 December 1980.

6.4 Armed forces

6.4.1 Can a victim seek a military protective order if the abuser is in active military?

No, Belgian law does not provide specific rules or a specific military protective order aimed at protecting the victim in cases where the abuser is in active military.

However, it is worth noting that victims of domestic violence can seek protection orders through criminal, civil and administrative law, as described above.

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6.5 Child custody and child/spousal support 6.5.1 Do judges follow special rules to determine custody or visitation of children in domestic violence cases?

Not specifically. In the event of conflicting separations, Article 374 of the Civil Code (which has been amended by the Act of 18 July 2006 providing for equal residency of children whose parents are separated and governing enforcement of residency) obliges the competent judge to prioritize shared custody for children unless they are convinced that the concrete situation does not allow for shared custody. This act does not mention domestic violence. In the event that one parent opposes the judge's decision of shared custody for specific reasons, the judge needs to prove the existence of serious contra-indications.

In addition, it can be noted that Article 387-ter of the Civil Code allows coercive measures when one of the parents does not comply with judicial decisions concerning the residency of children or the right to have contact with them.

However, in certain cases, the judge can decide, at the request of the public prosecutor, to deprive one of the parents, totally or partially, of his/her parental authority in order to protect the children (see Act of 8 April 1965 on the protection of young people, the care of minors who have committed an act classified as an offense and the reparation of the damage caused by this act). This act does not refer specifically to domestic violence but allows the judge to deprive parents of their parental authority in certain situations, in particular when the mother or the father who, by poor treatment, abuse of authority, gross misconduct or serious negligence, endangers the health, safety or morality of his or her child.

6.5.2 Can the judge consider the testimonies of the other spouse and the children when determining custody?

Potentially yes. In accordance with Article 374 of the Civil Code, the judge has to take into account the "concrete circumstances of the case and the interests of the children and the parents" when deciding on child custody (or the right to have contact with the child).

In that respect, it is worth noting that the joint circular COL 4/2006 from the Ministry of Justice and the College of Public Prosecutors regarding criminal policy with respect to intimate partner violence, in its revised version of 2015, puts in place a framework allowing the exchange of information between police officers, judges responsible for family and juvenile cases and judges responsible for criminal cases. This has led to a system that allows civil courts to rule on custody and visitation rights while taking into account violence even if there is no prosecution. In that context, when there is a complaint motivated by violence in the couple or during a police intervention at the scene of the violence and children are involved, those children can be registered in a public prosecutor's database as a "child in danger," which enables the civil judge to access this information in order to make the right decision for the child.

However, despite this system, GREVIO notes in its report that family courts tend to disregard the situation of children who witness violence during divorce and separation proceedings.52

6.6 Housing rights of domestic violence victims

6.6.1 Does the law include any barriers to prevent landlords from forcing a tenant to move out because they are victims of domestic violence?

No. Belgian law does not provide specific provisions preventing landlords from forcing a tenant to move out because they are victims of domestic violence.

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However, Belgian law provides for certain requirements that must be met by the landlord to terminate a lease agreement before its expiry date (see Article 3, §4 of the Belgian Act of 20 February 1991 on rental leases).

6.6.2 Does the law allow a tenant to terminate his/her lease early due to domestic violence?

No. Belgian law does not contain specific provisions allowing the tenant to terminate his/her lease agreement early due to domestic violence.

6.6.3 Can an order exclude the abuser from the residence?

Yes. See above on the temporary residence ban/short-term ban.

In addition, in the event of rape, assault and battery or poisoning or attempt to commit these criminal offenses in the context of a separation of spouses or legal cohabitants or in the context of a divorce, the Family Court may order, as part of urgent or provisional measures, the enjoyment of the common residence to the victim (see Articles 223 and 1479 of the Civil Code and Articles 1253-ter/5 and 1280 of the Judicial Code).

6.6.4 Can abusers be forbidden by court orders to alienate or mortgage the property in his/her name if it is the family domicile?

Yes. In accordance with Articles 223 and 1479 of the Civil Code and Articles 1253-ter/5 and 1280 of the Judicial Code, the family court may, if the harmony between the spouses or the legal cohabitants is seriously disrupted, prohibit one of the spouses or one of the legal cohabitants, for a period of time to be determined by the court, to alienate or mortgage the property, whether personal or common, without the consent of the spouse/legal cohabitant. This measure can be adopted as part of urgent or provisional measures in the context of a separation of spouses or legal cohabitants or in the context of a divorce.

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Endnotes

1 Please note that the list is not exhaustive. The fines mentioned in this table must be multiplied by eight (corresponding to the current additional decimals applicable to criminal fines in December 2020). 2 Please note that this list is not to be regarded as exhaustive. 3 Please note that this list is not to be regarded as exhaustive. 4 Please note that this list is not to be regarded as exhaustive. 5 Please note that this list is not to be regarded as exhaustive. 6 Accessible at: http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=2020042707&table_name=loi. 7 Accessible at: https://equal.brussels/fr/publications/plan-bruxel loi s-de-lutte-contre-les-violences-faites-aux-fe mm es/. 8 Accessible at: http://docs.vlaamsparlement.be/pfile?id=1613238. 9 See the Belgian state report received by GREVIO on 18 February 2019 accessible at: https://rm.coe.int/state-report- belgium/pdfa/168093141c. 10 GREVIO, "Baseline Evaluation Report Belgi um," Istanbul Convention, accessible at: https://rm.coe.int/grevio-report-on- belgium/16809f9a2c. 11 For instance, see seventh report accessible at: https://igvm-iefh.belgium.be/sites/default/files/downloads/7%C3%A8me%20rapport%20CEDAW%20BE_fr.pdf 12 Accessible at: https://igvm-iefh.belgium.be/sites/default/files/downloads/7%C3%A8me%20rapport%20CEDAW%20BE_fr.pdf 13 See https://igvm-iefh.belgium.be/en. 14 https://igvm-iefh.belgium.be/sites/default/files/88_-_stop_violence._nap_2015-2019.pdf 15 Civ. Bruxelles, 24 November 1999, cité in J.-P. Masson, G. Hiernaux, N. Gallus, N. Massager, J.-Ch. Brouwers et S. Degrave, "Droit des personnes et de la famille," Chronique de jurisprudence, 1999-2004, Coll. Dossiers du J.T. no 6, Bruxelles, Larcier 2006, p. 240. 16 J.P. Ninove, 3 May 2012, R.G. No. 12A356, inédit. 17 https://www.actualitesdroitbelge.be/legislation/code-civil/code-civil---cohabitation-legale/article-1479-du-code-civil 18 http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn=2012051518&table_name=loi 19 http://poems-project.com/wp-content/uploads/2015/02/Belgium.pdf 20 http://poems-project.com/wp-content/uploads/2015/02/Belgium.pdf 21 https://www.actualitesdroitbelge.be/legislation/code-civil/code-civil-et-code-judiciaire---divorce/article-1254-du-code-judiciaire 22 http://poems-project.com/wp-content/uploads/2015/02/Belgium.pdf 23 https://www.om-mp.be/sites/default/files/u1/col_18_2012_fr.zip 24 https://www.actualitesdroitbelge.be/legislation/code-civil/code-civil---cohabitation-legale/article-1479-du-code-civil 25 See Written Question No. 7-217 of 28 November 2019 at the Senate and the Written Response dated 21 April 2020 (in French) available here: https://www.senate.be/www/?MIval=/Vragen/SVPrint&LEG=7&NR=217&LANG=fr&_sm_au_=iVVPftTdQ0sT0VH6KkM6NKsW8f6TG 26 https://www.standaard.be/cnt/dmf20191223_04780059 27 https://www.rtbf.be/info/belgique/detail_violences-conjugales-il-faut-faire-plus-et-mieux?id=10078849 28 https://www.actualitesdroitbelge.be/legislation/code-civil/code-civil---cohabitation-legale/article-1479-du-code-civil 29 https://justitie.belgium.be/nl/themas_en_dossiers/wat_moet_u_doen_als/slachtoffer/schadevergoeding/financiele_hulp/opzettelijke_g ewelddaden/voor_wie (in Dutch) and https://justice.belgium.be/fr/themes_et_dossiers/que_faire_comme/victime/indemnisation/aide_financiere/victimes_dactes/beneficiair es (in Fench). 30 F. Verbruggen and R. Verstraeten, "Strafrecht & Strafprocesrecht," part II, Maklu Uitgevers, Antwerpen/Apeldoorn, p. 336. 31 Belgium report to GREVIO, 2019, p. 45-46. 32 F. Verbruggen and R. Verstraeten, "Strafrecht & Strafprocesrecht," part II, Maklu Uitgevers, Antwerpen/Apeldoorn, p. 336. 33 Cass. 14 October 2003, R.C.J.B. 2004/4, p. 405. 34 F. Verbruggen and R. Verstraeten, "Strafrecht & Strafprocesrecht," part II, Maklu Uitgevers, Antwerpen/Apeldoorn, p. 341-343. 35 To be multiplied by eight taking into account the additional decimals applicable in December 2020. 36 S. Van Overbeke, "Moreel element en mogelijke benadeling bij valse getuigenis: de waarheid in de branding," noot bij Cass. 24 October 2007, R.W. 2010-2011, p. 280-284; Cass., No. P. 93.0276.F of 9 June 1993, Arr. Cass., 1993, 573; Pas., 1993, I, 558. 37 A. Van Oevelen, et J. Rozie, S. Rutten, "Zwijgrecht en spreekplicht in het licht van het beroepsgeheim en de discretieplicht" in Zwijgrecht versus spreekplicht, Intersentia, 2013, p. 73. 38 A. Van Oevelen, et J. Rozie, S. Rutten, "Zwijgrecht en spreekplicht in het licht van het beroepsgeheim en de discretieplicht" in Zwijgrecht versus spreekplicht, Intersentia, 2013, p. 73. 39 L. Huybrechts, "De wet tot verbetering van de aanpak van seksueel misbruik en pedofilie binnen een gezagsrelatie," R.W., 2011- 2012/26, p. 1150-1166. 40 L. Huybrechts, "De wet tot verbetering van de aanpak van seksueel misbruik en pedofilie binnen een gezagsrelatie," R.W., 2011- 2012/26, p. 1150-1166. 41 A. Van Oevelen, et J. Rozie, S. Rutten, "The sound of silence. Het zwijgrecht en het nemo tenetur-beginsel in strafzaken. Een historisch en rechtsvergelijkend overzicht" in Zwijgrecht versus spreekplicht, Intersentia, 2013, p. 37.

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42 Belgium report to GREVIO, 2019, p. 41. 43 GREVIO report on Belgium, https://rm.coe.int/grevio-report-on-bel gium/16809f9a2c, paragraphs 133-136. 44 Belgium report to GREVIO, 2019, p. 41; GREVIO report on Belgium, https://rm.coe.int/grevio-report-on-bel gium/16809f9a2c, paragraphs 146-150. 45 GREVIO report on Belgium, https://rm.coe.int/grevio-report-on-bel gium/16809f9a2c, paragraphs 133-136. 46 GREVIO report on Belgium, https://rm.coe.int/grevio-report-on-bel gium/16809f9a2c, paragraphs 133-136 and paragraphs 146-150. 47 The fines are multiplied by the current additional decimals (opdeciemen), which means that at the moment every fine in the Criminal Code should be multiplied by eight to calculate the actual fine that is due. 48 Council of Europe, 2020. GREVIO Baseline Evaluation Report Belgium, p. 45-46. 49 The fines are multiplied by the current additional decimals (opdeciemen), which means that at the moment every fine in the Criminal Code should be multiplied by eight to calculate the actual fine that is due. 50 J.-C. Brouwers, et A. Duelz, Q. Fischer, "Chapitre 4 - La pension alimentaire après divorce" in Le droit du divorce, Bruxelles, Éditions Larcier, 2017, p. 241-268. 51 https://www.slachtofferzorg.be/gerechtelijke-procedure-uitvoeri ng-van-de-stra f-de-i nterneri ng 52 GREVIO's (Baseline) Evaluation Report on legislative and other measures giving effect to the provisions of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) Belgium, adopted on 26 June 2020, point 148.

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Fighting Domestic Violence: Belgium 1