Suspension and deferral of penalties

In this blog post, we discuss alternatives to effective prison sentences. The criminal court is not always obliged to impose the statutory penalties in full or effectively. He may also prescribe sentencing modalities whereby the sentence may be suspended or deferred, provided that these measures are linked to specific conditions.

Read our blog post and find out more about this topic! Still have questions? Then don't hesitate to contact our office or make an appointment!

Suspension implies that the court considers the offences proven and finds the accused guilty, but does not impose a conviction or sentence.

In the case of deferment, on the other hand, the criminal court does pronounce a conviction or sentence when it finds the facts proven, but this sentence should not be effectively enforced until new crimes are committed.

In both suspension and postponement, the court sets a probation period of not less than one and not more than five years, during which no new offences may be committed.

Suspension is possible as long as the accused has not previously been sentenced to imprisonment for more than six months, while postponement can only be granted if there is no previous conviction of more than 12 months' imprisonment. Moreover, the offence itself must not carry a principal sentence heavier than five years.

However, deferral is excluded for certain sentences, such as forfeiture, sentence under electronic surveillance, community service, autonomous probation and substitute sentences.

The judge may attach specific conditions to the suspension or postponement. In this case, we speak of probation conditions or a probation deferral, which must be fulfilled during the probation period. The judge has considerable discretion in determining these conditions, such as attending courses, treatment or therapy, maintaining employment and a permanent address, compensating victims, etc. The convict must agree to these conditions.

Monitoring compliance with probation conditions is carried out by the probation commission. Each person under probation conditions is assigned a judicial assistant, who monitors the offender on behalf of the probation commission and reports regularly. If all conditions are met during the probation period, no further sentence execution follows. With probation deferral, the conviction remains listed on the criminal record. This is not the case for a suspension.

Failure to comply with probation conditions may result in modification of the conditions or even revocation of the suspension or postponement. However, the probation committee does not have the power to modify or increase the conditions itself. If conditions are violated, the probation committee reports this to the public prosecutor, who refers the case back to the court.

The court can revoke the probation, requiring the sentence to be executed immediately. The court also has the option to set new probation conditions. When the court decides to revoke a suspension, it can impose a sentence or set new probation conditions. Moreover, the postponement or suspension can be revoked in case new offences are committed.

Both a simple suspension and a simple postponement can be revoked under specific circumstances.

The suspension may be revoked if a new crime is committed during the probation period that results in a conviction to a criminal sentence or a capital prison sentence of at least one month. The same applies if the new offence results in a conviction under the Police Over Road Act.

A deferment is automatically revoked if a new crime is committed during the probation period that results in a criminal sentence or an unconditional main prison sentence of more than six months. The deferment may also be revoked if the new offence results in an effective main prison sentence of not less than one month and not more than six months. The deferment may also be revoked if the new offence results in a conviction under the Police Over Road Act.

A revocation will never happen automatically. The initiative lies with the Public Prosecutor's Office, which, however, is not obliged to do so. If revocation is sought, the public prosecutor will summon the person concerned to court. The court will then decide on the appropriateness of revocation, taking into account the concrete circumstances.

Contact our office for further questions or make an appointment to discuss your specific situation!