Publication: Magyar Közlöny
Issue: MK-2007-147 (Year: 2007, Number: 147)
Era: 2004-2010
Section: 
Paragraph Index: 79

9. § If a suitable service weapon is not available, also other weapons, or means having the effect of a weapon, may be used by applying the provisions of the federal law mutatis mutandis. _____________________________________________________________________________ BELGIUM Particular arms, ammunition and equipment which are prohibited to be carried: For the cross-border operations provided in article 25: no prohibitions in Belgium For the other forms of cross-border operations: police officers are allowed to carry the arms, ammunition and equipment that they are allowed to use in Belgium. Particular arms, ammunition and equipment which are prohibited to be used: Belgium permits the use of the arms, ammunition and equipment listed in Annex 2 of the Treaty. The Seconding State’s officers operating on Belgian territory should take into account the following principles: • Belgium does not permit the use of firearms with a calibre that exceeds 9 mm; • Belgium does not permit the use of firearms in fully automatic mode; • Belgium does not permit the use of any type of handcuffs that can injure the apprehended person; • Belgium permits the use of pepperspray but does not permit the use of tear gas Chloroacetophone (CN); • Belgium does not permit the use of electric truncheons but permits the use of ordinary truncheons; • Belgium does not permit the use of TASER). Legal and practical conditions of the use of authorised arms, ammunition and equipment (art. 28). 2007/147/II. szám 1. Self defence Art 38 Law on the police function Without prejudice to Art 37, police officers are only allowed to use firearms against people if they are acting in self-defence. Art 416 of the penal code Committing homicide or assault in legitimate self-defence may not be regarded as a crime or as an offence. Explanation of Art 416 of the penal code. • Self-defence applies to everybody, not only police officers. • Acts of self-defence may occur against all kinds of violence, not only against firearms. • In order to be regarded as self-defence, any situation has to fulfil the following requirements: ∗ The assault has begun or is about to begin. The victim must not necessarily be in danger of life. Running a real and grave risk of being injured or wounded is sufficient. The assault is illegal. There is no self-defence against legal and justified assault. For instance, it is not allowed to use violence against legal police actions. ∗ The assault must be committed against people. In art 416 of the penal code, insults are not regarded as assaults against people. ∗ Self-defence must be necessary and proportional. If self-defence goes beyond the necessary limits, if the defence is more violent than the assault, it becomes an assault itself. As far as proportionality is concerned, the consequences of the use of a weapon must always be taken into account. For instance, hitting someone’s head with a claw may be as lethal as a gunshot. If you are not in a position to defend yourself in another way and if you are in danger of life, the use of a firearm is then justified. ∗ Defence must occur at the same time as the assault. Self-defence must not be a vengeance and, consequently, occur when the assault is over. 2007/147/II. szám Art 417 of the penal code Besides the provision of Art 416 of the penal code, two other cases can be regarded as self-defence. They are explained in Art 417 of the penal code: Both following cases may be regarded as legitimate self-defence: If homicide or assault has been committed while repelling, at night, someone climbing a fence or a wall or breaking into an occupied house or flat or their outbuildings, unless a constable considers that the person who climbed or broke in did not have the intention of making a murder attempt, either before his/her acts or as a consequence of the resistance of the occupants. If the fact occurred while defending oneself against authors of theft or looting with assault and battery. Giving a warning. In accordance with article 37 of the law on the police function, any resort to force must be preceded by a warning, unless this warning makes it ineffective. The important point here is that we can use a firearm in a preventive and repressive way. The preventive use of the firearm includes intimidating the opponent. In this case, no shot is fired. The firearm is only used preventively. The repressive use can be subdivided into three parts: a. Intimidation shot. An intimidation shot is fired when the policeman is not directly threatened. He fires in the air to intimidate the opponent. b. Warning shot. A warning shot is fired when the policeman is threatened. In this case, he does not fire at the opponent. c. Shot at people, animals or objects. This may occur in self-defence or in the other cases provided for in the law on the police function. In brief, we can state that the use of force is preceded by a warning. This warning may be a verbal order or a warning shot, unless this warning makes the resort to force ineffective or in case of self-defence. 2. The use of force In Belgium, firearms and ammunition can only be used in case of legitimate defence. In accordance with Art 28, paragraph 2 of the Treaty, however, the Belgian officer in charge of the operation may, in individual cases, give permission to use the other authorised arms and equipment for purposes going beyond the legitimate defence. However, the use of these arms and equipment will always have to be in accordance with the Belgian national law. 2007/147/II. szám Art 37: Law on the police function In the exercise of his duties, any police officer may resort to force, on the following conditions:

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