1In Belgium, the COVID-19 crisis was characterised by a prolonged legal emergency situation, which extended over more than a year and a half, from March 2020 to the end of October 2021, when the pandemic law was activated. This period – marked by the contested use of exceptional regulations [Thirion, 2020; Bourgaux, 2022] – constituted a field of experimentation. Following the example of certain European countries (including France), the Belgian government immediately adopted a resolutely repressive approach to the implementation of “Covid” measures, whereas other countries, such as the Netherlands, chose an approach centred initially on prevention [Terpstra, de Maillard, Salet and Roché, 2021]. Regardless of the approach taken, extrajudicial procedures – both criminal and administrative – were widely used, and their various territorial applications merit consideration [Gorton, Matthews, McVie and Murray, 2022]. In Brussels, as of March 2020, an unprecedented interrelation between criminal and administrative punishment gave priority to municipal administrative sanctions (hereinafter “MAS”) [Tatti, 2021: 779].
2At national level, the Brussels Region was the only region to implement this hybrid penalty system at the beginning of the first lockdown. More generally, this use of MAS was part of a growing movement to delegate the punishment of offences related to the use of public space to the local administrations. This “administratisation” of criminal justice, which began at the end of the 1990s, is rooted in local practices for maintaining public order, and has led to a diversification of rules concerning the use of public space, in the wake of its reorganisation, particularly for security purposes [Dessouroux, Van Criekingen and Decroly, 2009: 12-13]. In this context of social criminalisation (generational conflicts in a neighbourhood, waste management issues, etc) and the development of a social security state model [Cartuyvels, Mary and Rea, 2000], the mechanism establishes the extension of municipal competences regarding the police beyond the maintenance of public order, by emphasising the fight against antisocial behaviour, i.e. behaviour causing “public nuisance”. This polysemous concept is dependent on the political choices of municipalities, potentially justifying discriminatory policies against weaker social groups [De Hert, Gutwirth, Meerschaut and Vander Steene, 2008: 2-3; Lambert, 2015: 153-154].
- 1 This article is part of a PER-FNRS research project conducted at Université Saint-Louis – Bruxelles (...)
- 2 We would like to thank OBPS for its collaboration in the research, particularly for its help in col (...)
3This article analyses the use of MAS by the 19 Brussels municipalities between March and June 2020 in order to punish non-compliance with health measures. It was written within the framework of empirical research in law1, and is based on the compilation and processing of municipal figures on the processing of MAS for the year 2020, provided by the Observatoire Bruxellois pour la Prévention et la Sécurité (OBPS)2. Semi-structured interviews with representatives from municipal departments in charge of administrative sanctions have also been used in the analysis.
4Following a brief overview of the functioning of MAS under normal circumstances (1), we describe the outlines of and issues related to the particular regime in force in the Brussels Region for the punishment of offences in the area of health measures between March and June 2020 (2). The methodology for compiling the quantitative and qualitative data is then explained briefly (3). Finally, we present the results of the processing of the figures in relation to the interviews, in order to trace the outlines, differences and similarities regarding the administrative punishment of offences during the first lockdown in the 19 municipalities of Brussels (sections 4 to 6).
5MAS came into being with the law of 13 May 1999, in a context characterised by security policies focused on the local level [Cartuyvels and Mary, 2002]. The system allowed municipalities to punish – through administrative means – violations of municipal by-laws, which until then had been the responsibility of the public prosecutor's office and the courts. The aim of the new system was to divert cases and to avoid the dismissal of minor offences, which were practically no longer prosecuted. Successive legislative reforms, the latest of which dates from 24 June 2013, established the gradual extension of MAS. In addition to simple offences of a purely administrative nature, the municipalities became responsible for punishing mixed offences, listed exhaustively in the law. These offences – which are criminal in nature – can be included in municipal by-laws and acquire a mixed character. In fact, in the absence of prosecution by the public prosecutor's office, the sanctioning official can take over with the administrative procedure. Both municipal officials and police officers have the authority to record simple offences, but only police officers have the authority to record mixed offences. These include theft, assault and battery, profanity, defacement and a range of parking offences.
6The amount of the administrative fine is left to the discretion of the sanctioning official, with a ceiling of 350 euros. Alternative measures can be taken at the end of the procedure, such as a warning, community service, local mediation or parental involvement, which is mandatory when minors are concerned. The latter are subject to the MAS system from the age of 16, or even 14 in some municipalities. Finally, a person who is fined may challenge the decision in the police court.
7For some years now, informal working groups of Brussels sanctioning officials have ensured coordination among the latter and have served as an impetus for joint initiatives. In 2013, an informal structure was created, namely the network of sanctioning officials. The work of drafting a common police regulation for all 19 Brussels municipalities began within this group in 2015, with institutional support from the Region [Delvaux and de Buisseret, 2020: 49]. The adoption of the General Police Regulation for all 19 municipalities of Brussels (hereinafter “GPR”) took place in 2020, in the unusual context of the Covid crisis. While the date of its entry into force was agreed to be 1 March, the municipalities adopted it on different dates, ranging from March to autumn 2020.
8This harmonisation process was the result of the Sixth State Reform, the creation of Brussels Prevention and Security (BPS) and the establishment of the Regional Security Council (RSC), which brings together the municipal, district and regional stakeholders in Brussels to discuss issues related to security and prevention.
9Despite these convergence mechanisms, the use of MAS varies according to local policy choices, sometimes encouraged by the sanctioning officials themselves, as in Ixelles. Specific arrangements still exist, which reflect the diversity of issues and problems faced by municipalities and police districts, which in turn determine local priorities for the management of public space. Finally, the differences between municipalities are apparent in the responses to recorded offences, particularly with regard to the very unequal use of local mediation (often not promoted) [Distexhe, Dormaels, Hamerlinck, Lacour and Leprince, 2020: 39-40], which is not specific to the Brussels Region [Gotelaere, Schils and Jonckheere, 2021].
10A few days after the beginning of the lockdown, an informal agreement was made between the Public Prosecutor of Brussels, the 6 police districts and the 19 municipalities [de Buisseret, 2020: 11]. It provided that the municipalities would be responsible for punishing violations of the ministerial order of 18 March 2020, which contains unprecedented measures to prohibit and restrict access to public space (ban on gatherings and outings being limited to what was considered “essential”). Although these “Covid” offences were criminal in nature (and not mixed offences), the agreement provided that MAS would apply primarily to adult offenders, with the criminal procedure applied to “repeat offenders”, minors and companies.
11The legal formula chosen combined the bans contained in the ministerial order with a provision of the GPR (or of the municipal regulation still in force in municipalities which had not yet adopted the GPR) to punish the “failure to comply”. This consists in refusing to comply with the orders of the police officers in charge of enforcing the laws, regulations and by-laws. In concrete terms, Brussels citizens who did not comply with the restrictions on access to public space could receive a fixed administrative fine of 250 euros, which was based on the amount used by the public prosecutor's office. Only police officers were competent to establish reports in this context; municipal officials were excluded from doing so.
12The Brussels exception did not originate from a request from the municipalities. It stemmed from the concern expressed by the Public Prosecutor of Brussels that the public prosecutor's office and courts would be overwhelmed with cases related to non-compliance with lockdown measures, and would not be able to proceed with all of them. The president of the network of sanctioning officials – who was also a sanctioning official in Ixelles – played a key role. Building on the harmonisation work carried out in previous years, and “supported” by the context of crisis and confusion regarding the possibility of using MAS, he coordinated the implementation of the crisis system. While this legal construction – whose legality is questionable [Tatti and Guillain, 2023: 230-231] – provided a uniform basis for intervention at the level of Brussels, it was subject to diverging interpretations and applications by the municipalities.
13Following criticism from the college of public prosecutors, the federal government put an end to the Brussels system by adopting a royal decree of special powers on 6 April 2020. This decree made Covid offences mixed offences, punishable by both criminal and administrative means. The implementation of this new system did not occur at the same time in all of the municipalities of BCR. The implementation of the royal decree took place from 16 April to 4 May 2020, with each municipality having to pass an order implementing the royal decree for it to become effective. The fixed fine of 250 euros was confirmed, with no mention of the other measures provided in the law of 2013. In the case of mixed offences, only the police were competent. In this case as well, the Brussels Region was an exception: only 4 % of Flemish and 11 % of Walloon municipalities used the system, i.e. 41 municipalities (out of 581 in Belgium), including two cities with more than 100 000 inhabitants, namely Antwerp and Namur [FPS Interior - DG Security and Prevention, 2020: 100]
14This system remained in force until 30 June 2020, when the royal decree became null and void with the end of special powers at federal level. Despite the will of several local stakeholders to maintain the system – including the Public Prosecutor of Brussels and certain mayors Bruxelles Prévention et Sécurité, 2021 : 55 – it was not extended. This can be explained by the marginal nature of the system on a national scale, and by the exclusive and centralised resumption of criminal enforcement under the aegis of the college of public prosecutors. During the first three months of the crisis, the public prosecutor's office established the settlement procedure in terms of logistics and IT. From then on, for Covid offences, the payment of a sum of money cancelled legal proceedings.
15The figures presented in the fourth section have been compiled from the municipal files containing the statements of offence and MAS records received and encoded by the Brussels municipalities in 2020. These figures should be read with caution and are not meant to be exhaustive. Despite the use of the same software, each municipality chooses its own encoding method and criteria, and the files received were not uniform. Thirteen municipalities provided files in the form of an Excel spreadsheet, in which each line corresponds to a report drawn up by the police or by a municipal official and sent to the municipal MAS department. Three municipalities also sent data which they had compiled. For the sake of consistency and for a more detailed analysis, only the raw data files were used, sometimes with further information from the departments concerned. We would like to thank them for their collaboration. Finally, six municipalities provided data which had already been compiled and inserted into the table.
16The semi-structured interviews were conducted with representatives (sanctioning official or municipal official in charge of MAS cases) from 15 of the 19 municipalities of Brussels, with the exception of Brussels-City, Etterbeek, Jette and Schaerbeek. They made it possible to account for certain practices which did not stand out after a simple reading of the quantitative data, and specify the noteworthy similarities and differences on the scale of the Brussels region. Questions related to the general functioning of MAS and practices during the Covid crisis were sent beforehand, helping to guide the interviews and encouraging the interviewees to reflect on the period. The material is discussed here on the basis of questions used during data processing concerning the views of the “Covid” MAS system, practices in terms of the closing of cases without further action, and the policy on alternative punishment or measures.
17The following table provides information on the number of MAS reports drawn up by the police for Covid offences which were forwarded to the municipalities, as a proportion of all MAS cases. It provides a view of police activity (as well as that of municipal officials in columns D and E), and presents the number of cases processed by each municipality.
Table 1. Covid in reports and statements encoded in 2020
IND: data not available
* Figures deduced from the date of the incidents and not from the legal basis
** Figure taken from the 2020 OBPS report, included in the total for the 19 municipalities.
Column C: the figure corresponds to the addition of columns A and B. In some cases, only the figure for the full period was available.
- 3 In its 2020 report, OBPS recorded a total of 195 962 cases for the year 2020. The difference with t (...)
18In the Region as a whole, 190 598 cases were processed in 2020. This figure decreased slightly with respect to previous years, as OBPS recorded 199 072 cases in 2018 and 197 221 in 2019 [Distexhe, Dormaels, Hamerlinck, Lacour, and Leprince, 2020: 27].3
19The totals in columns D and E show that parking offences are by far the cases represented most in the Region: out of 190 598 cases, 76,8 % concerned this offence (23,2 % were not parking offences). This type of case accounted for 90,7 % of cases in 2018 and 92 % in 2019 [Distexhe, Dormaels, Hamerlinck, Lacour and Leprince, 2020: 33]. The decrease in 2020 can be attributed both to the decrease in the number of reports during the three months of the spring lockdown and to the increase in other cases, including Covid offences primarily [Distexhe, Dormaels, Hamerlinck, Lacour, and Leprince, 2021: 42]. The interviews reveal two reasons for the success of this type of case under normal circumstances: these offences are easy for police officers to record and they represent a financial income for certain municipalities. It should be noted, however, that the proportion of these cases varies greatly from one municipality to another, depending in particular on local policies which may or may not encourage the use of MAS in other disputes. In Ixelles, for example, parking cases represent only 42,7 % of the total. Conversely, in Saint-Josse, they represent 93,4 %.
20With regard to Covid files, the municipalities processed a total of approximately 12 999 reports (column C in the table). While they represent only 6,8 % of the total number of cases entered in 2020 for all types of dispute (columns C/E), they represent 29 % of the total number of cases excluding parking offences (columns C/D), i.e. nearly one third. This figure is significant, especially as it relates to the three-month period from 18 March to 30 June 2020 alone. By way of comparison, for the same period, 9 326 Covid files entered the Brussels public prosecutor's office [statistical analysis service of the Brussels public prosecutor's office, 2021: 2], a sign of the scale of the administrative punishment of offences during this period and the role it played in terms of unburdening the public prosecutor's office.
21Despite this high figure for the region, the number of cases is very unevenly distributed among the municipalities. The 5 most populated municipalities, namely Brussels-City, Molenbeek, Schaerbeek, Anderlecht and Ixelles, which represented 51,3 % of the regional population in 2021 Institut Bruxellois de Statistique et d’Analyse, 2021, account for 8 733 Covid files, i.e. 67 % of the total.
22The 7 municipalities in which the poorest neighbourhoods in Brussels are located (Anderlecht, Brussels-City, Forest, Molenbeek, Schaerbeek, Saint-Gilles and Saint-Josse-ten-Noode) and which were home to 55 % of the regional population in 2021 [Institut Bruxellois de Statistique et d'Analyse, 2021] account for nearly 70 % of the MAS cases, i.e. 9 029 cases out of the 12 999 cases in the region as a whole. One important limitation of the figures presented for the municipality of Saint-Gilles highlights the pitfalls of a purely quantitative approach, as well as the differences in processing between municipalities (see section 5). The data processing indicates a total of 452 Covid files (column C), whereas the interview reveals that there were approximately 1 000 reports received during the first period (see section 4.3), but that the majority of them were dismissed before being included in the municipal figures. To our knowledge, this is the only case in Brussels.
23The proportion of Covid files in the total number of files excluding parking offences also varies greatly from one municipality to another, depending on local policies on the use of MAS under normal circumstances as well as on choices made in an emergency. For example, in Saint-Josse, Covid files represented 96 % of all MAS files, excluding parking offences, compared to 14 % in Woluwe-Saint-Pierre. Furthermore, the number of Covid files comes in addition to the pre-existing issues of the management of and access to public space [Dessouroux, Van Criekingen and Decroly, 2009], the geographical diversity of each municipality, the strong socio-spatial inequalities in Brussels [Van Criekingen, 2021], as well as the different approaches to intervention within the police districts, bringing discriminatory practices to the foreground [Clementi, 2020: 12-13]. These differences have had a definite impact on the possibility for citizens to comply with restrictions on access to public space (all the more so in a context of increased police supervision), and hence an impact on the number of MAS cases [Tatti and Guillain, 2022: 294-297].
24The first two columns of the table break down the Covid reports from the first period (column A - under the legal regime of “refusal to comply with orders”, see part 2.1) and from the second period (column B - for each municipality, from the date of adoption of the municipal order implementing the royal decree on special powers, see part 2.2).
25There were just over twice as many reports drawn up in the first period compared to the second. Subject to the accuracy of the data marked with an asterisk and the details provided above regarding the municipality of Saint-Gilles, we see that 6 764 cases were entered on the basis of the GPR (or a former municipal by-law) as opposed to 3 221 on the basis of the municipal orders which came after it. This observation applies to the figures for all 15 municipalities for which data are available, with the exception of the municipalities of Forest, Woluwe-Saint-Lambert and Woluwe-Saint-Pierre. Notable differences exist for each municipality, with Molenbeek, for example, dropping from 1 375 cases to 180 (in a ratio of about 10 to 1) and Berchem dropping from 242 to 118 cases (i.e. about half as many).
26This observation is surprising given the precariousness of the legal construction chosen in Brussels at the beginning of the lockdown (see section 2.1). These figures are explained by the increased police supervision at the beginning of the lockdown, although this varies according to the municipalities and neighbourhoods. The interviews pointed to the fact that the change in the legal basis – following the adoption of the royal decree and the municipal orders – added confusion to an already complicated hybrid system, which may have led the police to favour criminal proceedings. Finally, the first measures for the ease of lockdown for public space date back to June 5, 2020, rendering certain offences null and void, with outdoor gatherings of up to 10 people allowed.
27Sanctioning officials have the option of closing the cases they receive without further action. Under normal circumstances, this practice is rare and occurs mainly due to technical reasons, i.e. the alleged perpetrator has been removed from the population registers, he or she could not be identified (for example in the case of illegal immigrants), or the report arrived after the deadline. However, there is nothing to prevent the sanctioning official from dismissing the case for reasons of expediency if he or she considers that charges are not warranted, but this possibility is rarely encountered.
28As regards Covid MAS, it is estimated that about 10-20 % of cases are closed without further action at regional level, which is a much higher rate than for ordinary disputes [Buisseret, 2020: 15]. With respect to the closing of cases without further action for technical reasons, we must add the cases of minors or adult repeat offenders who have been referred to the public prosecutor's office (see section 2). Given the lack of data for some municipalities and the differences in the encoding of cases for others, a comparative table would not be very relevant. However, two observations concerning the closing of cases without further action for reasons of expediency emerged from the interviews.
29Firstly, the use of this procedure is largely dependent on the more or less accommodating interpretation of the “Brussels DIY” from the first period (see section 2.1). Some municipalities considered that the ministerial orders containing the measures constituted a sufficient injunction, so that the refusal to comply with orders did not have to be recorded in the reports they received. The police only had to record the non-compliance with the measures in order to book an offender, without first having to ask the citizens to comply with them. Others – more respectful of the regulation – considered that each report should clearly state the refusal of the offender to comply with the police officer's orders. These differing interpretations had an effect on police practices and therefore on the number of cases. Secondly, they influenced the processing of cases by sanctioning officials, according to the doubts expressed by some regarding the soundness of the legal basis and its interpretation.
30There are also important differences in the practice of closing cases without further action. As explained above, in the context of Covid files, the municipality of Saint-Gilles practiced an initial closing of cases without further action directly upon receipt of the reports (see section 4). Other municipalities such as Woluwe-Saint-Lambert, Berchem and Evere, encoded all of the reports received, but did not follow up on those in which there was no record of a refusal to comply with orders. Others such as Molenbeek followed up on all of the reports received, using their discretionary power when having to decide on the punishment.
31The cases which were not closed without further action followed the usual procedure, which involves sending an initial letter along with the report, informing the citizen of the possibility of MAS, as well as the possibility to present his or her case. Then, either the person defends him or herself and his or her case is reviewed, or the fine is imposed if there is no response within the one-month period. A majority of municipalities reported a high number of disputes regarding Covid MAS. An estimate by the sanctioning official in Ixelles puts the number of appeals at about 30 % of the cases, whereas the percentage is quite low under normal circumstances. This finding is mainly due to the numerous situations reported by police officers, as well as to the debate covered by the media surrounding the question of the legality of the use of MAS during the first lockdown.
32With regard to the penalties imposed, some sanctioning officials did not question the fixed amount of 250 euros, as the principle is modelled on that of parking offences. Others expressed reservations regarding the relevance of a fixed amount for offences which were subject to interpretation, as well as its appropriateness with respect to the socio-economic realities of citizens. Despite these considerations, the fixed fine was usually applied. Very rare adaptations of the amount were made, such as in Saint-Gilles, where the fine imposed could be less than 250 euros. Other municipalities adhered to a policy of deterrence, and did not follow up on cases in which offenders filed a complaint. This was the case in Watermael-Boitsfort.
33Finally, based on practices which existed prior to the crisis, some municipalities resorted to alternative measures. Since local mediation is complicated in the context of a total lockdown, they turned to community service. The municipality of Ixelles proposed community service consisting of making or distributing masks in letterboxes, participating in food parcel distributions with the CPAS or delivering food shopping to the elderly. The same approach was found on a smaller scale in the municipalities of Saint-Josse-ten-Noode and Woluwe-Saint-Lambert.
34The use of MAS in Brussels during the Covid crisis was intended to allow the rapid punishment of offences which were unprecedented in their impact on the use of public space. The speed and effectiveness of the punishment of antisocial behaviour in the public space were already the main arguments which led to the adoption of the MAS law in 1999. The constancy of these concerns reveals the aporia between security discourses and policies centred on the “fight against impunity” and the means used at the level of criminal prosecution and the judiciary.
35Despite some reservations and even reluctance on the part of several municipalities, all responded quickly to the request. At regional level, the figures show that they played the role expected of them fully, namely to relieve the criminal justice system of some of the Covid files. This crisis system also enabled the public prosecutor's office to organise itself materially in the spring of 2020 in order to ensure the rapid punishment of Covid offences through the settlement procedure mechanism, which was the only one used as of July 2020.
36Various stakeholders in the field (the Public Prosecutor of Brussels, the president of the network of sanctioning officials as well as the sanctioning officials) played a central role in formalising the system. The institutional consultative bodies at regional level, which had been at work for several years in the Brussels Region and brought together the municipalities and police districts, then made it possible to implement the common Covid MAS system. Despite this upstream harmonisation, the application of Covid measures and the processing of reports varied from one municipality to another, illustrating the distinction between normative (at federal level) and procedural (at regional level) production, and how they were rendered spatially at local level. The different “localised legal orders” [Melé, 2009: 8-9] which resulted were the result of the action of local authorities (police districts, municipalities and sanctioning officials).
37However, in terms of MAS, the municipalities remain largely autonomous: the choices are visible in terms of the processing of reports, the follow-up given and the penalties imposed. These differences undermine the theoretical principle of the equality of citizens before the law and led to discriminatory situations. However, they also led to positive adjustments, particularly in terms of proceedings and, more rarely, penalties. Municipal autonomy, and therefore the discretionary power of sanctioning officials, generates both inequalities and adaptations, characteristic of the different forms of local justice. The procedure for challenging MAS testifies to this local aspect and the desire to hear the citizens and their explanations, which also emerges from the interviews. This represents a significant difference in how cases were dealt with, compared to the settlement procedure used by the public prosecutor's office, which sacrificed its discretionary power and the rights of defence in the interest of efficient law enforcement.
38More fundamentally, the diversity of local realities, particularly visible (and foreseeable) at Brussels level, has called into question the relevance of general crisis measures, intended to apply to very diverse geographical and socio-economic situations without distinction. Staying at home during lockdown (when possible) did not mean the same thing for all Brussels residents [for Brussels-City, see: Fortunier and Rea, 2021], nor did the implementation and enforcement of Covid measures in the public space. Since “law and space are mutually constitutive” [Belaidi and Koubi, 2015: 3], a regulation cannot and should not be considered outside of its relationship to the contexts (social, economic and geographic) in which it applies.
39In the wake of the Covid crisis, it is time to take stock of MAS. On the one hand, bills introduced in the House call for the extension of the list of mixed offences, particularly in the area of drug use in the public space. The public prosecutor's office, on the other hand, has recently extended the settlement procedure, in an attempt to reintegrate disputes related to the management of public space into the criminal circuit. The extension of these “rapid sanction” mechanisms is part of the increase in control mechanisms for public space and the uses which develop [Debailleul and De Laet, 2021]. This security context, fuelled by a series of crises (economic, terrorist, health and now environmental), raises the question urgently as to the role of the law in the public space, whether it is a tool of unequal enforcement which reinforces spatial segregation, or a guarantor of fundamental, collective and individual rights and freedoms.
Thank you to the interview participants, OBPS, Christine Guillain (USL-B), Alexia Jonckheere (INCC), Allan Wei (LIEU) and Clément Hostein.
