Making the Political Offence Legal? The Interpretative Role of the Jury in the Belgian Legal Tradition

Abstract

The 1831 Belgian Constitution restored the jury trial for criminal matters, press offences and political offences. The latter was copied from the 1830 French Charte constitutionnelle, but despite the fact that this was a terminological novelty in the western legal tradition, no definition was given. The Belgian constituent did so on purpose, as it enlarged the interpretative role of the jury. In this regard, it was even attributed a double role, the jurors did not only have to judge on the substance of the case, but on the interpretation of the criminal provisions as well, which were often vague in political matters. However, in Belgian legal practice, the judicial authorities soon lost faith in jury trials and a case-law was developed which substantially narrowed the definition of the political offence, which eventually led to a fossilization of the constitutional ideal. Hence, professional magistrates have succeeded in developing a strategic way to avoid a popular judgment in political matters without violating the constitution.