🚗 Fatal road accident: what does the new Criminal Code change for the driver facing prosecution?

Since 1 September 2026, the new Belgian Criminal Code has significantly changed the way fatal road accidents are dealt with under criminal law.

One of the most important changes concerns the fault attributed to the driver. A simple driving error may no longer necessarily be sufficient to secure a criminal conviction for involuntary homicide.

The court must now determine whether the driver committed a serious lack of foresight or precaution.

⚖️ Is a simple driving error still sufficient?

A road accident may result from a momentary lapse of concentration, an incorrect assessment of distance, a lack of attention or a delayed reaction.

Under the former Criminal Code, even a minor fault could, in principle, lead to a conviction for involuntary homicide if it caused another person’s death.

The new Criminal Code imposes a higher threshold. For the driver to be held criminally liable, a serious lack of foresight or precaution must be established.

The court must therefore distinguish between:

• 🟢 a minor fault or an isolated driving error;
• 🟠 a fault that is sufficiently serious to constitute a criminal offence;
• 🔴 aggravated conduct to which the law attaches a more severe penalty.

The fact that a person has died, however tragic, does not release the court from its obligation to examine the precise nature and seriousness of the driver’s conduct.

🔎 How will the court determine whether the fault was serious?

Not every road traffic offence can automatically be classified as a serious fault. The court must assess the specific circumstances of the accident.

It may take into consideration:

• the extent of the risk created;
• the manifestly abnormal nature of the conduct;
• the duration of the dangerous driving;
• visibility and weather conditions;
• the layout of the location;
• the road signs and signals;
• the vehicle’s speed;
• the driver’s level of attention;
• the driver’s experience and relevant personal circumstances;
• whether the accident was foreseeable or avoidable;
• the causal connection between the alleged fault and the death.

An isolated error of judgment cannot therefore automatically be treated as seriously reckless driving.

👉 This assessment will be decisive for the defence. Establishing that the driver breached a traffic rule will not be sufficient in itself. It must also be demonstrated that the fault reached the level of seriousness required by the new Criminal Code.

🚨 Can certain forms of conduct aggravate the situation?

The new system also takes account of certain particularly dangerous forms of conduct.

Subject to the conditions laid down by law, aggravating factors may include:

• 🍷 driving while intoxicated;
• 📱 using a mobile phone while driving;
• 🚦 driving through a red light;
• 🏎️ certain serious speeding offences;
• ⚠️ other conduct expressly identified by the legislation.

Where the statutory conditions are satisfied, the driver may face prosecution for an aggravated form of involuntary homicide committed in the context of road traffic.

This offence is sometimes referred to in everyday language as “road homicide”. However, the precise charge brought by the public prosecutor and each of its statutory elements must always be verified.

⛓️ What penalties may the driver face?

Involuntary homicide resulting from a serious lack of foresight or precaution in the context of a road accident is linked to a level 3 penalty.

This level includes a term of imprisonment of more than three years and up to five years.

Where the aggravated form provided for by law is established, a level 4 penalty may apply. This level provides for imprisonment of more than five years and up to ten years.

These sentencing levels do not mean that the driver will automatically receive the maximum penalty.

The court must individualise the sentence and consider:

• the circumstances of the accident;
• the actual seriousness of the fault;
• the driver’s previous convictions;
• the driver’s conduct after the accident;
• the driver’s personal and professional circumstances;
• any acknowledgement of responsibility;
• the consequences already suffered by the driver;
• the driver’s prospects of rehabilitation.

⚖️ The new Criminal Code also states that imprisonment must be regarded as a last resort.

📉 Mitigating circumstances become essential

Where mitigating circumstances are accepted, the court may reduce the applicable penalty level.

In a fatal road accident case, it is therefore essential to present all the elements demonstrating that a sentence within the initial level would be disproportionate.

The defence may draw attention to:

• the absence of any intention to cause the accident;
• the exceptional nature of the incident;
• the absence of previous convictions;
• a stable personal, family and professional life;
• the driver’s conduct immediately after the accident;
• calling the emergency services and assisting the victim;
• genuine remorse;
• the trauma suffered by the driver;
• psychological treatment or other steps taken following the accident;
• the absence of any pattern of dangerous driving.

🤝 The purpose is not to minimise the human consequences of the accident. It is to enable the court to impose a fair, proportionate and individualised sentence.

🩹 Does a criminal acquittal prevent the victim from receiving compensation?

Not necessarily.

The new requirement of serious fault may result in a situation where the driver’s conduct is insufficient to justify a criminal conviction but still constitutes a fault under civil law.

A distinction must therefore be made between:

• ⚖️ criminal liability, which now requires a particular degree of seriousness;
• 💶 civil liability, which may be established on the basis of a less serious fault;
• 🛡️ the involvement of insurers and the specific compensation mechanisms available to road accident victims.

The driver’s acquittal does not therefore automatically mean that the victim or the victim’s relatives will be deprived of compensation.

📅 What happens if the accident occurred before 1 September 2026?

Cases concerning accidents that occurred before the new Criminal Code entered into force require a specific analysis.

Under criminal law:

• a new, more severe law cannot be applied retroactively;
• a new provision that is more favourable must, in principle, benefit the person facing prosecution.

The new requirement of a serious lack of foresight or precaution may therefore be invoked in certain ongoing cases concerning accidents that occurred before 1 September 2026.

The court will notably have to compare:

• the elements of the former and the new offence;
• the required mental element;
• the former and new principal penalties;
• the additional penalties;
• the possibilities concerning mitigating circumstances, suspension of conviction and suspended sentences.

⚠️ This comparison must be carried out carefully. The more favourable law cannot be identified solely by comparing the amount of the fine or the maximum sentence.

If the accident occurred before 1 September 2026 but the victim died after that date, the time of the fault and the accident should remain decisive when determining the applicable law.

📂 Every accident requires an individual assessment

A fatal road accident is always a devastating event, both for the victim’s relatives and for the driver involved.

The new Criminal Code does not abolish drivers’ criminal liability. It does, however, require a more precise assessment of the seriousness of the fault and draws a clearer distinction between a driving error and seriously reckless conduct.

In such cases, it is essential to examine promptly:

• the police report and the officers’ findings;
• witness statements;
• any available images or video footage;
• the vehicle expert’s report;
• the vehicle’s speed and recorded data;
• visibility conditions;
• road signs and signals;
• the reconstruction of the accident;
• the causal connection between the fault and the death;
• the law applicable at the time of the events.

🚘 The legal classification may have a major impact on the finding of guilt, the prison sentence, disqualification from driving and the reinstatement tests.

📞 Are you facing prosecution following a fatal road accident?

Ms Séverine Vandekerkove, a lawyer specialising in road traffic law, examines the circumstances of the accident, the criminal classification, the expert evidence and the application of the new Criminal Code. She assists and represents you before the police court.

This article provides an overview of the general principles applicable since the new Criminal Code entered into force. Every case requires an individual assessment based on the date of the events, the precise charge and the coordinated legislation.