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The policy approach of nuisance problems in public space in Belgium and the
Netherlands

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 1

The policy approach of nuisance problems in the public space in Belgium and The
Netherlands

E. Devroe1

Table of contents:

Introduction

Chapter 1: Occasion for the fight against nuisance through administrative

enforcement
1.1. Nuisance issue no longer in the shadows
1.2. The empty barrels of enforcement

Chapter 2: The body of statutory instruments in Belgium

2.1. Act dated 13 May 1999 pertaining to the Introduction of Administrative Penalties
2.2. Act dated 17 June 2004 in amendment of the New Local Government Act
2.3. Revised Act dated 20 July 2005

Chapter 3: Belgian implementation in practice

Chapter 4: The legislator’s seven league boots

Chapter 5: The body of statutory instruments in The Netherlands

5.1. The PPS Settlement Act
5.2. The „Minor Nuisances at Municipal Level Act‟
5.3. The Administrative Fines for Wrong Parking and Other Minor Road Traffic
Offences Act
5.4. Critical observations and conclusions

Chapter 6: The cascade of competence shifts

Chapter 7: From decentralisation across custom-tailored to standardisation

1 Assistant Professor in Criminology, Department of Criminology, Free University of Brussels, and Head of the
Research and Development Department, Criminal Justice Policy Service, Ministry of Justice, Belgium.
2
 3

Introduction

This paper outlines and comments on the response in terms of the policies in place and in
the process of being rolled out in Belgium and The Netherlands to counteract nuisance
offences in the public space.

What exactly is nuisance? Most policy papers describe these issues as typical problems
of insecurity. But equally, tensions in the public space which are nothing to do with
security or criminality, can occasion nuisance (DEVROE, SCHEERS, 2002). In that case,
the issues concerned much sooner tend to be issues of quality of life, of social safety, in
which quality of life is also understood to include mobility, well-being, etc…(DE
PAUW,HEENE,2006). The Belgian authorities have defined nuisance as „largely
individual, material behaviours that may disrupt the harmonious course of human
activities and which may impede the quality of life of local residents in municipalities,
quarters, streets, in a way that oversteps the normal pressures of social life‟. The
Minister for Home Affairs considers nuisance to be a mild form of disturbance of the
public peace, safety, health and cleanliness.

In my opinion, three elements serve to determine and shape the concept of nuisance:

The public nature of the location where the phenomenon occurs. The „public‟
notion stresses the fact that these are events of a „community nature‟, i.e. in the
way they manifest themselves in the expression of a wide number of similar
interests (HACHE,VANDE LANOTTE,1991). Public order issues invariably stand
in reference to threats of the order „for the authorities‟. To date, the
enforcement policy of local councils was limited to this „enforcement of the public
order sensu lato‟. But this even this „public order‟ concept, with its three
components of the public peace, public safety and health, has not been defined
by Parliament to conclusive effect. Nuisance is clearly to do with the public
nature of the location. After all, the behaviours at issue do not go on to give
grounds for nuisance when they occur in a location where they can be observed
by other people (visualisation) before going on to be perceived as objectionable,
annoying or threatening. Needless to say, the public space in towns and cities has
never been homogenous. Between the various urban layers are networks,
associations, communities (PONSAERS,EASTON,2007) that cross the boundaries
of local quarters and neighbourhoods. Highly specific problems, different from
those of „public order‟ or „public peace‟ are making their entrance. Which is why a
specific policy response to nuisance has been generated.
The citizen is particularly relevant in demarcating problems of nuisance. Which is
why the way in which the concept of nuisance is given meaning and substance to a
considerable extent goes hand in hand with citizens‟ tolerance threshold
(RAAYMAKERS,VAN HOOF, e.a., 2001). Nuisance is a typical offence that gives
 4

grounds for complaints and is that which is subjectively designated as such by

the citizen.
In addressing nuisance issues, the authorities need to play a role. For, it is the
duty incumbent
on the authorities to ensure the right to safety for all. The view of safety and
security as a basic right is gaining increasing support in this sense
(RIMANQUE,2002).

The fact that the authorities have stepped up their focus of attention for these issues
in recent years goes unquestioned. Even though ten years ago, nuisance was also a
reality, yet eliciting little in the way of statutory initiatives to combat the problems. In
both countries, the byword of the day was to condone. Obviously, condoning should not
be borne out of opportunist motives (acceptance tolerance, indifference, powerlessness)
(VAN DE BUNT,LEEUW,1995) and the response to various forms of nuisance should
have the hallmarks of a considered policy (DENKERS,1990).

Whether or not such a policy is to be steered by the federal authorities may be open to
discussion. Why should the federal authorities steer policy on behalf of local councils?
Are residents and various community groups keen to see nuisance addressed as part of
an approach aimed at controlling and managing the problems or do they prefer to turn a
blind eye to things they are not really bothered by? Or are citizens only keen to see
their own problems resolved, meting out punishment to others whilst they themselves go
with impunity? Policymakers are seeking to „control‟ the nuisance issue to bring down the
objective sense of insecurity and to see the subjective feelings of insecurity take a
drastic plunge. A genuine nuisance „policy‟ should go further than is set out under a
statutory act that puts in place arrangements for the suppression of the problem. On
the one hand, the authorities act as a facilitator in local suppression efforts, whilst on
the other hand local councils need to be sure sufficient provisions are in place to
forestall offences in a preventive sense2.

This paper focuses on the characteristics of the Belgian and Dutch nuisance policies in
place. The paper‟s structure comprises five areas of focus.

In Chapter 1, we look at who caught the attention of policymakers. What was the
immediate occasion for various bills to be introduced to counteract nuisance? This
chapter also discusses the issue of enforcement deficiency. The second chapter
outlines the statutory instruments available in Belgium. Chapter three provides further
insight into the application of administrative penalties at local council level in the Belgian
setting. Chapter 4 hones in on the Belgian hyperlexia and the relationship between the

2 For instance, there is little point in punishing the „polluter‟ if the local council fails to provide litter bins or
containers for people to deposit their litter in, and there is little point in continuing to write out fines for wrong
parking if manifestly insufficient parking spaces are provided.
 5

penal approach and the administrative-judicial approach, whilst also raising the question
as to whether the existing statutory diarrhoea is not needlessly complicating concrete
efforts to crackdown on nuisance. Chapter five sets out the statutory instruments
available in The Netherlands3. Chapter six outlines the shift of competences within and
outside of the criminal justice pyramid and its desired and undesired side effects.
Finally, Chapter seven examines (6) the extent to which federal nuisance policy has led
to decentralisation and custom-tailored statutory instruments for the benefit of local
councils and/or standardisation. This Chapter also deals with the Belgian safety and
prevention contracts which continue to be aimed at the avoidance of nuisance.

Chapter 1: Occasion for the fight against nuisance through administrative

enforcement

1.1. Nuisance issue no longer in the shadows

Who initiated the focus of attention on the part of policymakers for nuisance? Was it
the authorities themselves, was it the citizen or did the clamour for more local
autonomy prove the deciding factor?

In Belgium, the sense of urgency to counteract nuisance was actuated4 by the results of
the 1998 Safety Monitor5 which showed the concerns held out by the population to
crystallise to a very significant extent around minor criminal offences or events which
are not even misdemeanours under criminal law but which are nonetheless perceived to
be highly annoying and disagreeable6. Moreover, so it was promised, a repressive
statutory repertory to counteract nuisance would translate itself in policies with a
greater focus of attention for the phenomenon of organised crime as magistrates would
be relieved from duties attending to petty crime, to find themselves more able to focus
on serious forms of criminality. The then Belgian government coalition agreement
(Federal Safety and Detention Plan7) prioritised tackling nuisance8, expressing the need

3 This Chapter was written by P.A.M. Mevis, Professor of Criminal (Procedure) Law, Erasmus Universiteit
Rotterdam, The Netherlands.
4 See: Wetsontwerp tot invoering van de gemeentelijke administratieve sancties, memorie van toelichting, (Draft
Bill pertaining to the Introduction of Municipal Administrative Penalties, Explanatory Memorandum), Belgian
Chamber of Deputies, 1998-1999 regular session, 3 March 1999, 2031/1-98/99, p. 13.
5 The Safety Monitor was designed in 1997 by the scientific team of the Steunpunt (the Afdeling
Politiebeleidsondersteuning ((¨Policing Policy Support Dept.)) of the then Algemene Politiesteundienst ((General
Police Support Service))) and administered for the first time. In 1998, the exercise was repeated. Currently, the
Belgian Safety Monitor is administered within the federal police force.
6 However, it is no more than normal that if the Monitor (for scientific reasons) only inquires into a limited
number of offences which effectively largely go to make up „minor‟ disruptive crime in the public sphere, the
responses to the questionnaire yield the type of results outlined in the Explanatory Memorandum.
7 The “Federaal Veiligheids- en Detentieplan” (Federal Safety and Detention Plan), Belgian Senate and
Chamber of Deputies, 1999-2000 session, 13 June 2000, 2-461/1 (Senate), DOC 50 0716/001 (Chamber), 144p.
8 Since the Wet op de Geïntegreerde Politie op twee niveaus 1998” (1998 Integrated Police at Two Levels Act)
and the “Federal Safety and Detention Plan”, safety and “nuisance enforcement” have become a top priority.
 6

for a swifter response to offences. With the safety and security issue remaining firmly
on the political agenda as a matter of priority since the Octopus reform, Parliament has
been given increasing leeway to make punishable all manners of behaviour 9. The rise in
the amount of statutory laws and regulations with specific penalty clauses, required a
tit-for-tat enforcement policy.
This fact, combined with the finding that the way in which the criminal justice system
traditionally dealt with offences through the public prosecution service, the courts and
in terms of the due execution of sentences, is associated by most with judicial backlog
and inefficient methods of operation, justifies the institution of new procedures and
instruments to uphold the rules of law and to administer punishment accordingly. A
scientific analysis of all phenomena described by police services as „locally bound
priorities‟ in the first zonal safety plans revealed „nuisance‟ to be of overriding
importance (DEVROE,KEPPENS,2004). Add to this the call from local councils for an
appropriate enforcement repertory enabling them to deal with disrupting forms of
behaviour on a local level in a administrative-judicial manner and the case for the need
for a statutory repertory outside of traditional criminal justice procedures has been
duly argued.

Obviously this raises the question, which decidedly remains a moot point, as to whom
determines what type of behaviours should come under the umbrella term of „nuisance‟
and which do not (DEVROE,2003)? Has the statutory delineation of nuisance offences
not been informed in an unduly narrow sense by the options for settlement available to
local councils? After all, the revenue engendered by this „tit-for-tat‟ policy entirely
benefits the local councils. Has too little attention gone out to the way in which the
concept of nuisance has been given meaning and substance? As emerges from the above,
the administrative enforcement was largely prompted by the so-called enforcement
deficiency. But does such a thing really exist? And is the choice whether or not to label
a certain type of behaviour as nuisance not invariably a subjectively ideologically biased
choice? Are the offences which the authorities are keen to crack down on also the kind
of offences which residents loose sleep over?

1.2. The empty barrels of enforcement

The definition of insecurity is becoming wider in scope, with the authorities expected to
bring to bear increasing efforts. Available capacity on the part of the criminal justice
system however remains unaltered, which means we are facing an enforcement
deficiency. The hyperlexia on the one hand and the lack of instruments to enforce new
rules of law on the other hand, serve to foster this enforcement deficiency. Which in
turn results in saturation point being reached at local public prosecutors‟ offices,

9 Such as court injunctions banning individuals from entering specific streets, making curb crawling a
punishable offence in certain areas, the statutory mushrooming of environmental health legislation, etc. …
 7

unfamiliarity with an increasing body of regulations, and limited available capacity10 to

tackle nuisance cases. The enforcement deficiency is driving calls for more enforcement
and constitutes occasion for a more repressive definition of an efficient safety policy.

The concrete occasion for the statutory nuisance regulations in Belgium was this very
enforcement deficiency. In March 1999, just before the government‟s term of office
came to a close, the former ministers of Justice and Home Affairs lodged a draft bill
intended to give local councils more administrative elbowroom to effectively conduct
local safety policies. A new element in this proposed legislation was that it gave local
councils the opportunity to also determine „nuisance issues‟ on a local level under
municipal byelaws and to punish such offences locally under an administrative system (a
system based on fines). Prior to this, local councils already had the authority to issue
municipal byelaws and to enforce said byelaws by way of politiestraffen (sentences
pronounced by so-called Police Courts which are criminal justice courts) . However, the
local councils complained that many of the „offences‟ brought forward by them, more
often than not were dismissed and dropped by the judicial authorities as „not important‟,
whilst also drowning in the overall red tape of criminal justice processing. Local public
prosecutors offices neither showed any intention of prosecuting all of these “minor
offences” nor did they have the required capacity to do so. The result was that local
councils were unable to duly enforce their byelaws in a concrete sense, which caused
some citizens to feel some offences went with “impunity”. As such, many nuisance cases
slipped through the traditional criminal justice system unpunished, which in turn sparked
an enforcement deficiency. Which means local councils did not have any genuine or
effective instruments to effectively conduct a local safety policy.

The draft bill governing municipal enforcement was intended to remedy these „hiatuses‟
in the existing reality. The Raad van State (Council of State) was petitioned, on the
grounds of urgency, to return its advice on the proposed draft bill11 within three days.
The draft bill pertaining to the Introduction of Municipal Administrative Penalties was
approved. On 10 June 1999, the Act was promulgated in the Belgian Law Gazette. On 20
June 1999, the Act came into operation. As a result of the introduction of this Act,
local mayors were now also enabled to issue byelaws against cases of „public nuisance‟. As
a body, municipal assemblies were given the power to introduce a number of offences
under local police regulations which were open to be punished by administrative

10 This is largely a lack of policing capacity. The police reform (Integrated Police at Two Levels Act, October
1998) prompted a very expensive police force, in which policing capacity can only be deployed if and when
strictly necessary.
11 The fact that this particularly short reflection time did not go down well with the Raad van State (Council of
State) is hardly surprising. In its advice, the Council literally stated that “although the grounds of urgency are
duly motivated, it is to be regretted that the Legislation Section only had three days to issue (its) advice on such
an important draft bill” In: Advice from the Council of State to the Draft Bill pertaining to the Introduction of
Municipal Administrative Penalties, Explanatory Memorandum, Belgian Chamber of Deputies, 1998-1999
regular session, 3 March 1999, 2031/1-98/99.
 8

penalties, i.c. pecuniary fines. The introduction of a new article in 119bis, enabled local
councils to “impose administrative penalties for offences against their regulations and
byelaws, unless such had already been provided for under statutory Acts, Decrees of
Edicts”. In a concrete sense, this meant that only those types of behaviour for which
neither the federal nor the regional Parliament had provided penalties, were open to be
settled in application of administrative penalties. The local councils‟ autonomy was
therefore limited in this sense. The municipal assemblies would determine for
themselves which administrative penalties they could impose for breaches of their
municipal regulations and byelaws. There was no depenalisation. The requirement was
that the punishable behaviour be different from those behaviours detailed under
criminal law and the criminal justice settlement of municipal byelaws and regulations
continued to stay in place.

With the Act, a new statutory instrument made its entrance in the Belgian legal order:
local councils are able to crack down on „petty‟ crime on their territory in a swifter and
more efficient manner, as well as certain breaches of the public peace, safety, health
and cleanliness regulations and some forms of public nuisance. The Act also brought with
it a shift from regular criminal law to administrative law for well-specific offences. The
penalties are referred to as „administrative‟ penalties because they are imposed in the
first instance, not by a court of law, but by an “appointed civil servant”12. This
opportunity to settle matters in an administrative sense created an effective municipal
enforcement law in response to nuisance.

In a practical sense however, this statutory instrument proved an empty barrel. As long
as no depenalisation of certain offences was forthcoming, and too many incriminations
were therefore rendered punishable under statutory decrees or laws, local councils did
not have much leeway to redesignate forms of nuisance which they could include in their
local byelaws or regulations. In addition, offences were required to be established by
police officers, whose capacity – following the police reform -, clearly had to be put to
good use elsewhere. Which meant local councils were left without an enforcement
instrument and citizens were left with a sense that certain offences went with impunity.

We can ask ourselves whether the discourse followed by Parliament to justify the
system of administrative penalties effectively tallied with the situation at grassroot
criminal justice level?
Did such a thing as an enforcement deficiency actually exist? Scientific research
conducted by Ghent University commissioned by the King Baldwin Foundation shows that
not all queried citizens experienced an enforcement deficiency. Drawing on panel
discussions and individual interviews, this research listened out intensively to what

12 These are civil servants who are appointed to serve this office by the local authority” (municipal or
provincial).
 9

citizens had to say on the topic. The results show that some citizens attribute the
authorities with a less sizeable role and are themselves keen to help remedy unsafe or
disagreeable situations (DE WREE,VANDER BEKEN,PONSAERS,2006). The authors
named local neighbourhood schemes as a typical element in attempts to raise citizens‟
own safety, and an example of how to work at furthering safety without involving the
authorities. On the other hand, the cause of this enforcement deficiency cannot be
unilaterally laid at the doorstep of the poor operational functioning of the traditional
criminal justice system. Grassroot experience shows that few police reports were drawn
up for breaches of local police regulations as well as revealing these codices more often
than not to be antiquated. Moreover, the public prosecutors‟ offices often found
themselves compelled to dismiss cases due to „offenders unknown‟ (technical nolle
prosequi).

Chapter 2: The body of statutory instruments in Belgium

2.1. Act dated 13 May 1999 pertaining to the Introduction of Municipal

Administrative Penalties

As a result of the Municipal Administrative Penalties Act, the powers of the municipal
assemblies in Belgium were sensibly expanded. Local councils are now able to focus on
what they feel is important in their fight against forms of „public nuisance‟. Moreover,
the municipal assembly decides on the expediency of imposing an (1) administrative
penalty or (2) a criminal justice settlement (politiestraf = sentence pronounced by so-
called Police Courts) for breaches of the local byelaws, with the mayor being given
authority over the means of enforcement/implementation. This has allowed the federal
government to provide local councils with an appropriate instrument enabling them to
swiftly and forcefully tackle issue of nuisance, with the underlying premise being that
local councils should be in a position to autonomously deal with nuisance offences, with
local councils establishing, prosecuting and punishing the offences. This gives them full
command of the entire chain of enforcement policy (VAN HEDDEGHEM,2006) whilst
being able to shape their own local custom-tailored integrated safety policy. The
principle being that municipal assemblies can now determine penalties or administrative
penalties for breaches of their own byelaws and regulations, unless penalties or
administrative penalties have already been provided for under statutory Acts, Decrees
of Edicts. The repeatedly decried basic tenet that local councils can only act to the
extent that no higher order rules of law already provide for penalisation, remains
upheld. In view of the familiar problem of the inflation of penalisations in all manner of
federal, community and regional spheres of competence, this principal cumulation ban
remains the biggest stumbling block for the actual implementation of the regulation,
which was presented as particularly ambitious (SCHUERMANS,2005). Since the
statutory 1999 Act remained dead letter for this reason, the MAP Act was thoroughly
amended by federal Parliament in 2004.
 10

2.2. Act dated 17 June 2004 in amendment of the New Local Government Act

This new Act introduced two departures from the aforesaid principle. As such, the
offences listed in the Penal Code (title X of Book II, art. 551 through 564) were
depenalised13, which means that if local councils do not wish to see these offences go
unpunished, they are to include said offences in their local police regulations. This is the
only way open to them to effectively penalise, either resorting to the old course of the
Police Courts, or by resorting to the new course of imposing administrative pecuniary
fines of up to 250 euros. The second departure from the principal cumulation ban
concerns the criminal offences detailed in articles 327-330, 398, 448, 461, 463, 526,
537 and 545 of the Penal Code. This series of criminal offences are referred to as the
so-called „mixed violations‟. They are not depenalised, yet the municipal assembly is at
liberty to provide a pecuniary fine of up to 250 euros in its byelaws for these offences,
in addition to the existing penalties provided for under the Penal Code.

The latter series of criminal offences in turn is divided into two separate procedural
settlements, in which the official police report is required to be sent to the Public
Prosecutor‟s Office in all cases.

With regard to the first series of criminal offences (the so-called „lighter mixed‟
violations14), administrative pecuniary fines can only be imposed when the Public
Prosecutor has failed to communicate his position in the case to the civil servant within
one month following receipt of the police report. If the Public Prosecutor has allowed
this term to expire without making his position known, offences under this first series
of criminal offences can only and exclusively be punished administratively, with the local
council at liberty to take the initiative of its own accord to proceed in this sense.

13 Article 4, 1° of the Act dated 7 June 2004 in amendment of the New Local Government Act. The offences
concerned are offences ranged under the first category (the failure to clean streets or passages, the failure to
ensure that objects which cause obstruction are duly lit, the discarding, placing or leaving behind of objects,
holding fireworks displays,..), the second category (e.g. roaming animals, setting foot on other people‟s land
without permission), the third category (e.g. the wilful causing of damage to and destruction of goods and
chattels, night time noise nuisance,..), and the fourth category (e.g. soothsaying, the wilful causing of damage to
fences, assault and battery and less serious acts of violence,..).
14 These are articles 526 (the destruction of or causing of damage to cemeteries, memorials or gravestones, to
monuments, effigies or other objects or such objects that are intended to benefit the general public or to serve by
way of general public decoration. The same also applies to monuments, effigies, paintings or any which objects
of art placed in churches, temples or other buildings), 537 (the malicious destruction or chopping of trees or
engraftments) and 545 (the chopping of shrubs, the destruction of fences, the removal or displacing of border
posts).
 11

The second series of criminal offences (the so-called „more serious mixed‟ violations15)
results in penalisation under traditional criminal justice, unless the public prosecutor‟s
office should indicate it feels it would be more appropriate to impose a pecuniary fine.
With regard to this series of criminal offences, the municipal civil servant can only
impose an administrative pecuniary fine if the Public Prosecutor has advised him within a
preset time span that he shall not be pursuing the violation any further, and that he
feels it would be appropriate to impose an administrative penalty. If the Public
Prosecutor fails to communicate his position, and the provided time period has expired,
the local council is no longer at liberty to act in an administrative sense, which means the
violation is left to be exclusively settled in a criminal justice sense.

Although this intricate construction rectified the concrete implementation issues that
came with the 1992 Act, this change in legislation is not without flaws either. Even with
the depenalisation, a whole raft of behaviours (particularly night time noise nuisance and
breaches of environmental regulations) remain pre-incriminated by higher order rules of
law (Vlarem ((Flemish Environmental Safety Regulations)), own regional noise nuisance
arrangements in place,..). But the types of nuisance which local councils were most
determined to tackle using this new enforcement instrument were nuisances which
proved conducive to the degradation of local neighbourhoods (fly-tipping, street litter,
dog foulings). In the same way minors who have not reached the age of 16, go entirely
unpunished for these depenalised criminal offences, whereas these are the very types
of nuisance (night time noise nuisance, vandalism,..) which are most often perpetrated by
youngsters under the age of 16. This group of minors no longer qualified for protective
measures either. Failing a violation of a criminal justice nature, on the basis of the
Youth Protection Act no protective measures can be taken. For the violation could not
be defined as a misdrijf omschreven feit (MOF) (= an offence described as a criminal
offence - ODCO). In a concrete sense, this means that a 14-year-old who committed
less serious acts of violence went with impunity as he could no longer be acted against.
Against minors under the age of 16, the Public Prosecutor‟s Office could act only in
exceptional cases on the basis of an urgent problematische opvoedingssituatie (POS)
(problematic child-rearing situation - PCRS), if the terms and conditions were met.

2.3 Revised Act dated 20 July 2005

These and other remaining bottlenecks were addressed in the Revised Act 16. Punishable
behaviours such as causing damage to goods and chattels (art. 559, 1°), night time noise
nuisance (art. 561,1°), damage caused to national or town fences (art. 563, 2°) and

15 These are articles 327 through 330 (verbal or written menace, false reports, threats involving an attack on
persons or properties,..), art. 398 (wilful assault and battery), art. 448 (defamation of persons or people in public
authority), art. 461 and 463 (the fraudulent removal ((of objects)) whether or not for short-term use, theft).
16 Act dated 20 July 2005 establishing Various Provisions – Matters Pertaining to the Civil Service And Urban
Policy - Municipal Administrative Penalties (art. 21-22), B.L.G, 29 July 2005.
 12

committing less serious acts of violence (art.563,3°) were reincorporated into the Penal
Code, making it possible for minors under the age of 16 to be penalised again. These
behaviours were added to the list of so-called „mixed violations‟, which means that if
local councils can only impose an administrative pecuniary fine for these behaviours in
cases where the Public Prosecutor‟s Office grants permission (or fails to respond within
a preset time span). Finally, this Act also changed a number of procedural rules, which
shall remain undiscussed as part of this paper.

Chapter 3: Belgian implementation in practice

In Belgium, administrative penalisation has always been closely associated with the
criminal justice enforcement itinerary. Administrative penalisation is considered a
supplementary option in which, in addition to the criminal justice track course, an
administrative response is made possible. An important exception to the criminal
offence contingency17 of the Belgian administrative settlement are the municipal
administrative penalties. How has this enforcement instrument been met at grassroot
level? Are local councils capable of using the MAP legislation and do they effectively use
it? In order to avail themselves of the Act as an active instrument against nuisance,
local councils are required to adapt their local police regulations and have these
approved by the municipal assembly, recruit and train municipal civil servants and write
out and collect fines. Quite a handful, as it would appear from a university study18, which
examined the implementation of the MAP legislation in Belgium from December 2005
through June 2006. The study population was sizeable with 446 local councils 19
answering the questionnaire that had been compiled20. The majority of local councils
(263 or 59%) had not yet included administrative penalties in their local regulations. The
minority (183 or 41%) had effectively implemented administrative penalties as part of
their local regulations. The local councils concerned were chiefly larger and middle-sized
cities and towns21.

Belgian police zones often assemble several local councils which means they are made to
deal with different municipal byelaws. Bringing these (often antiquated) police codices is

17 In which, depending on the criminal offence involved, the Public Prosecutor‟s Office continues to have a
significant say in matters.
18 The study was conducted by the research teams from the “Institute for International Research on Criminal
Policy” (IRCP) (supervisor T. Vander Beken) and “Social Safety Analysis” (SSA) (supervisor P.Ponsaers) from
Ghent University.
19 Out of the 589 Belgian municipalities.
20 The research data were derived from PONSAERS,P., VANDER BEKEN, T., CAMMAERT F.,
Onderzoeksrapport, Evaluatie van de toepassing van de wet betreffende de administratieve sancties in de
gemeenten – 7 jaar gemeentelijke administratieve sancties (Research Report, Evaluation of the implementation of
the Act pertainig to the administrative penalties in local councils – 7 years of municipal administrative
penalties), Ghent University, unpublished, pp. 54.
21 The cities and towns are 4 major cities, 9 „regional‟ towns, 7 highly urbanised municipalities and 8
municipalities of Brussels 18.
 13

a monumental task. Eighty local councils are currently still in the process of coordinating
their police codices, which means they are intending to use the municipal administrative
penalties. A number of local councils (31) expressed misgivings, stating they did not wish
to use the enforcement repertory that has been introduced, saying it is up to the police
and the public prosecutors‟ offices to trace, establish and prosecute nuisance offences,
without any desire to shoulder this task themselves. They referred to the new
legislation as an infringement of the principle of the separation of powers, fearing to
lose the confidence of their residents as their local authority. In other local councils
(22), the police regulations (already modified) remain to be put to the vote of the
municipal assembly, or even to be submitted to the municipal assembly. Twenty local
councils are currently at the stage in which the local police regulations are scrutinised
in-depth before administrative penalties can be introduced. Other local councils (19)
felt there was too much ambiguity and uncertainty as to the current MAP Act. The re-
incorporation of „night time noise nuisance‟ and „vandalism‟ as part of the Penal Code in
their view is indicative of the unstable nature of the Act. Other local councils (16) are
still waiting for a (provincial) civil servant to be appointed before making any further
steps in the implementation process. The remaining local councils that were queried
stated they did not wish to switch to a system of administrative enforcement for
nuisance issues, usually for reasons of expense, with too much investments being
required in terms of time and human resources and the laborious procedure involved.

Which nuisance offences are being settled in an administrative sense at this point in
time? In descending order, the type of offences involved are affixing sign writings,
posters, pictures and photographic presentations, pamphlets and placards on the public
highway, on trees and afforestations, notice boards, front and side walls, walls, fences,
pillars, posts, columns and buildings and edifices (i.e. „flyposting‟, „graffiti‟, ...)‟, putting up
terraces or added constructions to existing buildings or dwellings without the consent
from the mayor, putting out chairs, tables, benches, windscreens and containers, noise
nuisance (during the day time), animals on a leash, night time noise nuisance, failing to
clean streets and passages thereby keeping them safe, refusing to repair or demolish
buildings that are dilapidated, burning waste materials and setting up garden fires,
leaving behind (harmful) objects on the public highway and littering the public highway,
fly-tipping, dog foulings, taking up the public highway or public spaces, routs on the
public highway, covering one‟s face (except for festive celebrations such as carnival),
urinating in public, throwing rocks or other objects at houses, vehicles, buildings and
fences or wilfully destroying or causing damage to other people‟s goods and chattels
with the exception of the cases detailed under articles 510 through 550ter of the Penal
Code. The research results show that these violations are considered nuisance offences
 14

by the local councils, who settle these offences with a pecuniary fine. The size of the
pecuniary fine differs from one local council to the next22.

In practice, fly-tipping and street littering are most frequently cited. What is also
striking is that, apart from a number of major cities, local councils invariably leave police
officers to establish the offences for MAP violations, and much less so by municipal civil
servants. The latter face a series of pertinent problems when acting as the party
intended to establish the offences in question. For one thing, these civil servants do not
have the authority to establish the identity of the offender23, which means they have no
alternative but to register “persons unknown” on their report sheet (whilst the offender
is known). In addition, there are quite a few problems with sending on the official report
sheets in time. The failure to observe these time limits means the local council can no
longer impose administrative penalties. Other local councils stress the issue of the non-
payment of fines and the lack of conclusive evidence. Others still would like to see
improved collaboration with the Public Prosecutor‟s Office when it comes to settling the
mixed violations. In general however, results show that collaborative efforts are running
particularly smooth-paced.

Chapter 4: The legislator’s seven league boots

With its legislative initiative, the federal authorities played the role of facilitator for
the local councils in their battle against nuisance. Scientific research shows however
that not all local councils wish to use the law enforcement initiative made available to
them. Something which, in my opinion, is strongly influenced by the mad dash bolt with
which the legislator introduced administrative enforcement law. The multitude of
regulations (both at federal, regional and local level) is a fact. In addition, the diversity
and fragmentation of regulations in place saw to it that some violations were described
and are punishable under a variety of different incriminations. The federal authorities
and the regional authorities are continuing to promulgate an increasing body of
statutory legislation. Which in turn requires considerable ingenuity on the part of local
authorities to first and foremost render these regulations duly enforceable and
secondly to effectively punish offences under such regulations. Several violations which

22 In Antwerp for example, fines for urinating in public differ from the fines imposed in Ghent for the same
offence.
23 Yet a further amendment of the Act is intended to remedy this. Art. 119 bis, par. 6 of the new Local
Government Act would, according to Chapter VII, art. 21 of the “Wetsontwerp tot instelling van de functie van
gemeenschapswacht, tot instelling van de dienst gemeenschapswachten en tot wijziging van art. 119 bis van de
nieuwe gemeentewet” (Draft Bill pertaining to the institution of the position of Community Guard, the institution
of the Community Guard Service and in amendment of art. 119 bis of the new Local Government Act) (Belgian
Chamber of Deputies, 20 March 2007, doc. 51, 3009/001, 7079-52) be complemented as follows: “The municipal
civil servant establishing an offence shall be authorised to ask the offender for his/her identity card or other
documentary proof of identity, enabling him/her to verify the true identity of said person. This identity check
shall only be permissible vis-à-vis persons whom the civil servant has established to have committed (an)
offence(s) which may give grounds for a municipal administrative penalty”.
 15

the local councils are keen to suppress autonomously, as a result of the hyperlexia that
abounds, are already punishable by higher order rules of law. Which leaves local councils
impuissant to write out any pecuniary fines of their own in addressing such offences.
Yet, the whole idea of the legislator was to enfeeble instruments of suppression which
had been elaborated on and imposed by the federal level, to help reinforce local
enforcement instruments, in step with the needs and requirements of the local level of
administration. A stated objective which partially overshot the grassroot level of
implementational practice. A number of other criminal offences which to date have not
been made punishable at the federal level (such as prostitution) are now suddenly, as a
result of the ingenuity of municipal punitive nuisance policies, occasioning fines anyway24.

The fact that Parliament was unable to anticipate the concrete ramifications of the
administrative handling of nuisance issues, evinces from the legistic pendulum swing in
which certain violations (night time noise nuisance, vandalism) were first depenalised
back in 2004, only to be transferred back to the traditional criminal justice track
course by the Revised Act in 2005. The consecutive changes in statutory law pertaining
to the punishment of public nuisance offences is experienced as ambiguous and unclear
by local councils. Local councils have barely had the opportunity to digest this
complicated statutory pill whole, when the legislator continued his mad dash bolt in
seven league boots. Two new proposed statutory law amendments have recently been
announced.

In Belgium, sometimes language community interests play a part of their own. Not
everyone is equally keen on the system instituted by the federal government intended to
give local councils more leeway. For, the Flemish Environment Minister is seeking to
return the suppression of environmental violations back to the Public Prosecutors‟
Offices. The very violation domain in which most of the official police reports were
compiled under the MAP regulations. In his draft bill for the environmental health
enforcement decree, the minister proposes to tackle breaches of environmental health
regulations either in a criminal justice sense or by way of an administrative penalty. Be
it with the marked distinction that said penalties would no longer be allowed to be
written out by the local councils, but by a brand new yet to be instituted Flemish
government agency. Which would mean the persons establishing offences would also be
Flemish inspectors, and no longer municipal civil servants. A first tentative step en route
to an embryonic Flemish police service? The minister‟s stated intentions are certain to
give further grounds for discussion on the division of competences in Belgium.

24 For example, in Antwerp soliciting is no longer allowed in a specific quarter of the city, with the working girls
now also subject to an administrative penalty (pecuniary fine). Punters too can be fined under the administrative
enforcement law, whereas under traditional criminal justice system punters (Penal Code) were never made
punishable.
 16

A second striking change to the law is the revision by which graffiti and the causing of
damage to real property are now suddenly being introduced into the Penal Code, as if
these criminal offences had not been previously punishable. The Act announces the
introduction of two „new‟ criminal offences as part of the Penal Code, for which it
envisages a penalisation by custodial sentence from one month up to six months and/or a
pecuniary fine ranging from 26 euros up to 200 euros. Not only were these criminal
offences already incorporated as part of the Penal Code (be it under a different
titulation25), a good many police reports have been compiled for these offences which
have been submitted with the various Public Prosecutors‟ Offices across the land, to be
suitably pursued. Nearly all local police statistics have been providing figures on both
forms of violations for years on end. What is more, they have already been included
under art. 119 bis of the New Local Government Act under the milder forms of mixed
violations, for which a specific procedural settlement has been statutorily provided. Yet
the legislator deemed it necessary to introduce a „new‟ law, which is said to be intended
„to end the growing sense of impunity held by young perpetrators of graffiti and wilful
damage offences‟. The act yet again rearranges these violations under the header of the
mixed violations of the MAP Act. Confusing to say the least, both for the parties
establishing, prosecuting and punishing the offences.

Two examples intended to demonstrate that the so-called impunity and the enforcement
deficiency should not be used as alibi to justify the hyperlexia. The seven mile boots
with which the legislator is running amuck are making it particularly challenging for all
partners taking part in the integrated safety policy, as the enforcement logic is nowhere
near. Some forms of damage and theft are handled by the Public Prosecutor (bringing to
bear a variety of different settlement systems including penal mediation, surcease of
criminal prosecution against payment of a pecuniary fine, nolle prosequi,…), some by the
criminal court, others by the municipal civil servant and others still by the police court
as the appeal court for administrative pecuniary fines imposed. Needless this say this
all adds to the confusion, not only for the judicial and municipal authorities themselves,
but also for the police and citizens. Chapter Five goes on to discuss how in The
Netherlands too, the condonance policy (VLEK, HOOGENBOOM,2002) in place was
abandoned, before switching to a suppressive approach.

Chapter 5: The body of statutory instruments in The Netherlands26

25 For years already, the Belgian police services have been drawing up official reports against this type of
violations, which had always been included under the Penal Code (articles 526, 537 and 545 Penal Code), be it
under a legal description which was subsequently subsumed in the nomenclature of the police report registers
under the criminal formula of „vandalism‟ (providing the exact legal description and relevant sections of the law
on the print-outs of the police report for the benefit of the Public Prosecutor‟s Office).
26 This Chapter was written by P.A.M. Mevis, Professor of Criminal (Procedure) Law, Erasmus Universiteit
Rotterdam, The Netherlands.
 17

For the field of law enforcement and thereby, for the safety in local quarters,
neighbourhoods and communities in The Netherlands, a recent reversal of events has
proved to be of major importance. The traditional criminal justice method of law
enforcement by prosecution and the dispensation of justice by the criminal court, as the
classical and exclusive way of passing sentence over behaviours which have been made
punishable by law, is being abandoned. In particular, this also extends to include the
punishing of minor offences in the public space of the local municipality. As part of
concerted efforts intended to improve safety, currently three proposed bills have been
introduced in Parliament making it possible for (local) authorities such as the Public
Prosecution Service, investigating officers of the (regional) police as well as surveillants
acting as special investigating civil servants in the employ of local councils monitoring
such behaviours shall be given the power to fine citizens. The behaviours concerned are
typically behaviours of minor severity occurring in the public space, such as wrong
parking, taking out the dustbins too early, urinating in public and such like. The crux of
the proposed regulation is that civil servants working for any of the given administrative
bodies impose the fine on the offending citizen, which in principle stands as irrevocable,
unless the citizen takes the initiative by opposing the fine. Only if and when the citizen
himself takes the initiative is the case presented to the administrative or criminal
court. Before dedicating a number of considerations of our own to this topic, first
comes a brief outline of the three proposed bills changing current legislation. We start
out by focusing on the principal and most extensive of these three : the Wet OM-
afdoening (Public Prosecution Service Settlement Act).

5.1. The PPS Settlement Act

Following on from the existing options available to the public prosecutor and police
officers to settle criminal cases by way of a so-called transaction (an offer made to the
defendant, for example to deposit a sum in order to stave off (further) criminal
prosecution27), the Act dated 7 July 2006, Bulletin of Acts, Orders and Decrees 330,
provides for the further reaching option for the public prosecutor and other civil
servants to become authorised to impose a penalty for certain punishable offences. 28
This is accomplished by issuing a so-called strafbeschikking (penal order), a decision
order imposing a penalty.

27 The transaction (settlement) is regulated under art. 74-74c Penal Code. The PPS Settlement Act which shall be
discussed hereafter makes it possible for this regulation to be abolished in the future.
28 The Act amends the Penal Code and the Criminal Procedure Code. It has not yet come into effect and is not
likely to before the autumn of 2007, as we are currently waiting for modifications to the supporting computer
software. Not all components of the Act shall simultaneously be made to come into effect. Once the penal order
regulation itself has become operational, its application is initially to be limited to a confined category of
widespread criminal which are easy to categorise in terms of penalty and which are straightforward in terms of
evidence requirements (such as drink driving). As such, it may be a while yet before the Act is set to influence or
rule over the criminal justice practice of reaching settlement in criminal cases in full scope and effect.
 18

Under art. 257a of the Criminal Procedure Code, the authority to issue a penal order
strictly exists for criminal offences which are punishable by a custodial sentence of no
longer than six years under the statutory description. Offences for which the law
provides longer sentences, can only be presented to be sentenced by the court,
regardless of the concrete nature of the sentence (demanded by the public prosecutor).
The sentences that are available to be imposed by penal order vary within the wide-
ranging fork of fines and custodial sentences as listed under art. 257a subsection 2
Criminal Procedure Code. Also pursuant to art. 113 subsection 3 of the Constitution,
custodial sentences can only be imposed by the criminal court. In principle, the
imposition of a penalty by the issuance of a penal order stands as irrevocable. Only the
punished citizen who himself takes the initiative to oppose the penal order (art. 257e
Criminal Procedure Code), will as yet see his case presented to the criminal court. The
latter shall judge, on the basis of a factual indictment, on the propriety and punishable
nature of the offence that is the concrete behaviour for which the defendant stands
accused and on the liability for criminal punishment of the defendant. The court itself is
the body imposing the sentence, if and as it sees fit. This serves to establish that it is
the original behaviour of the defendant that is at issue under the legal proceedings
following opposition, not the penal order issued. As such, in terms of substance and
merit, there is question of a criminal justice judgement, not an administrative
judgement. The law expressly does not consider the issuance of the penal order as a
trial or as prosecution. The fact that the defendant is offered the opportunity to lodge
opposition is the effectuation of his right to be tried, as guaranteed under art. 6 ECHR.
Which is why the institution of opposition is not subject to court registry duties,
grievance system or any other forms of constraint. The judgement on opposition stands
as a first instance trial proceeding. The defendant has all regular legal remedies
available to him, insofar as the regulations pertaining thereto do not preclude the
institution of specific legal remedies in the case of minor offences.

With to our topic, the provisions of art. 257b and art. 257ba Criminal Procedure Code
are specifically relevant. Said articles make it clear that the authority to impose a
penalty by way of a penal order shall be the exclusive reserve of the PPS. According to
art. 257b Criminal Procedure Code, the authority to impose a penal order shall equally
reside with assigned investigating officers, by which are intended regular police
officers. In assigned criminal cases, they may be awarded with the authority to issue a
penal order for violations. The penal orders to be issued by said officers can only take
on the form of a pecuniary fine. According to art. 257b subsection 2, said investigating
officers can even be authorised to issue penal orders pertaining to criminal offences,
which under the relevant statutory description are punishable by custodial sentences of
no more than six years, which are of an uncompounded nature and which have been
perpetrated by persons who have reached the age of eighteen. Here too, the substance
of the penal order can only take on the form of a pecuniary fine, the sum of which is
capped at an amount of € 350,-. Pursuant to art. 257b subsection 3 Criminal Procedure
 19

Code, these investigating officers shall only be allowed to use these powers in
compliance with the guidelines determined by the Board of Procurators-General.
Although the fine is not imposed by the PPS in such cases, this is done by the police
investigating officers as part of the criminal justice enforcement of the rule of law. In
this sense, the power to impose such penal orders is exercised under the authority and
responsibiliy of the PPS. Insofar as required, this is emphatically reiterated in art. 257a
subsection 3 Criminal Procedure Code.

Of greater interest by Dutch standards are the provisions laid down under art. 257ba
Criminal Procedure Code. According to these provisions, assigned bodies or persons
charged with an assignment of a public nature, can also be assigned with the authority to
issue a penal order within bounds remaining to be set and specified. The bodies or
persons intended are bodies and persons who are, in themselves, not charged with the
task of upholding and enforcing the rule of law in the criminal justice sense.
Nonetheless, they may be assigned with the authority to issue a penal order, that is to
say: the authority to impose a penal fine for behaviours which are punishable under the
criminal justice system. Insofar as such authority were to be granted, any use that is to
be made thereof shall occur strictly under the supervision of and in compliance with the
guidelines to be drawn up by the Board of Procurators-General (art. 257ba subsection 2
and subsection 3 Criminal Procedure Code). Which is why the provisions under art. 257ba
Criminal Procedure Code are emphatically to be understood as an attempt to transfer
the exercise of the power to impose fines by administrative bodies back under a
criminal procedure regime. For, the exercise of the authority on the grounds of art.
257ba Criminal Procedure Code by non-criminal justice bodies of authority causes the
formal criminal procedure of art. 257a et seq. pertaining to the penal order to be
applicable. This shows up an overlap of the criminal law/criminal procedure law fields of
law on the one hand and the field of administrative law enforcement by way of
administrative fines on the other hand. Small wonder then that neither the
administrative bodies of authority nor the PPS are particularly eager to use this
umbrella construction. There is an inclination to prefer either a strictly criminal law or a
strictly administrative law settlement. It is to be expected that little use will be made
of the genuine attempt to provide for an integrated regulation to settle minor
punishable offences by way of fines as laid down under art. 257ba Criminal Procedure
Code for the benefit of upholding the uniformity of the dispensation of justice in the
area of law enforcement.29 Yet it is also true to say that within these very provisions, a
significant part of minor punishable offences perpetrated in the public space of local
municipalities could be settled. However, there is another reason why such will not be
forthcoming from the usage of this power.

29 In spite of the fact that art. 576a Criminal Procedure Code derives from the PPS Settlement Act the possibility
for the proceeds of the relevant fines not to go to the central government but to the relevant legal persons
governed by public law, to the local councils for example whose civil servants have been assigned with the power
of issuing penal orders for minor offences in the public space.
 20

5.2. The ‘Minor Nuisances at Municipal Level Act’30

For quite some time, the (four) major cities in The Netherlands have been pressing for a
shift from criminal justice enforcement in the area of minor offences in the (their)
public space, towards a model in which they themselves (through surveillant civil servant
assigned by them) have the opportunity to mete out fines (and being allowed to retain
the proceeds thereof) in an otherwise equally reinforced, preferably also visible
itinerary of administrative superintendence and law enforcement. Their intent is to push
back criminal justice law enforcement by the criminal justice system. Which is why, even
before art. 257ba Criminal Procedure Code as detailed above was added to the PPS
Settlement Act, a bill was published pertaining to the administrative settlement of
„minor nuisance‟. Different from the PPS Settlement Act, the proposed bill has been
emphatically created in order to allow for a swifter response to „petty‟ offences at
municipal level which have a significant impact on the sense of well-being and the sense
of security of citizens. The draft law is intended to reinforce the influence of the local
council over the enforcement of law and order in the public space and also to alleviate
the pressure currently bearing down on the criminal justice chain. The proposed
regulation, which is of an administrative law – not a criminal law - nature, is to be
incorporated into the Local Government Act. The proposed law only provides for the
imposition of (administrative) fines, to the exclusion of any other forms of penalty.

What behaviours does the Act extend to cover? The behaviours covered by this Act are
determined under art. 154b Local Government Act (which means at national level). These
largely pertain to the establishment of relevant punishments for offences of provisions
of the local councils‟ own municipal byelaws (which by definition are offences under
Dutch law). Which means it is not up to the local councils to determine for which
offences they shall have the authority to impose fines. What is subsequently up to the
local councils with regard to the offences detailed under the Order in Council, is for

30 The full title of the Act is “Wijziging van de Gemeentewet in verband met de invoering van een bestuurlijke
boete voor overtreding van een aantal voorschriften bepaald bij gemeentelijke verordening betreffende overlast in
de openbare ruimte (Wet bestuurlijke boete overlast in de openbare ruimte)” (Amendment of the Local
Government Act pertaining to the Introduction of an Administrative Fine for Violations of a Number of Rules
Laid Down By Municipal Byelaws Concerning Nuisance in the Public Space – ‘Minor Nuisances at Municipal
Level Act’) which, as we are putting the finishing touches to the present text, has been introduced in Parliament as
Parliamentary Paper 30 101. Over the course of its Parliamentary history, the regulation has been amended and
revised to a significant extent. The appellation „Minor Nuisances at Municipal Level Act‟ is an informal work
title. In actual fact, the draft bill containing the introduction of the administrative fine, is preempting a more
general regulation of this matter under the draft bill „Vierde Tranche van de Algemene wet bestuursrecht‟ (Fourth
Tranche of the General Administrative Law Act) (Parliamentary Papers 29 702). However, it remains unclear if
and whether, when (the relevant section of) this Fourth Tranche will be taking effect. Which explains why the
regulations governing administrative fines included under said draft bill shall be left aside as part of the present
text. For a description and critique of the „Minor Nuisances at Municipal Level Act‟, also see C.L.G.F.H. Albers,
„De Wet bestuurlijke boete overlast openbare ruimte. Beter ten halve gekeerd dan ten hele gedwaald‟,
Gemeentestem, 2006, p. 137-147.
 21

them to go on to determine by way of a municipal byelaw which offences such authority

shall exist; whether or not the local council chooses to effectively use its authority to
impose fines is then a matter of choice for the local council. It is not incumbent on the
local council to avail itself of the opportunity to introduce administrative fines. As such,
the criminal justice framework remains upheld with regard to these types of offences. 31
As to the selection of offences which come under the scope of the Act, in a general
sense some four criteria are particularly relevant according to the Explanatory
Memorandum. The act principally envisages behaviours which take place within the public
domain. Secondly, the offence concerned is required to be an offence suitable to be
settled in an administrative sense, i.e. no major moral offences. Thirdly, there can be no
question of behaviour in which the safe health of any victims are prejudiced, in which
case only a criminal justice settlement shall be deemed appropriate. Finally, the
behaviour concerned shall not be allowed to involve a considerable risk of escalation.

We shall also be dilating on the procedure in greater detail. The authority to impose the
fine rests with the mayor or the municipal executive (the proposed art. 154b subsection
4). The fine is to be issued by the municipal surveillants who shall be special
investigating officers, even though the imposition of the fine shall no longer be an act of
investigation or criminal prosecution.

In the approach favoured by this proposed bill, the imposition of a fine is to be a matter
of administrative law. By its very nature, the imposition of a fine - even after the
transfer from criminal law to administrative law - involves the imposition of a punitive
penalty. Which means the basic tenets of criminal law remain in place, but are now
required to be arranged separately. To this end, the bill – amongst other things -
proposes the inclusion of a provision into the Local Government Act that no fine shall be
imposed in the event the offence cannot be attributed to the offender (the term
„defendant‟ is not used). Other grounds too, under which – according to criminal law and
criminal procedure law – the right to dispense justice or to exercise criminal prosecution
– may be forfeited (the decease of the person involved, statutory limitation), are to be
arranged separately under the Local Government Act, strictly for the benefit of this
administrative fine system.

Under this proposed regulation (art. 154k subsection 1), after first having filed due
opposition with the local council, stakeholders are to have the legal remedy of lodging an
appeal with the courts, where the case is to be treated in accordance with the
administrative law model. Different from the criminal law system outlined above which is
required to be adhered to in the event of opposition against the penal order, the
administrative model of judicial review does not centre on the behaviour of the

31 The proposed art. 154h Local Government Act is intended to prevent local councils from imposing
administrative fines in cases where the PPS has opted for criminal prosecution.
 22

person(s) concerned, but on the decision to impose the fine in the first place as the
stake of the procedure.

5.3. The Administrative Fines for Wrong Parking and Other Minor Road Traffic
Offences Act

As if the above fails to provide local councils with sufficient instruments for
administrative enforcement by the imposition of penalties, draft bill 30 098 pertaining
to ”Modifications of the Highway Code Act 1994 pertaining to the introduction of an
administrative fine for the violation of a number of regulations governing the parking
and the leaving standing of vehicles, and other minor road traffic offences (The
Administrative Fines for Wrong Parking and Other Minor Road Traffic Offences Act)”
contains another separate set of regulations for local councils enabling them to impose
administrative fines for the road traffic offences, referred to in the title, on municipal
territory. The regulation, which is partially in parallel with the arrangements provided
under the Minor Nuisances Act, is set to be included as part of the Highway Code Act
1994.

This third option enabling the imposition of administrative fines by local councils is
mentioned here only to paint the full kaleidoscopic – mildly put – picture of the options
available. To enlighten the interested reader, it is worth mentioning that, with regard to
wrong parking in any given municipality, a due distinction must be made with parking
without paying the parking fee. Parking fees are regulated as a municipal tax; if such
taxes fail to be paid, they are penalised with an administrative fine, for which yet
another regulation (pertaining to municipal tax law) exists.

5.4. Critical observations and conclusions

The advance of administrative fines, to be implemented by civil servants working for

administrative bodies as part of their enforcement duties in the public space („on the
street‟ as it were), has caused the goal posts to be considerably widened in a theoretical
sense, with the administrative authorities having been provided with an efficient
instrument for immediate and visible law enforcement in the public space. To serve this
purpose, a number of fundamental conceptions of public law have – curiously so – been
modified with comparative ease and without much ado. The administrative enforcement
potential has been given punitive powers, although it can rightly be argued that the
penalisation of behaviour by what in essence is a punitive response, is reserved for the
application of criminal law, and is not an instrument of administrative law. The
penalisation of behaviour with what is essentially a punitive response, has moreover been
contracted out to administrative bodies of authority, in places where penalisation, also
 23

pursuant to art. 113 subsection 1 of the Dutch Constitution32 appears to have been
reserved for the judiciary, as the outcome of a due process of law, with the latter
concept having the establishment of behaviour and of guilt by the court as just two of
its foundational elements. Only by interpreting the provisions of the aforesaid
subsection of the relevant article of the Constitution, not in a material, but strictly in a
formal sense, does it become defensible for the claim that is vested in the reservation
of due process of law by the judiciary, only applies to offences which have been
designated as punishable under national law and not to such offences which, under
national law, can be punished by an administrative penalty. In this perspective, the
nature of the penalty (punitive) is abandoned as the distinguishing criterion for
upholding guarantees that are inherent to the rule of law. Since such a material
criterion is considered to be decisive in the eyes of the ECHR, this development may
give grounds for frictions with ECHR law. In a practical sense however, such frictions
appear to be sidestepped due to the fact that ECHR law holds that, during the pre-
stages of any right to gain access to the court, in a „criminal charge‟ in the first instance
the punitive penalty can be imposed by a body other than a court of law. In part, it is
indicative of the specific gravity of the Dutch safeguarding of legal rights under public
law, that a discussion on guarantees surrounding administrative penalisation virtually
remains unconducted at such an abstract constitutional level. In The Netherlands, no
response can be found to the underlying legitimisation of the shift of penalisation by
the Bench by way of due process of law, towards the PPS and administration via
prosecution and administrative fines.

At a slightly more concrete level, the finding is that in the area of law enforcement by
way of administrative penalisation of behaviours in the public space, nothing more and
nothing less than instrumental chaos looms large, should the above three draft bills
become law cheek by jowl. We may hold out the hope and the expectation that the
legislator shall have enough common sense to avoid such chaos, even though – as we put
the finishing touches to this text – the constellation of the stars is not particularly
favourable. The attraction (as well as the status) of law enforcement conducted under
direct management by way of administrative penalisation in local councils‟ own public
domain is too great for (the mayors of) notably the larger municipalities, also by dint of
the fact that they are interested in appropriating the proceeds of the fine system for
the benefit of the local council. The question is whether they are not sizing up the costs
and the burdens of such a system as unduly rose-tinted.

The introduction of the possibility for the Public Prosecution Service to impose a
penalty by issuing a penal order, can only be understood against the background of the
existing possibilities for the PPS on the one hand to settle criminal cases outside of the
courts by way of a transaction (settlement). The opportunities available to do so are

32 Which reads as: “The judiciary is furthermore assigned with (the task of) the trying of punishable offences”.
 24

considerable in number and are being applied on a fairly large scale in the practice of
criminal justice and without too much problems. This can be viewed as an argument in
favour of or, the very opposite, against the introduction of the PPS OM penal order. On
the other hand, the introduction of the PPS penal order cannot be viewed separately
from the fast growing number of possibilities available under a wide number of
statutory regulations for civil servants working for administrative bodies to impose
administrative fines. Against both of the above backgrounds, the comparatively
fundamental objection that the introduction of the PPS penal order erodes the penal
monopoly held by the criminal courts as the outcome of a due process of law, pales into
insignificance. Any such monopoly has long ceased to exist.

Considering the concrete regulations governing the PPS penal order against the above
background, it must be said that its substance is relatively fortunately designed set of
arrangements. There are several reasons for this favourable appraisal. The principal
reason for this positive appraisal being that the issuing of penal orders is an authority
of the PPS and/or that these regulations provide for the issuing of penal orders to be
performed under the authority and responsibility of the PPS, in which there is
effectively question of prosecution (even though penalty is imposed), but expressly not
of a due process of law.

The first benefit of the fact that there is due question of prosecution, is that in the
Criminal Procedure Code, prosecution is a mode of taking a case forward on the part of
the PPS which is embedded in guarantees. Prosecution starts at a given point in time, has
to be formally terminated, the decision to prosecute can be challenged, there may be
reasons to suspend prosecution, etc. Which makes it meaningful not to conceive of such
a weighty instrument, as is the case with the transaction (settlement), as a modality
whose very purpose is to evade or circumvent prosecution. In shaping other, more
general procedures pertaining to the imposition of administrative fines, the benefits of
the due setting of standards for „prosecution‟ are eluded, or, they are required to be
repeated, on penalty of muddled, reiterated or mutually ill-coordinated legislation.

Subsequently, the penal order – as a form of prosecution – enables a flexible exchange

with that other form of „prosecution‟: summonsing to court. It is a major advantage that
summonsing and/or imposing a penal order under the new regulation included in the
Criminal Procedure Code do not make up two separate track courses with the result that
a criminal case may end up, at a very early stage, in either one of the two tracks, making
it difficult to transfer to the other track course. The benefits of this type of open
model come to the fore when the defendant - faced with a harsher, custodial sentence -
, does not declare himself prepared in advance to comply with a penal order, enabling the
PPS to decide on the spot to prosecute by summonsing him to court. In cases too where
a stakeholder (the victim, for example) chooses to oppose, at an early stage, „his‟
criminal case being „casually dismissed‟ with the issuance of a penal order, it is perfectly
 25

straightforward to opt and decide to summonse the defendant to court. Finally, policy
priorities may impel criminal cases, even if they fully meet the formal criteria for PPS
settlement held out under art. 257a Criminal Procedure Code, to be handled first and
foremost by taking the prosecution route by serving summonses (the Lower Chamber has
already urged that this course be taken when dealing with sex offence and violence
offence cases). In a separate settlement by way of administrative fine, the settlement
of what in essence are criminal cases, are rigorously attributed to a different
enforcement modality at an early stage. This causes the forfeiture of the benefits of a
flexible transfer, prompting coordination issues to arise.

The acknowledgement that issuing a penal order under the regulations provided for in
the Criminal Procedure Code is no due process of law, also offers a number of benefits.
It should be clear that the defendant who finds himself penalised with a penal order,
may well have the right to a due process of law, but also that the penal order itself does
not contain any elements that cater to any such claims. The effectuation of the claim,
the right, to a due process of law is to derive entirely from the possibility of lodging
opposition. This awareness means that opposition is not a legal remedy against the penal
order, but instead constitutes a process of law in the first instance. Subsequently, this
also implies that the opposition, rightly so, cannot be made subject to restrictions such
as court registry duties, bail or an urge – either prior to or during the trying of the
opposition – to adduce grievances against the penal order. Things are different under
the administrative law option to challenge an administrative fine. What is of greater
importance is the fact that under the opposition procedure, according to the criminal
law system, it is - rightly so - not the penal order that constitutes the central stake of
the proceedings, but the behaviour of the defendant, even though the penal order is not
just forfeited extemporaneously as a result of the instigation of opposition. The
administrative law review of an administrative fine sees not the behaviour, but the
decision to fine as the central concern. Which is a more confined level of review
whichever way one looks at it and which also serves to confine the scope of the proprio
motu appraisal by the court which is less oriented towards the citizen and his behaviour.
It is especially important to guard against the danger that in both track courses of
judicial appraisal, the review of the binding nature of the municipal byelaw that
underlies the fine, may diverge. It is precisely under a regime of intensified
enforcement of breaches of local councils‟ own byelaws that lurks a significant danger
for municipal legislators, in their urge for law enforcement, to go too far (exceed their
authority) and to go on to create municipal byelaws that are at odds with higher order
rules of law, in which, for example, the freedom of speech or other basic rights are
violated or in which the exhausting regulation of topics by central legislation goes
ignored or unattended.33

33 The regulations governing naturism serve as a good example thereof. Local councils are sometimes inclinded
to banish naturism by issuing a blank ban. Which is something which - under the regulations governing this
matter under art. 430a Penal Code – is not allowed however.
 26

Vis-à-vis law enforcement in the public space of local municipalities, the PPS Settlement
Act regulations offer a sufficiently balanced framework to see a responsible method of
imposing administrative fines by civil servants from different administrative bodies, as
part of the specific penal order arrangements under the Criminal Procedure Code. This
is specifically the case as this provides a regulation which is essentially criminal law in
nature. The management of the Public Prosecution Service, the Board of Procurators-
General, is charged with the concrete roll-out of these new regulations, whereas
citizens – under the arrangements in place under the Criminal Procedure Code - have
(ultimately) been given adequate quality guarantees in terms of substance and
procedure, of a due process of law under the criminal justice wing. This should result in
a situation whereby forms of administrative fining by local council civil servants of
general behaviours of citizens in the public space should be exclusively admitted within
the framework of the criminal procedural penal order. There is no need for the „Minor
Nuisances at Municipal Level Act‟ or the „Administrative Fines for Wrong Parking and
Other Minor Road Traffic Offences Act‟. But even if it is decided that we should walk
this particular path, the PPS Settlement Act heralds a solid reinforcement of law
enforcement in a criminal law sense in and by local municipalities. There is certainly good
grounds to maintain a continuous effort reviewing whether local councils will not prove
themselves unduly eager to avail themselves thereof. Whether or not the „victory‟ of
(the arrangements held out by) the PPS Settlement Act over statutory chaos and less
preferable arrangements and regulations for imposing administrative fines in various
separate, administrative statutory acts, subsequently provides sufficient legitimisation
to duly justify the fundamental shift from the criminal courts to the PPS pertaining to
the settling of criminal cases that is contained in this Act, is a different question. The
answer to this question is, in part, also linked to the way in which the PPS will be using
the PPS Settlement Act in practice. Something which we will not be able to tell until a
few years from now.34

Chapter 6: The cascade of competence shifts

These statutory laws have made the administrative enforcement of nuisance regulations
a fact. Local councils now have an instrument available to them enabling them to take
punitive action, within the contours of administrative law. With the introduction of this
statutory repertory in Belgium and The Netherlands also came a shift in the relationship
between administrative law and criminal law showing a clear shift of competences.
Enforcement of regulations by way of the criminal justice enforcement is being eroded.
Punitive administrative penalties are expanding, with local authorities being given
increased leeway and more competences. Traditional sectors of criminal law (seat, public
prosecution service, police) are losing ground and are made to delegate their

34 The PPS Settlement Act itself provides for the assignment of evaluating the law after five years.
 27

investigative, prosecutional and punitive competences with actors that are unfamiliar
with these instruments. Coordination in the criminal justice chain is an complex affair
and is proving a struggle. Why not install an administrative chain that is capable of
taking over certain duties35? We are not pronouncing ourselves on the benefits or
drawbacks that come with the loss of competences for well-specific actors, but the
ramifications of this decentralization are well worth examining. Whether or not this
move towards decentralization will prove to a positive or a negative development is
something only the future can tell.

The PPS Settlement Act in The Netherlands is serving to transfer the powers from the
Bench to the Public Prosecution Service. Which means those in charge of prosecution
are now also being made to dispense justice. The Belgian and Dutch nuisance regulations
are shifting the offence-finding competences away from the police towards local council
civil servants and the competences of the Prosecution Service and the Police Courts
towards municipal authorities. The result is that both the finding of offences, the
prosecution and the penalization of offences are now all made to take place by one and
the same partner in safety policy, which certainly simplifies matters. In doing so, the
legislator has introduced administrative prosecution services at municipal level. But is it
possible for a lower order level in the criminal justice pyramid to simply assume the role
of a higher order level? Some have referred to this embryonic form of administrative
prosecution services as introduced by the Belgian MAP regulations as pernicious. We
may rightly ask ourselves whether local councils are effectively capable of starting up
their own version of administrative prosecution services as it were? After all, local
councils are now in a position to „self-prosecute offences such as assault and battery,
theft, serious threats, etc. But are they sufficiently armed to conduct the in-depth
gathering of evidence?

Other competences too are being made to shift. In Belgium, for example, penal
enforcement tribunals have been created, effectively expropriating the competences
held by the Minister of Justice in this regard. Even though the Minister of Justice may
well have been given a greater degree of authority over the judiciary, whilst also
determining the general guidelines for the prosecution and investigation policies for the
police and the public prosecution service. Art. 143ter Judicial Code expressly
determines that it is the Minister of Justice who lays down the guidelines for the
criminal justice policy (VAN DAELE,1997), including those of the investigation and
prosecution policies (REYNDERS,THOMAES,DEVROE, 2005) 36.

35 The fact that the legislator did not invariably have his sights on an equally unambiguous and well-conceived
penalisation concept, is proved by the back and fro game with which certain violations were initially expropriated
from the Public Prosecution Service (2004), before subsequently being given back to the local Public Prosecution
Services by way of the Revised Act (2005).
36 The right on the part of the Minister of Justice to lay down binding guidelines for the criminal justice policy
was included under art. 151, §1 of the Belgian Constitution for that matter.
 28

We are also made to find a shift of competences from the Bench to the legislative
branch. Nearly all behaviours are governed by statutory laws, decrees, byelaws,
regulations, … All combining to narrow the discretionary competence of judges and
effectively scaling down the opportunities to display some level of creativity in every
individual ruling (e.g. in terms of sentence measure). Moreover, the partnership in place
under criminal justice policy impels judges and the Public Prosecution Service to confer.
Concrete arrangements are made as to the cases to be taken on and roll quorums are
set. The Public Prosecutor is shifting competences on to the police (APO, VPV 37,…).
Quite a number of supervisory functions are no longer being exercised just by the
police, but by a whole range of new supervisory professions. We are currently looking at
a configuration of some 200 new professions (ENHUS,2006) which, in addition to the
police, are involved with safety in towns and cities. A new draft bill is set to enable local
councils to subsume/include this army of surveillants, together with those charged with
the task of establishing nuisance offences, in the community guard, wearing their own
uniform and special identity card38. All of which giving local councils more powers than
ever before in their fight against unsafety and insecurity.

The basic philosophy that underlies this shift in competences presumably rests with the
fact that the legislator considers traditional criminal law as the “ultimum remedium”,
even though this is nowhere expressly stated as such39. The shift in competences, which
is a highly patent state of affairs, is providing food for thought as to the efficacy of
the dispensation of criminal justice. The shape taken on by the criminal justice pyramid
(a broad influx and a comparatively piddling out flux at every subsequent level) in
Belgium is considerably different from that in The Netherlands. In The Netherlands for
example, only a very minor proportion of registered offences is effectively handed over
to the public prosecution service. Of this small number, the local public prosecution
offices dismiss 11%, with 50% ending up before court, and 92% found guilty. Leaving
little doubt as to the efficacy of the system in place. In Belgium, the situation is the
exact opposite, with nearly all registered offences being transferred to the public
prosecution service. 78% of cases transferred are dropped, and a mere 7.9% goes to
court (70% of which are found guilty) (DEVROE,2006). In the light of the differences
outlined above, the so-called enforcement deficiency requires a shaded appraisal. It

37 This is the so-called „Autonome Politionele Afhandeling‟ (Autonomous Police Settlement) and the
„Vereenvoudigd proces-verbaal‟ (Simplified Police Report) (a list of minor offences kept by the police services
themselves which are no longer required to be handed over to the public prosecution service).
38 Wetsontwerp tot instelling van de functie van gemeenschapswacht, tot instelling van de dienst
gemeenschapswachten en tot wijziging van art. 119 bis van de nieuwe Local Government Act ((Draft Bill
pertaining to the institution of the position of Community Guard, the institution of the Community Guard Service
and in amendment of art. 119 bis of the new Local Government Act), Belgian Chamber of Deputies, 20 March
2007, doc. 51, 3009/001, 7079-52.
39 The Explanatory Memorandum does not contain any reference to this argumentation. The arguments for the
Introduction of Municipal Administrative Penalties was described on the basis of the tit-for-tat opportunities and
the so-called enforcement deficiency.
 29

could well be that the Belgian local public prosecution services purposely choose not to
prosecute this abundance of minor nuisance cases, since they are deemed to be of low-
ranking priority. After all, seen against the overall influx of criminal offences, such
cases are trifles. By having such offences administratively penalised, there is the risk
of undesired effects of net widening developing. In The Netherlands, the authorities
have been fastidious for quite a lot longer as to the influx into the criminal justice
pyramid, with traditional criminal law genuinely perceived to be an “ultimum remedium”.
By awarding the police services with a greater level of settlement competence, there is
less influx and operations are much more smooth-paced and efficient (DE WIT,2006).

We may well ask ourselves just where exactly the desired added value of this shift of
competences has been? Are the authorities keen to nurture and sustain the „ultimum
remedium‟ concept by settling offences outside of the criminal justice chain? Or is the
administrative enforcement policy sooner inspired by considerations of efficiency?
Obviously the judicial backlog that is characteristic of the traditional criminal justice
procedure does not go together with a tit-for-tat policy vision. By introducing the
administration enforcement, at least due account is taken of the absorption capacity of
the criminal justice system, whilst partially resolving the existing capacity issue.
However, in my opinion, this decentralisation policy has been rolled out in an ill-conceived
manner, contrary to The Netherlands where the police have been given increased
statutory ways to settle offences. In Belgium, the police services are required by law to
transfer most police reports to the public prosecution service. The Belgian community
policing policy attributes the police services with certain discretionary powers. In a
practical sense however, these discretionary powers are not accompanied by matching
settlement competences, with the latter being passed on directly to the local municipal
authorities.

Presumably the obligation to prioritise which has been installed in Belgium in pursuance
of the Act pertaining to the Integrated Police Services at Two Levels, served as the
occasion for making the distinction between less serious and more serious criminal
offences. The split into separate ways of settlement for each typology of phenomena
could be the logic continuation thereof. Only serious and complex cases merit to be
brought before the traditional criminal courts. Administrative enforcement comes with
a range of benefits in terms of swiftness and efficiency, custom-tailored responses and
the ability on the part of local councils to act. One may wonder however as to the
punitive potential of pecuniary fines. Financial penalisation, in my view, stands as a
unilateral punitive measure, which definitely should go hand in hand with alternatives
such as community service. The shift in competences requires an expansive set of
regulations, a kind of „administrative penalties‟ outline law used to delineate the concept
and establish the applicable substantive and formal law principles thereof.

Chapter 7: From decentralisation to custom-tailored and standardisation

 30

It is the statutory assignment of local councils to uphold public safety and public order.
Administrative enforcement offers the local mayor a forceful instrument to increase
local safety. After all, the mayor is best placed to provide a total product in which
various domains of competence are assembled (DEVROE,PONSAERS,2001). This is not
the easiest of tasks. The various aspects of safety policy are horizontal which means
they cut right across the vertical sectors of competences (integrality)
(CACHET,DERICKX,DE VOS,2007). On the other hand, it also requires due collaboration
(integrated policy) with a host of chain partners who each are chain links in their own
right (community organisations, police, public prosecution service, social services,..). In
Belgium, the policymaker attempted to instill an interest in the concept of prevention in
the towns and cities, through the so-called Pinster plan. This prompted safety and
prevention contracts to be concluded in an attempt to provide a specific response to a
specific safety issue, thereby effectively providing custom-tailored safety assurance.
The principal task consisted of prevention, with the positive side effect being a major
increase of employment in the cities. In contrast to current safety and prevention
contracts, the initial contracts showed a variety of different approaches. One and the
same contract (WILLEKENS,2006)40 for example would have a police component, a
prevention component, a criminal justice component and an urban regeneration
component. Thanks to the federal and regional governments acting as facilitators, local
councils adopted a very creative approach in setting out in search of solutions of their
own within the different sectors. The projects that originated as a result thereof, had
their own specificity, their own methodology and their own approach. As of the early
1990s, and in the area of prevention, the role of the federal (BAETEN,2006)41 or
regional42 authorities was confined to that of facilitator. The MAP regulations offered a
response to the demand for custom-tailored, be it from a punitive angle. This
decentralisation of repression not only effectively relieves traditional criminal justice
system from quite a few of its competences, but also serves to considerably augment
municipal autonomy. Meaning that problems can be defined, researched and resolved to
measure. With the assistance of administrative enforcement, local council have been
given the opportunity to lend shape to their very own tit-for-tat policy in a self-reliant
manner, obviously within the framework of an integrated safety policy. Effectively
resulting in custom-tailored repression, but is there any room left for custom-tailored
prevention? After all, any safety policy should first and foremost mean acting in a
preventive manner with the meting out of punishment as the „ultimum remedium‟.

40 The type of contracts involved are contracts between any given local council and the Ministry of Home
Affairs, in which the former is awarded subsidies in exchange for a number of schemes to be executed.
41 Intended are the efforts brought to bear by the Federal Minister of Home Affairs as well as those by the
Federal Minister of Urban Policy.
42 The subsidisation of the Social Impulse Fund by the Flemish Community springs to mind with the latter
awarding significant sums to local councils in Flanders aimed at promoting urban regeneration projects, with a
view to augmenting the sustainability and quality of life in the cities. Brussels Capital Region and the Walloon
Region too are offering financial support to the urban policy.
 31

The latest Ministerial Order43 by the Belgian Home Secretary is giving grounds for
concern. The name change from “safety and prevention contracts” to prevention plans is
reason to suspect there are snags involved. Said plans are laid out in a strategic sense
(for a 4-year term) which in itself is not a negative thing. However, the level of self-rule
which the towns and cities are made to sacrifice in return for this stability in terms of
subsidies is far-reaching and sooner veers towards standardisation than to custom-
tailored safety assurance. Where previously a multitude of creative flora would flourish
in schemes and projects44, now the priorities within which projects are required to be
rolled out, are being imposed by the federal authorities in a restrictive sense. The
priorities involved are those defined in the Federal Policy Statement (2005) with youth
crime as a complementary area of focus. Other priorities which are also deemed worthy
of attention in future contracts include: criminal offences against goods and persons,
techno prevention, community nuisance issues, the combatting of drug addiction, youth
crime and the protection of specific vulnerable social groups such as the elderly and
professions at risk such as the liberal professions and certain independent professions.
Which proffers a very narrow concretisation of prevention, in which the principal
welfare-oriented approaches (amongst other things in the area of drug dependency and
drug-related crime45) have been left out altogether. In recent months, local councils
have been busying themselves compiling action plans that do fit the new priorities,
reluctantly seeing how an experienced staffing configuration is made to disappear or to
try and find subsidies elsewhere. Possibly Flanders will be able to take over at least
some of these social preventive projects, that have been in place in towns and cities
across the country for many years.

Conclusion

All of the above goes to show a clear tightening of the grip which central policy wishes
to maintain over local council autonomy. In the Netherlands we can observe a similar
movement towards a greater grip from the central level. As prevention has always been
important, the „contract-driven‟ policy with measurement and evaluation in effectiveness
(how big or the costs compared to the results?) knows a far larger history in the
Netherlands than in Belgium. Even local police forces have to follow a strict policy of
guidelines pointed out in „contracts‟ with the ministry of internal affairs. Has this policy
reinforcement of control and supervision been inspired by the planning cycle that has
been installed as part of the amended Police Act? Is it always a logical step that follows

43 Ministerial Order dated 15 January 2007 pertaining to the Introduction of the Strategic Safety and
Prevention Plans 2007-2010, B.L.G. 30 March 2007.
44 Not in the least with focus of attention for social prevention, welfare-oriented schemes and permanent care
amongst other things in the area of drug dependency and drug-related crime.
45 Schemes involving the exchange of syringes, assistance provided by the MSOCs (Medical Social Care
Centres), etc. come to mind.
 32

big institutional changes? Does Belgium follow the example of the Netherlands with (the
last years) a more central oriented security policy and a tendency towards even bigger
police forces? After all, one of the requirements held out is that a clear connection
must be demonstrated between the execution of the contract and the result observed,
whilst also action plans and assessment schemes must be presented. Needless to say
that a direct causal link between a project and its social outcome is particularly arduous,
especially in the area of safety policy (DEVROE,2002) just to what extent the steering
role of a central government can go? Is the government acting in a strictly guiding,
facilitating sense or is it able to act in a steering and supervisory sense in relation to
local policy? And which is most efficacious? Whilst competences are being expanded at
the end of the chain (punishment) for local councils, competences are being curtailed at
the beginning of the same chain (prevention). Where is the surplus value? The
hyperelexia of statutory acts, decrees, byelaws, royal decrees, ministerial orders as
outlined above on the one hand and the priorities and focus points imposed by all manner
of policy papers and policy guidelines (federal, regional, district and municipal) on the
other hand, have effectively served to considerably narrow down the margin for
maneuvering open to local mayors as the directors of an integral local safety policy.

Moreover, the sheer complexity of regulations which at times are found to be at odds
can hardly be called conducive for elaborating a transparent local nuisance policy that is
intelligible to citizens. In Belgium the legal possibility to handle problems of local
nuisance was installed much sooner than in the Netherlands. As local mayors in Belgium
can, from the Act of 2005, conduct their own administrative punishment rules on minor
offences, in the Netherlands is this „Minor Nuisances at Municipal Level Act‟ still to be
voted and it still didn‟t come into effect. As such, it may be a while yet before the Act
is set to influence or rule over the criminal justice practice of reaching settlement in
criminal cases in full scope and effect. Of course, we have to see things into
perspective. In Belgium the need for an administrative way of conducting justice was
much bigger, as the public prosecution officers were overloaded. One million criminal
cases overflow the public prosecution offices in Belgium each year, and about 72% of
that amount is classified without consequences each year. In the Netherlands, the
police forces deal with most of the cases by directly punishing (transaction, HALT,
etc…) without sending the files to the public prosecution, which made the need of
creative ways of dealing with crime less urgent. In contradiction to the Belgium
situation, the public prosecution in the Netherlands shall win some competences that
belonged to the courts. In the described Act the further reaching option is proposed
for the public prosecutor to impose a penalty for certain punishable offences. Once the
proposed acts will be installed in the Netherlands, it would be very interesting to
evaluate the effects of this changes on the chain of justice in general and to make a
more detailed comparison between our two countries.
 33

We are convinced that the questions raised in this paper as to the policy approach of
nuisance issues in the public space are a long way away from being resolved. It is our
hope that this serves to stimulate debate.

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