Enforcement mechanisms

The key concepts of accuracy, coherence and effectiveness can be applied to the entire chain of sanctions. Within this chain four steps can be distinguished: detection and enforcement by the authorities, identification and definition of punishable conduct; determination and details of the sanctions; determination and assessment of the specific sanction; and the execution of the sanction. The following overview presents the research questions addressed with regard to each of these stages. There may be an overlap between the various sub-lines of research.

1. Detection and definition of punishable conduct

With a view to the protection of public policy the authorities have both the right and the obligation to shape society. The law is considered to be the appropriate control mechanism in this respect. The law serves as a means to preserve the social norms and values that are prevalent in society at a given moment.

The concept of “public policy” is a multi-usable concept in the law. For instance, there is the question as to the factors on which the legislature relies to determine whether or not a certain form of conduct can be designated as punishable. It is not always very clear to what exactly the concept of public policy refers. In other words, presenting a clear point of view regarding the law in general and thus the values that need to be protected are absolutely necessary for accurate legislation. Therefore a meticulous definition is crucial for all the disciplines the research group deals with.
Mapping the relationship between the enforcement of administrative law and criminal law is required. Therefore the question arises which sanctions are the most suitable to impose compliance with the rules in the context of social dumping and social competition.
If a choice is made for enforcement by criminal penalties, one could wonder what the scope is of international influences (e.g. Increasing European rules and regulations allowing the States (or sometimes forcing them) to create criminal violations). Then there is the question as to how preliminary investigations can be organised as accurately as possible. Indeed, the specification of the role of the examining magistrates is still a tricky matter. The latter issue overlaps with the research line “legal protection” – sub-line of research “proper administration of justice”.

2. Determination and details of the sanction

The legislature is particularly active in creating new criminal provisions and aggravating circumstances, thus potentially jeopardising the coherence, effectiveness or other aspects of the system. The research will proceed from the question of which violations of certain core values are being controlled and whether the protection afforded by the measures meets the quality requirements mentioned above. Are the current restraints provided within the framework of criminal or civil law sufficient to protect the core values, is there room for decriminalisation/de-penalisation, is the framework sufficiently transparent…? The term “core values” refers to specific moral rights (e.g. physical, psychological and sexual integrity,…), property rights or other types of rights.
In this context, what is the role of private law enforcement and civil and disciplinary sanctions, and how can private law fulfil a law-enforcement function? Is extra-contractual liability law a useful tool to complement criminal law? Can the sanction of nullifying a contract due to conflict with public policy play a role in this regard? Is it advisable to assign a more punitive character to the sanctions specified in contract law?
Is a thorough codification of the ethical rules of the legal professions necessary or, on the contrary, damaging ? What is the influence of other regulations (e.g. competition law, consumer rights, money-laundering legislation, fundamental rights, judicial law, social law,…) on the ethics of members of the legal profession?
When determining and defining punishable conduct the legality principle must be complied with. Given this principle, the question is whether criminal proceedings are an appropriate manner to punish social crimes, especially in view of the general and vague obligations often used in this respect, obligations which quite often are prescribed by European law?
More in general it is also imperative that in the determination of punishable conduct fundamental human rights play a primary role. This raises, for instance, the question as to what extent the frequent offence of “hindering supervision” in social law is compatible with the right to remain silent, as guaranteed, inter alia, by Article 6 ECHR.

2.1. Determination of the offender

Contrary to criminal law where material imputation is the rule, social law often uses the system of legal imputation in which “the employer, his appointees or mandatories” are designated as offenders. This ultimate responsibility of the employer and his entourage is based on the fact that the employer is the owner of the means of production. Is this primary responsibility of the employer still sustainable in today’s society in which every person’s responsibility is increasingly emphasised and new enterprise structures (such as cross-border parent companies and holding companies) emerge which make it increasingly difficult to determine who exactly has the main responsibility? Furthermore, there is the question as to what extent the autonomy of criminal law can be applied to social law. As regards the criminal liability of the legal entity we find that in the case law there is a tendency to objectify criminal liability and this despite the principle of guilt-based criminal law. Therefore the question arises how broad the lines of guilt-based criminal law are.

2.2. Determination and details of the sanctions

The following research questions are dealt with:

Which criteria determine an accurate framework of sanctions?
When should priority be given to alternative “sanctions”, such as mediation?
How accurate are civil sanctions such as suspension, nullity and annulment of the agreements, contractual and extra-contractual liability.
When should priority be given to administrative sanctions and how are these sanctions related to other sanctions?
What is the best way to control deviant behaviour by a legal professional? How do disciplinary law, social law, criminal law and civil liability relate with regard to the punishment and remediation of deviant conduct?

2.3. Determination and assessment of the sanctions

The following research lines will be dealt with:

What is a sanction (e.g. with a view to verifying the applicability of the guarantees of the ECHR)?
What is the power of review of the court that is asked to impose a certain sanction? Does the court have full jurisdiction to review, or is it only marginally authorised to review ?
When is a sanction proportionate? What are the criteria, both from the perspective of the legislature as from that of the magistrate and the legal subject? To what extent can decisions (e.g. the prohibition to submit certain documents) or sanctions (e.g. suspension) by the disciplinary authority be controlled by or imposed on the courts?
Which conditions must be met in order to achieve optimal sentencing? These conditions could include mapping the cross-fertilisation between the various actors in criminal law and determining whether the rules regarding the acceptance of mitigating circumstances and recidivism are still effective. Problems relating to the consistency (or inconsistency) of the Belgian sentencing system also play a central role. This is because judicial discretion inherently contains the risk of arbitrariness in the determination of the punishment. Therefore it is necessary to investigate why consistency in sentencing is a goal worth pursuing. Accurate and effective sentencing also includes proper motivation of the punishment and the level of the sentence. It will undoubtedly also be necessary to consider the psychological angle. Examining the perception of the convicted party with regard to the ruling will play a crucial role in this regard.

3. Execution of the sanction

The following research lines will be dealt with:

Which requirements should a sanction fulfil in order to be effective in terms of execution?
In their rulings, may the courts that are competent to impose sanctions also be involved with complications relating to the execution?
Which circumstances determine an optimal execution of criminal penalties?