Belgium

National context

Belgium has been recently held in violation of article 3 by the ECtHR through a quasi pilot-judgment in Vasilescu v. Belgium[1] for inhuman and degrading treatment and for the deplorable detention conditions during the applicant’s confinement. As a result of prison overcrowding, the applicant claimed he had had to sleep on the floor on a mattress. Mr. Vasilescu spent a total of 60 days in a cell in Merksplas which lacked the availability of a toilet and running water. In both prisons, the applicant claimed they had been deprived of adequate medical care for his back condition and had been subjected to discrimination related to prison conditions and early release. The Strasbourg Court stressed that the problem of prison overcrowding in Belgium, and the subsequent issues of unhygienic and outdated prison institutions, were structural in nature and did not concern Mr. Vasilescu’s personal situation alone. The Court followed the reasoning of the CPT concerning the issue of overcrowding which concluded, on more than one occasion, that the adverse effects of overcrowding cause inhuman and degrading detention conditions. In such circumstances, all services and activities within a prison are affected, especially minimum requirements in terms of hygiene and health conditions. Consequently, in such settings, the overall quality of life is lowered and the level of overcrowding can be of such a nature that it breaches Article 3. The Strasbourg recommended that Belgium envisaged the adoption of general measures guaranteeing prison conditions compatible with article 3 of the Convention along with an effective legal remedy which would put an end to the alleged violation or allow would improve their detention conditions.

The current Belgian government has vowed to replace short prison sentences with alternative sanctions and to tackle the issue of prison overcrowding not only by increasing prison capacity but also in combination with other measures. What these other measures shall consist of has not yet been defined. However, in his policy statement of the current Belgian Minister of Justice has stated that there was indeed a need to build more detention infrastructure. Various measures have been adopted to increase prison capacity such as replacing dilapidated prisons and favoring alternatives to imprisonment. Firstly, prison capacity was increased significantly through the Masterplan by opening 3 new prisons (Beveren, Leuze-en-Hainaut and Marche-en-Famenne) increasing the capacity of 936 prisoners[2]. According to the Belgian government, New prisons meet current standards for detention:

– An individual minimum space in cell exceeds 4m

– Cells are equipped with water supply and toilet

– In collective cells, the toilets are partitioned

Measures have also been taken to promote alternatives to detention, including a reinforcement of the electronic monitoring and an increase in the quality of monitoring of sentences, work and Probation, meaning lower revocations and therefore incarcerations. In this regard, increased use of electronic monitoring is observed (from 1012 inmates on September 1, 2010 to 1151 on 1 September 2015. Belgian authorities have also opened the Forensic Centre of Ghent which has placed 260 internees outside prison infrastructure. Such a measure has reduced the number of internees hosted by penal institution. Finally, Belgian authorities have worked to the acceleration of foreigners convicted of deportation proceedings not in order to stay, making double the number of deportation in less than a year[3]. To this end, the 1817 Ministerial Circular (provisional release to convicted prisoners to sentences of 3 years or less) gives the possibility of removing the inmates living in Belgium 4 months before the legal date of eligibility for provisional release.

According to the Belgian government, there is statistically a sharp decline from last overcrowding of almost 25% in June2013 and -8% in September 2015. According to the same authority, the Belgian prison population has also begun to drop and rose from 11 854 detainees on 15 April 2014 to 11,074 inmates on 2 February 2016. Belgium’s ambition is to keep on reducing the prison population in order to reach less than 10,000 prisoners while further increasing prison capacity.[4]

Three new prisons should still emerge in the coming years; Dendermonde (444 places) and Haren (1,190 places) and Antwerp (444 places). New measures are underway to reduce further the number of internees hosted by penal institutions. Among these, there may be mentioned the following measures which will have a direct structural impact on the prison population. In the course of 2016, a second forensic psychiatric center in Antwerp hosting 182 internees will open. Two units for long stays of 30 places each should also open their doors on 1 April 2016: the Regional Psychiatric Centre “the chestnut” in Tournai and the psychiatric hospital in Sint Kamillus Bierbeek. On the legislative front, electronic monitoring, which was not possible for people in preventive detention as to settlement of the proceedings, has been extended thanks to a law passed by the House of Representatives on January 28, 2016[5].

The Belgian authorities refuse to create new remedies as requested by the European Court but only to take measures to improve the effectiveness of the existing remedies. The Belgian authorities report indeed recent developments regarding the use of the application for interim measures (relating to poor and bad prison conditions) and claims for compensation[6].

Another pilot judgment against Belgium is the case of Bamouhammad v. Belgium[7] (application no. 47687/13) in which the European Court of Human Rights held, unanimously, that there had been a violation of Article 3 of the European Convention on Human Rights, and also a violation of Article 13 taken together with Article 3. The case concerned the conditions of detention of Farid Bamouhammad and the resulting decline in his mental health consisting in a Ganser syndrome (or “prison psychosis”).

The Court found in particular that the manner of execution of Farid Bamouhammad’s detention, involving continuous transfers between prisons and repeated special measures, together with the prison authority’s delay in providing him with therapy and refusal to consider any alternative to custody despite the decline in his state of health, had subjected him to distress of an intensity exceeding the inevitable level of suffering inherent in detention. The level of seriousness required for treatment to be regarded as degrading, within the meaning of Article 3, had thus been exceeded.

In addition, the Court recommended under Article 46 (binding force and execution of judgments)that Belgium should introduce a remedy under Belgian law for prisoners to complain about transfersand special measures such as those imposed on Mr Bamouhammad. In the Court’s view, it did not appear from the case file that the vast majority of the 43 transfers to which the applicant had been subjected over a six-year period had been justified by security imperatives in the various prisons or by any need to avoid a risk of escape. Also bearing in mind that most of the psychological reports agreed that the repeated changes of prison had had negativeeffects on his mental well-being, the Court was not convinced that a fair balance had been found by the prison authorities between the security imperatives and the need to ensure that he wasdetained in humane conditions.

The Court found that, at a time when Farid Bamouhammad was already being repeatedly transferred, his solitary confinement for a period of 7 years and the systematic prolongation of the special security measures for such a long time, combined with the decline in his mental health, were to be taken into account to assess whether the threshold of seriousness under Article 3 had been reached. The Court noted that the need for a psychological supervision of Farid Bamouhammad had been emphasised by all the medical reports. However, his endless transfers had prevented such supervision. According to the experts, his already fragile mental health had not ceased to worsen throughout his detention. The Court concluded that the prison authorities had not sufficiently considered the applicant’s vulnerability or envisaged his situation from a humanitarian perspective. The Court then observed the reports by professionals who, having direct knowledge of the applicant’s detention, had repeatedly taken the view since 2011 that his imprisonment, which had been virtually continuous since 1984, no longer satisfied its legitimate objectives, and who had advocated alternative arrangements. Despite these professionals’ views and the decline in Farid Bamouhammad’s state of health, the prison authorities had persisted in their refusal to improve his situation in the form of day release or prison leave.

In the light of the foregoing, the manner of execution of Farid Bamouhammad’s detention hadsubjected him to distress of an intensity exceeding the inevitable level of suffering inherent in detention. The level of seriousness required for treatment to be regarded as degrading, within the meaning of Article 3, had thus been exceeded and there had therefore been a violation of thatArticle.

Regarding Article 13 taken together with Article 3, the Court noted that, on account of the repeated prison transfers – circumstances voluntarily created by the authorities – the protection available from the urgent applications judge had not proved effective. It was because of the repeated transfers that, on two occasions, proceedings brought by the applicant had either become without object or had not enabled him to prove the urgency of the matter such as to justify the jurisdiction of that judge. The Court concluded that Farid Bamouhammad had not had an effective remedy by which to submit his complaints under Article 3. There had thus been a violation of Article 13 taken together with Article 3.

The Court took note of the introduction under Belgian law of a specific right of prisoners to complain to a complaints board attached to the supervisory committees in each prison. The relevant provisions had not yet entered into force, however, in the absence of a royal implementing decree. With that in mind, the Court recommended that Belgium adopt general measures: the introduction of a remedy adapted to the situation of prisoners who were subjected to transfers and to special measures such as those imposed on Farid Bamouhammad.

Bodies in charge of prisoners’ complaints

Remedies

In Belgium jurisdiction over prison cases is exercised by regular administrative courts. The Highest administrative is the Council of State competent for judging and assessing the legality of administrative decisions and acts passed by the government and its administration. Administrative Courts have important powers since they can annul, suspend or squash measures of general application enacted by the public administration including of course the prison administration.

Administrative Courts

The main source of external control in Belgium has until now been the administrative jurisdiction of the Council of State and the administrative courts below that are available in principle for all citizens (and thus for all inmates having an interest, whatever their categories). Administrative Courts have important powers since they can annul, suspend and squash measures of general application enacted by the public administration including of course the prison administration. Occupied during the Napoleonian expansion, Belgium inherited the French structure of the Council of State (Heirbaut and Storme, 2006) which is the highest administrative court. Yet, it is clear that the Councils of State composed of judges appointed for life as well as the human rights groups that intervene on behalf of prisoners do not play equivalent roles as regards the external supervision of places of deprivation of liberty.

Civil courts

Prisoners have also access to civil courts if they can argue that they directly suffer from an individual right violation. Substantive proceedings can thus be considered before civil courts, when an inmate is seeking compensation for damage related to a measure that undermines one of his personal rights[8]. However, the access to civil courts is very limited since their case law here is very thin: the urgency of the situations experienced almost always leads inmates to seize the President of the interim court, ie court in chambers[9].

Penal Courts

We can also evoke the jurisdiction of the criminal court when prisoners are victims of an offense. But again, facing an unequal power relationship and very long proceedings, prisoners regularly give up starting a fight they can judge lost before[10]. A very recent decision of the Criminal Court of Nivelles of 13 January 2014 seems to constitute an exception to this rule. The Court indeed condemned the prison governor, some deputy governors and several members of the prison staff for ill-treatment committed against a detainee on the basis of Article 417quinquies the Penal Code (degrading treatment) and 398 of the Criminal Code (intentional injury)[11].

Other proceedings

In Belgium (as in Ireland for instance), there is no fully independent non-judicial mechanism for the investigation of prisoners’ complaints. Some measure of external oversight of the most serious complaints has been introduced through the Prison Rules Act of 2005. The 12 January 2005 Belgian Prison Act on principles regarding prison administration and the prisoners’ legal status[12] incorporates the handling of complaints introduced in the European Prison Rules. The mode of complaints applied by the Belgian Prison Act is clearly inspired by the European Prison Rules and by the Dutch model of complaints. This principle is implemented thanks to a structure that oversees detention conditions, set up as a result of the law. The Act thus states that the Supervisory Committee, which is in charge of monitoring prisons and social welfare facilities, must create a sub-committee for the handling of complaints, the Complaints Committee, headed by a magistrate and made up of two other members (article 28). This Complaints Committee is in charge of examining the complaints made by prisoners (article 148) whatever their status. Additionally, the Central Prison Monitoring Council created as a result of the same Act was tasked with setting up a competent Appeals Committee to examine appeals lodged against Complaints Committee rulings (article 159). The Complaints Committee also gives rulings on some appeals relating to transfers, in cases where prison authorities have refused to examine the complaint lodged by the prisoner (article 165). The description of the most serious complaints, provided in the Prison Act of 2005 does cover complaints about prison conditions and healthcare. These issues can also be addressed through court litigation in addition to internal complaints procedures. Any prisoner can (at least in theory) access the courts, should the investigation of the complaint not be satisfactory.

The Prison Act of 12 January 2005 therefore enshrines a right of complaint before an internal organ which is the Supervisory Committee. It recognizes thereby the importance of a right. Lieven Dupont, the author of the 1997 draft of the Prison Act 1997, already stressed that it was an indispensable condition to guarantee the rights of detainees in an institutional context “in which the individual legal interests may be subordinated to the interests of the institution and to the primacy security and order” (Draft of the Prison Act 1997: 36). These requirements are clearly not met in Belgium, where the main oversight bodies – the Central Prison Monitoring Council and the Supervisory Committees – established as a result of the 12 January 2005 Prison Act are not functionally independent and are dramatically underfunded (Federal Ombudsman 2010 Report, p. 44). In Belgium, the authority to monitor prisons and social welfare facilities was entrusted by a 4 April 2003 decree to “supervisory committees”, designed to replace and professionalize the former administrative committees (Mary, 2013, 76). The decree also provides for the creation of the “Prison Monitoring Council” to replace the former Higher Prison Policy Council whose mandate expired in June 2002. The decree, which anticipated the final draft of the 12 January 2005 Prison Act, however differed from the initial bill prepared by the “Dupont Commission” on the essential point of the functional independence of the new organs from the Minister of Justice (Mary, 2013, p. 76). Where the Dupont Commission laid emphasis on the creation of independent external oversight bodies, the 2003 Royal Decree put the Central Prison Monitoring Council under the authority of the “Federal Public Service Justice” (art. 130), and established that this body could be presided by the Belgian Ministry of Justice whenever he or she attends Council meetings (art. 135§2). Regarding the supervisory committees, the decree states that they will oversee everything pertaining to the treatment of prisoners “on behalf of the Minister of Justice” (art. 131) and that in the event of a dispute between a prison director and a Supervisory Committee, the Ministry of Justice is in charge of settling the dispute on the basis of opinions given by the Central Prison Monitoring Council and prison authorities (art. 137§2). As Mary rightly points out, the 2003 decree “casts serious doubt on the actual independence of such supervisory bodies” (Mary, 2013, 77). This dependence toward the Minister of Justice is a characteristic feature that was enshrined in the 12 January 2005 Prison Act, in dispositions relating to the introduction of the Supervisory Committees (art. 27) and of the Central Prison Monitoring Council (art. 21) (Laurent, 2012).

However, some informal complaints have since been lodged with these Supervisory Committees. Part of their mission is indeed to receive some informal complaints brought by prisoners before them. More precisely, the Commissioner of the month designated in each supervisory committee to visit the prisons to which they are competent, at least once per week can decide on these complaints. Such complaints have also been filed and processed by the Supervisory Committees: essentially regarding the transfer of prisoners, the prison regime (isolation regime, specific regime as individual regime for security reasons…), the disciplinary system (disproportionate sanctions), sentence adjustments, the lack of activities and prison jobs and training, decisions considered as arbitrary (in the field of prison regime, visits, furloughs, prison leaves, conditional release…) and non transparent, authoritarian behaviors from the prison governance and from certain prison officers (and sometimes bad and degrading treatments such as in the prisons of Merkplas and Termonde), racist slurs, excessive surveillance, unjustified refusals of requests to work, stolen objects, the bad quality of food, hygiene problems (foam, mattresses, no sheets…), and inadequate or inexistent healthcare, psychiatric, psychological and medical treatments (overdoses) due to the lack of medical staff and prison overcrowding[13].

More specifically, some supervisory committees have highlighted the structural problems such as prison overcrowding and unsanitary conditions[14], and the difficulties proper to the more general organization of the prison system as a lack of budgetary resources and training for prison officers[15]. That is why these complaint mechanisms remain limited in the responses given there (handling complaints, when it exists, usually consists of their informal resolution through collaboration and meetings between the Commissioner of the month, the prisoner and local management of the prison[16]) especially as the supervisory committees are too few[17] and are experiencing recurring problems including logistical, material, human financial and vocational training shortages[18] (see above), as well as important difficulties such as occasional cooperation with the prison and medical authorities (held by medical secrecy) sometimes reluctant to cooperate[19]. Yet, overall, prisoners seldom exercise their right to make complaints. In 2007, for instance, only 37 complaints were filed in the judicial district of Ghent, and 83 in Termonde (Laurent, 2012).

The Belgian Federal Ombudsman has tended to stand in for the Central Prison Monitoring Council by collecting and addressing complaints lodged by prisoners but this has so far not proved effective (De Jemeppe, 2012). The Federal Ombudsman was established by the Belgian Act of 22 March 1995 as amended by the Act of 11 February 2004 (Belgian Official Gazette of 29 March 2004) and the Act of 23 May 2007 (Belgian Official Gazette of 20 June 2007). The main tasks carried out by the Federal Ombudsman are indeed to review citizens’ complaints regarding acts or operation of federal administrative authorities; to conduct investigations on the functioning of federal administrative services (at the request of the House of Representatives) and to prepare recommendations and reports for the parliament[20] to strengthen its existing control[21].

In this context, the Federal Ombudsman has replaced, albeit in a very limited way, some failing supervisory committees by collecting a small number of complaints brought by prisoners in order to address them. In response to these complaints, the Federal Ombudsman pointed thus essentially a lack of independence of external oversight of Belgian prisons (2010 report, pp. 44-46), the violation of a number of fundamental rights (2007 report, pp. 71-72) and the fact that many provisions of the 12 January 2005 Prison Act have yet to come into force (2010 report, pp. 46-47). According to the Federal Ombudsman, this situation creates a legal insecurity that can be detrimental to the fundamental rights of prisoners, particularly in matters of family (2007 report, pp. 70-71) and discipline (2010 report, pp. 47-48).

Remedies

Accessibility of remedies:

– access and simplicity of the procedure

Non-judicial authority

The procedure described by the 2005 Prison Act to bring a complaint is quite clear and offers in theory a chance for prisoners to challenge unfair decisions made by the Belgian prison authorities and to give them equal reasonable prospects of success. Each prisoner has just to fill a form to transmit it to the Complaints Committee. However in reality, Title VIII of the 2005 Belgian Prison Act and its provisions on the right of complaint and their treatment by the above bodies have still not came into force, which notably limit the possibilities of appeal against security measures, since the Council of State declared itself incompetent to rule on applications related to specific security measures based exclusively on safety considerations and prudence[22]. One of the reasons for the ineffectiveness of this right to complaint lies in the fact that a number of royal decrees implementing the 2005 Prison Act have still not entered into force. Additionally, these complaints are not forwarded to politicians, since the Central Prison Monitoring Council, which is in charge of passing on their contents in its annual report to the Justice Department, has for some time suspended its activities for reasons including the lack of funds and a secretariat. These remedies are consequently totally ineffective.

Court processes:

The access to the administrative Courts is hindered by the specific and technical competences it requires for barristers and solicitors in administrative law. This restricted access is enhanced by the extremely restrictive case law delivered by the Belgian’s Council of State and unlike its French counterpart. For instance, the Belgian’s Council of State has rejected actions for annulment of most rulings on prisons. In order not to jeopardize the functioning of the prison system and not to overlap with the prerogatives and competences of the judiciary power (Flaubert, 1989), the Council of State has defined its sphere of intervention by using the term ‘internal measure’ as a criterion of administrative litigation. This notion is used by the judge to reject appeals considered as inadmissible on the grounds that the contested measure is a measure governed exclusively by the internal functioning of the administration (Flaubert, 1988; de Beco, 1995).

The highest Belgian administrative court has indeed held, in the landmark De Smedt ruling (2003), that a measure taken to ensure smooth running and order in a prison that might cause inconveniences to prisoners due to its disciplinary character shall not be the subject of an action for annulment.[23] The area of competence exerted by the Council of State is very tight and narrow. Annulment is only possible if the object of the disciplinary measure is to punish a misconducting prisoner. To extend this case law to interned prisoners, the Council of State has based itself on article 95 of the ‘Règlement général des établissements penitentiaries’,[24] which states that “unless otherwise provided, this Regulation shall apply to all categories of interned persons”. Applying the aforementioned principle, the Council of State held in the Wagner ruling (2003) that a decision taken regarding a person interned in the social defence facility of Paifve that consisted in transferring him from the medical wing to the prison wing cannot be annulled, on the grounds that “the contested measure is not exclusively or mainly aimed at punishing the applicant; it is mainly dictated by the concern of better managing the applicant’s behavior as well as protecting other weaker patients from his influence”. The contested measure thus actually constitutes a “therapeutic, medical measure, and therefore an internal measure that is not subject to annulment by the Council of State”.[25] Likewise, in the Lambrechts ruling (2010), the Council of State established that a disciplinary punishment consisting of nine days in a bare cell and a suspended on television and canteen concerning a prisoner detained in the psychiatric wing of a prison did not justify an action for annulment on the grounds that the penalties provided for by the general prison regulations are applicable to all prisoners regardless of whether or not they are interned “without consideration to the consequences they might have on the (mentally ill) applicant’s situation and his ability to understand its meaning”.[26] In the case at hand, the Council of State considered that the measure did not aim to “humiliate or demean” the applicant and was merely a “disciplinary punishment” that was not “disproportionate or inappropriate” in light of the prison’s rules of conduct.[27]

The Council of State’s case law is not limited to the aforementioned internal measure; it also includes the “special safety measures” listed in articles 110 to 115 of the 12 January 2005 Act on prison administration and the legal status of prisoners. These special measures, taken by the director of the facility for a duration of up to seven days, are highly punitive, including placement in a high-security cell without objects, exclusion from group activities, surveillance during the day and the night and the deprivation of objects (article 112). In the Sekkaki ruling (2007), the Council of State held that such measures targeting an interned person whose behavior showed “serious signs of danger to order and security” for a duration of seven days was not subject to an action for annulment, under the grounds that while “it was based on the applicant’s behavior”, it was nevertheless “taken exclusively with a view toward maintaining order and security in prison”.[28] This case law also applies to decisions concerning the placement of prisons in a special security regime under articles 116 to 121 of the 12 January 2005 Prison Act. In the Halimi ruling (2012), the Council of State considered that the placement in a special security regime based on article 116 of the Act of an applicant interned in the psychiatric wing of a prison for several months did not justify an action for annulment. Referring to the landmark De Smedt ruling, the Council of State stressed that while the measure had be taken “on the grounds of the constant threat posed by the applicant”, it was an “internal measure”, not a “disguised disciplinary punishment”.[29]

The Council of State’s highly restrictive case law primarily reflects a refusal to exercise actual control over prisons. Unlike the French Council of State, which has extended its supervision to a considerable number of measures on prisons since the Marie ruling of 17 February 1995,[30] the Belgian Council of State refuses to rule on violations of a subjective right protected by the European Convention of Human Rights. In the Halimi ruling, the Belgian Council of State pointed out to an applicant denouncing a violation of article 3 of the ECHR that “if the applicant considers he is a victim of abuses committed by the prison authorities, it shall be up to him to bring this complaint to the courts that have exclusive jurisdiction over such matters under article 144 of the Constitution”,[31] i.e. the judicial courts – not the administrative courts. In the Sekkaki ruling, the Council of State argued that it had “no competence to rule on appeals against decisions taken by the prison governor”.[32]

Among the difficulties that hinder his intervention, three ones in particular should be pointed out. Firstly, the boundary between internal measure and disciplinary sanctions is tenuous and thin, as highlighted the problem of “disguised sanctions”. Some lawyers estimate that the censorship exerted by the State Council would be legitimate with regard to internal measures, a minimum when they “have the effect of significant changes in the legal situation of the prisoner”[33]. Then, the granting of a suspension is subject to the existence of a “difficult to repair serious harm” in the absence of immediate suspension of the act (art. 17§2 of the consolidated acts on the Council State). But the tendency to admit the existence of this condition appears more restrictive in recent years[34]. Furthermore, if the decision made by the Council of State has already been executed at the time of the hearing, the inmate will be considered as no longer able to argue for such damage[35].

The timidity of the Council of State also reveals the lack of pressure exerted by human rights groups and citizens on this administrative jurisdiction in prison matters. Unlike in other countries such as France and the UK, Belgian human rights groups have low financial and human resources; it has been observed that the latter factor is a condition of the effectiveness of appeals by activist groups (Epp, 1998; McCann, 1994). The Belgian branch of the Observatoire International des Prisons,[36] for instance, is too underfunded to have permanent salaried members, whereas its French counterpart[37] has thirteen, including one jurist specialized in judicial appeals.[38] Likewise, the “prison committee” of the French-speaking section of the Belgian Human Rights League[39] is mainly composed of experts working on a voluntary basis. Unlike groups such as Inquest[40] in the UK, created by families of individuals who died in prison to defend their rights,[41] the Belgian league has difficulty getting in touch with families of prisoners. While the Dutch-speaking section of the Human Rights League[42] has more resources and includes 6 permanent members, its activities also appear to be limited in the prison field, as is suggested by the fact that they have made no appeals before administrative courts or the ECHR, unlike British (Justice and Liberty) and French (OIP) human rights protection groups.

The number of appeals to administrative courts remains overall low. Another likely contributing factor is that these appeals demand considerable amounts of time, and require lawyers to be versed in administrative, prison and adjective law (Dejemeppe, 2012). Lastly, a more structural reason arguably lies in the fact that the unpriviledged background of prisoners works against them in a system where administrative courts favor those who have the necessary social, cultural and economic dispositions (Spire and Weidenfeld, 2011). Due to the combination of these factors, prison authorities have considerable discretion to deal with internal prison matters.

Regarding civil courts, their access is very limited since their case law here is very thin: the urgency of the situations experienced almost always leads inmates to seize the President of the interim court, ie court in chambers[43]. In the name of respect for individual rights, the interim judge (of the court in chambers) may well ‘order to the State to no longer impose on an inmate security measures or security scheme that does not meet the conditions of the 2005 Prison Act or appearing to be insufficiently justified’[44]. The intervention of the judge requires the infringement of individual rights of the detainee which appears to result from a fault commited by the authority in the exercise of its discretion (art. 584, §1, judicial Code). It is also necessary that there is “urgency” and that through his intervention, the civil judge does not interfere with the laws and principles governing the jurisdiction of the criminal courts. The consideration for speed is fragile: the interim measure is taken provisionally and does not bind on the decision made by the judge on the merits. Furthermore, the judge can check here the legality of the detention but in any case its opportunity which is exclusively controlled by the trial judge[45]. In other words, under the principle of separation of powers, the judge can make positive or negative injunctions to the administrative authority[46] but it can not ‘make the work carried out by the administration nor substitute himself to that authority, but he has to demonstrate a manifest error of assessment or an abuse of discretion’[47].

It is in this context that a limited case law has been developed by the interim judge in chambers on detention conditions in prison and on social defense since the eighties[48]. A number of cases belonging to specific fields have been considered by the judge in chambers admissible concerning illegal detention, imposition of special security measures, specific individual security system, transfers from one institution to another, strip searches, the refusal to grant or revocation of parole, the absence of transfer of an internee to a social defense facility, isolation for medical reasons (inmates suffering from AIDS) the right to information and the imposition of inhuman and degrading treatment[49] (Preumont 2003, 216-224; Berbuto, 2003; Van Den Berghe, 2006). We can alsonotice, in several recent decisions, the reference made to the case law of the ECHR concerning Article 3 of the Convention (prohibition of torture and inhuman and degrading treatment), or the reports drafted by the CPT, which tends to emphasize the growing influence of direct or indirect control by the European authorities on Belgian judges.

Regarding social defense and healthcare issues more precisely, the Brussels interim Court of First Instance (County Court in chambers) on 15 June 2011 (NR / 11/604 / C) ordered the Belgian State to implement the decision made by the Social Defense Committee of Ghent on November 8, 2010 within 14 days. The Ghent Social Defence Committee then decided the applicant’s placement at the Psychiatric Institute of Zelzate or at the Psychiatric Institute of Bierbeek Rekem, dependent on the State.

In the same sense, the Brussels Court of First Instance on 2 October 2012 (AR / 2011/13959 / A) sentenced a psychiatric institution to proceed to the assignment decision made by the Social Defence Committee of Antwerp on 19 January 2011 within 14 days.

The Court of Appeal of Liège rendered a judgment on July 13, 2012 (2012RF / 143) related to an internee who had brought a complaint before the judge of Liège to get his transfer to the social defense facility ‘Les Marronniers’. The judge ordered the Belgian State to transfer and the Walloon Region to welcome him ‘when a place becomes available’. The Court of Appeal confirmed this judgment.

On 5 November 2012, the Brussels Court of Appeal delivered a judgment (2012 / RF / 214) concerning an internee detained in the psychiatric wing of Lantin prison who had brought an application against the Belgian State, asking the Court to order his transfer to the social defense facility ‘Les marronniers’ (pursuant to the decision made by the Social Protection Committee). The Belgian state has cited intervention in the Walloon Region, which the establishment of social defense ‘Les Marroniers’. The primary Judge upheld the applicant’s request and ordered the Belgian State to transfer him to the social defense facility ‘Les Marronniers’, and obliged the Walloon Region, on which ‘Les Marronniers’ depends, to host him for under pain of penalty. The Court of appeal also granted the applicant’s request by condemning the Belgian State to transfer the internee to the social protection facility “Les Marronniers” as soon as space becomes available. However, the Court of Appeal held that the Walloon Region could not be condemned.

The interim Brussels Court of Appeal (in chambers) on 10 January 2013 (2012KR122) was indeed seized by an internee detained in a psychiatric wing in order to make the Belgian State condemn and ordered to transfer him to the social defense facility of Paifve under decision made by the Social Protection Committee. At first instance, his application was rejected, the judge considering that the urgency was lacking. The applicant appealed this decision and the Brussels Court of Appeal, after asking an opinion to a doctor, said that the circumstances in which the applicant found require his immediate transfer to the social defense facility of Paifve.

On 19 April 2013, the judgement delivered by the Brussels civil Court (RA 2011/5872 / A) was the judicial response to an application initiated by an internee to get a declaration by which his detention conditions was considered to be irregular and to order the Belgian State to offer him a specialized treatment for people with deviant sexual behavior in the month of the judgment. The civil court gave right to the applicant and ordered the Belgian State to provide the applicant with a specialized treatment for his sexual deviance within one month of the judgment. A penalty of € 5,000 per month late would be otherwise imposed by the state.

In a 3 May 2013 judgment, the Brussels civil court ordered the Minister of Justice to pay a monthly penalty payment of 5,000 euro to a person interned in a psychiatric wing unless the healthcare he required was immediately provided to him. This decision, made on the grounds of a breach of article 5 of the ECHR and of article 23 of the Belgian Constitution protecting the right to life in conformity with human dignity, could blaze a trail for judicial oversight by the courts[50].

The President of the court of first instance of Brussels, acting in chambers on July 16, 2013 (RG13/488 / C) condemned the Belgian state to make available to the applicant a psychiatrist for a half hour a week and a psychologist for 2 half an hour once a week to provide him the prescribed psychotherapy, to ensure the administration of psychoactive substances Pharmaceutical necessary and make possible prescribed therapeutic activities.

The Turnhout Civil Court of First Instance ordered on January 13, 2014 (12/2211 / A) the Belgian State to pay compensation of € 7,500 based in particular on the rulings delivered by the European Court of human rights in L. B., Claes Dufoort and Swennen cases.

This Belgian judicial review has been condemned by the ECtHR for its lack of effectiveness. In its judgment in Van Meroye c. Belgium in January 2014, the Court notes indeed the position taken by the president of the court of Turnhout, which explains that ‘the power of control exerted by interim judge over the current conditions of detention was completely marginal and he could only intervene whether the support and healthcare were totally absent’. The Court emphasized that “the research of an appropriate place of detention cannot be reduced to a prima facie review without serious consideration for the reality of the situation” and that no example of such a decision referred appears to have led to this type of control in the judicial district concerned. Consequently, the Court believes that ‘under such conditions, it (the Court) saw no any means available to the applicant to obtain efficient measures and reparation from the interim relief judge of the situation he denounced’ and concludes to the ineffectiveness of application for interim measures[51].

As for the Council of State, we cannot claim that the judicial review by the civil court of the legality of detention is inexistent. Marked by the constraints mentioned above, this control remains nevertheless very limited as opportunities remain low for the detainee to fight the decisions made by the prison administration in an unequal power relationship.

– legal aid

Courts:

There is nothing in the law in Belgium that requires that prisoners be represented in court cases relating to their treatment in detention. Prisoners can represent themselves, and can instigate proceedings, as well as judicial review or plenary proceedings, through direct petition. The complexity of proceedings, especially in administrative matters and evidential requirements, makes representation necessary.

Belgium has a main legal aid scheme, administered by the courts and by the Legal Aid Board. Litigants can be granted the legal aid and a barrister prodeo (nominated by the Legal Aid Board) who offers for free legal expertise, his assistance and representation (of the litigant) before the Court. The applicant must satisfy the Court that his income is less than 942 euros a month for an individual and less than 1210 euros for a person who is married or is responsible for a dependent person. A prison legal aid scheme is automatic for prisoners. Through this prison scheme, free legal aid through is granted to prisoners and to defendants subjected to the law on immediate trial who are both presumed to have low incomes.[52] The detainee has the right to all forms of legal assistance available in society and for legal aid under Article 508/1 of the Judicial Code.[53] In practice, the prison administration cooperates with the Legal Aid Board to determine how to offer to prisoners the opportunity to enshrine their rights to legal aid and to take collective initiatives of information and training on important legal topics.[54] In the prison, legal aid and assistance are scheduled and performed in a special room for a number of hours.[55] Legal assistance and legal aid is provided in the material conditions that guarantee the confidentiality of the interview with the inmate. In this regard, the solicitor who provides legal assistance or legal aid under the 2005 Prison Act shall be bound by professional secrecy.[56]

The solicitor on record in the case can engage the services of an interpreter and claim the costs of such assistance, provided that interpretation or translation is deemed essential to the preparation and conduct of their client’s case. Others costs of the proceeding such as expertise, copies, bailiff are not automatically covered and must be granted by the Legal Aid Board (after a request introduced by the solicitor).

Complaints under the 2005 Prison Act

Legal aid is available for complaints made under those procedures. In particular, in disciplinary proceeding, in complaints proceedings and in appeal against a decision made by the Complaints Committee, the Prison Act 2005 held that the prisoner is always assisted by a barrister. If the prisoner does not choose a barrister, the prison governor informs the President of the Bar the in order to provide him with a barrister.[57]

Characteristics of the procedure

– speed

The Complaints Committee

The Complaints Committee must decide as soon as possible and within 14 days following either the introduction of the complaint or failure of the mediation process described by the Article 153 of the 2005 Prison Act. Before pursuing the examination of the complaint, the Complaints Committee can, automatically or on proposal of the prison governor, pass on and transmit the complaint to the commissioner of the month, to allow him to propose and to organize a mediation between the prison governor and the prisoner and, as far as the agreement between them gives rise to it, to allow the prisoner to give up and withdraw his complaint (Art. 153 § 1er).

As far as he was formally mandated by the prisoner, the commissioner of the month informs the complaints Committee about the agreement and, when necessary, the withdrawal of the complaint by the prisoner (Art. 153§2). The withdrawal of the complaint puts an end to the procedure (Art. 153 §3).

Courts:

The passage of time does not help the detainees when litigating the administrative and civil Courts. It can take at least from a couple of months to one year to obtain a decision from the Council of State for cancellation of an administrative decision.

Regarding the application for suspension purpose and with the view of ensuring better protection, a procedure of extreme urgency for interim measures was introduced, exceptionally in 1991[58]. However, this procedure, which requires great diligence on the part of the detainee, has been dismissed under late application[59].

– contradictory

Courts

Regarding the administrative proceedings, the clerk’s office transmits the formal statements (in response to the application) written by the defendant to the applicant who has to file a reply (under the form of a formal written statement in response) within sixty days. This formal statement written by the applicant is primarily intended to respond to the arguments raised by the authority and may further contain clarification of the complaint, unless new elements occur after the introduction of the complaint. Even if the defendant would not have produced a formal written statement in response to the complaint, the applicant will nonetheless be invited to file pleadings. In the absence of reply or pleadings introduced within the deadline, the applicant will be deemed not to have interest in the case and the application will be rejected[60].

The case is then examined in public hearings. The hearing before the Belgian Council of State mainly takes place in writing and at the hearing, arguments are succinct. The applicant and the defendant are both enabled to formulate orally their necessary and relevant comments and reflections. The auditor then gives his final opinion, taking into account the latest submissions of the parties. The discussions are closed and the case is under advisement[61].

Complaints Committee

The 2005 Prison Act held that unless the Complaints Committee estimates that, without a more thorough examination, the complaint is obviously either unacceptable, or ill founded, the Complaints Committee can give to the plaintiff and the prison governor the opportunity to make, if they wish, verbal observations about the complaint (Art. 154. § 1). The Complaints Committee can also hear the prison governor and the plaintiff (in case of absence). In this case, the possibility is given to them to announce beforehand questions which they wish to see putting, and to get a declaration of the practical contents of their statement by the president of the Complaints Committee (Art. 154. § 2). The Complaints Committee can, either automatically, or at the request of the prison governor or of the applicant, collect both oral and written information given by third party (through third party intervention). If information is collected orally, the prison governor and the plaintiff can beforehand announce questions which they wish to see putting in their absence, and the practical contents of the statement are orally communicated to the plaintiff and to the prison governor by the president of the Complaints Committee (Art. 154. § 3). When the prisoner does no longer stay in the prison where the decision has been made and about which the complaint was brought, the Complaints Committee can decide: 1 ° that the prison governor and the plaintiff are only allowed to specify or to comment the complaint in writing; 2 ° that verbal observations can be formulated to a member of the Complaints Committee; 3 ° that, if verbal information is collected beside and given by another person, the prison governor and the prisoner can only ask written questions to this person (Art. 154. § 4).

In case of appeal before the Complaints Committee, the latter can decide: 1 ° that it allows the prison governor and the prisoner to comment on the appeal in writing; 2 ° that oral observations can be addressed to a member of the Appeal Committee; 3 ° or, if verbal information is collected by another person, it can allow the prison governor and the prisoner to ask written questions to this person[62].

– establishment of the facts

Complaints Committee

The 2005 Prison Act held that the Complaints Committee can decide to declare the complaint in all or in part acceptable (Art. 158. § 1st). § 2. The complaint is declared well founded and justified when the Complaints Committee considers that the attacked decision against which a complaint is brought (§2): 1 ° violates either an effective legal rule governing the prison or a binding provision of a convention in which Belgium takes part; or 2 ° must be considered, after evaluation of all the interests at stake, as unreasonable or inequitable. § 3.

Courts:

Concerning the administrative proceeding, the complaint must contain the decision for which the annulment or suspension is sought; the other party, namely the authority that has made the decision; a statement of the facts; a statement of the ‘means’ indicating the rules of law that have been breached and the way they were[63].

On the contrary, regarding civil proceedings, the applicant has to produce the evidence of a violation of his subjective rights.

– remedies

Powers of the judge:

Courts

Appeals can be lodged before the Council of State against decisions rendered by administrative courts. The Council of state constitutes the highest level of administrative courts and renders decisions (in cassation) which cannot be challenged.

Complaints Committee

The 2005 Prison Act held that decisions made by the Complaints Committee are motivated and can be challenged and squashed by the Appeal Committee of the Supervisory Committee[64]. The prison governor and the prisoner can both appeal against the decision of the Complaints Committee before the Appeal Committee of the Supervisory Body[65].

Looking forward to the decision of the Appeal Committee, the president can, at the request of the author of the applicant and after having heard the other party in the procedure, suspend in all or in part the execution of the decision made by the Complaint Committee[66]. The President has to inform immediately the prisoner and the prison governor about it. If the appeal is brought by the plaintiff, a copy is transmitted to the prison governor from reception of the appeal. The prison governor is obliged to communicate within twenty four hours in a written statement the observations and information that he considers useful for the appreciation of the legitimacy of the appeal, and these statements are immediately notified to the prisoner by the Complaints Committee[67].

The Complaints Committee rules on the appeal as soon as possible and at the latest fourteen days after the introduction of the appeal[68]. If the appeal is declared well founded and established, the Appeal Committee makes the decision that the Complaints Committee should have taken. The decisions of the Complaints Committee are immediately enforceable[69].

Courts:

Civil Courts can impose financial compensation and redress.

The administrative courts can either annul, suspend or squash the decision made by the prison authorities (see above).

Complaints Committee

As far as the complaint is declared well founded, the Complaints Committee cancels the aforementioned decision and can:

1 ° oblige the prison governor to set a deadline and a timeline by which he makes a new decision that takes into account the decision of the Complaints Committee 2 ° determine that his decision replaces the cancelled decision; 3 ° limit itself to a complete or partial cancellation of the decision[70]. In case of cancellation of the decision, the consequences of the cancelled decision are either deleted as far as possible or shaped in compliance with the decision of the Complaints Committee. As far as the consequences of the cancelled decision cannot be remedied, the Complaints Committee can grant (having heard before the prison governor) if necessary to the plaintiff a compensation with the exception of any financial compensation[71]. The decision made by the Complaints Committee is enforceable without prejudice to the possibility of appeal, except opposite decision taken by the president of the Appeal Committee[72]. In case of appeal, the decision of the Complaints tending to grant a compensation according to § 4 is however suspended.

– preventive remedies

Adequacy to structural problems

The complaint brought before the Council of State to ask the cancellation of an administrative decision could be considered as a preventive remedy (see above).

Regarding the case law developed by the Council of State that refuses to integrate the ECtHR case law into it (see above this jurisprudence), the control is such limited that it cannot tackle and address structural problems responsible for a violation of article 3 as the Strasbourg Court has pointed out.

– compensatory remedies

See above the complaints taken to the civil courts to get a financial compensation for any violation that has already occurred.

Procedures regarding disciplinary issues

Disciplinary authorities

According to the 2005 Prison Act, the prison governor has the power to impose disciplinary sanctions[73]. If the disciplinary offense was committed during transfer to another prison, the competence belongs to the director of the new prison. If the disciplinary offense was committed against a person invested with the power to impose disciplinary sanctions, that person should refrain from any intervention. As appropriate, the disciplinary competence is then exercised by the director or a member hierarchically superior of the prison administration, appointed by the Minister. If the disciplinary jurisdiction is exercised by a higher standing member of the prison administration, its decision is considered a decision made by the Prison Governor under section 148[74].

Regarding the disciplinary proceeding, at the conclusion of an inquiry into an alleged breach of discipline, the Governor will make a finding related to the allegation. If the Governor decides that a breach of discipline took place, he or she can impose a range of sanctions outlined in the Prisons Act 2005. These include, inter alia, a reprimand; confinement to a cell for a period not exceeding 9 days; prohibition of taking part in certain activities, or having visits or letter/phone contact with persons from outside; loss of up to 14 days remission. The Governor can suspend the execution of those sanctions, subject to conditions.

The administrative courts can control the lawfulness of disciplinary decisions (see above). However, this control is very limited since the Council of State has defined its sphere of intervention by using the term ‘internal measure’ as a criterion of administrative litigation. This notion is used by the judge to reject appeals considered as inadmissible on the grounds that the contested measure is a measure governed exclusively by the internal functioning of the administration (Flaubert, 1988; de Beco, 1995).

The highest Belgian administrative court has indeed held, in the landmark De Smedt ruling (2003), that a measure taken to ensure smooth running and order in a prison that might cause inconveniences to prisoners due to its disciplinary character shall not be the subject of an action for annulment.[75] The area of competence exerted by the Council of State is very tight and narrow. Annulment is only possible if the object of the disciplinary measure is to punish a misconducting prisoner. Likewise, in the Lambrechts ruling (2010), the Council of State established that a disciplinary punishment consisting of nine days in a bare cell and a suspended on television and canteen concerning a prisoner detained in the psychiatric wing of a prison did not justify an action for annulment on the grounds that the penalties provided for by the general prison regulations are applicable to all prisoners regardless of whether or not they are interned “without consideration to the consequences they might have on the (mentally ill) applicant’s situation and his ability to understand its meaning”.[76] In the case at hand, the Council of State considered that the measure did not aim to “humiliate or demean” the applicant and was merely a “disciplinary punishment” that was not “disproportionate or inappropriate” in light of the prison’s rules of conduct.[77]

Release

The sentence implementation Courts (in which a judge sits in each Appeal Court assisted by 2 assessors, one is an expert of social reintegration, the other one being an expert of the sentence implementation process), which exist since the 1st February 2007, oversee the implementation of sentences[78]. Any issues regarding implementation of sentences will be dealt with the sentence implementation judge except leaves and furloughs that are ruled by the Ministry of Justice[79]. Any appeal against the decisions made by the sentence implementation courts is brought before the highest civil court : the “Cour de Cassation”.

Any appeal against a sentence implementation measure decided by the sentence implementation court (which is a judicial organ) belongs to the highest civil court, ie the Supreme Civil Court, competent for the execution of penalties[80] and more precisely for:

  1. the deprivation of liberty;
  2. the granting, refusal or revocation of a periodic furloughs and review specific conditions,
  3. the granting, refusal or revocation of prison leave and review specific conditions,
  4. the granting, refusal or revocation of limited detention and review specific conditions,
  5. the granting, refusal or revocation of electronic monitoring and review specific conditions,
  6. the granting, refusal or revocation of supervised release, and revision of specific conditions, or
  7. the decision of refusing or granting the exercise at the disposal of the court in the enforcement of sentences.

After a cassation judgment delivered by the Supreme Civil Court, another Sentence Implementation Court has to reach a new decision within fourteen days from delivery of this judgment, the prisoner being held during this time in prison[81].

Prisoners’ rights protection and early release / alternative measures’ procedures

There is a disconnection and a split between them since there are not the same authorities making decisions on prisoners rights protection and on early release and alternative measures (see above). The split between the administrative and the civil orders limit the prisoners’ rights protection.

Courts

Regarding the administrative proceedings, the clerk’s office transmits the formal statements (in response to the application) written by the defendant to the applicant who has to file a reply (under the form of a formal written statement in response) within sixty days. This formal statement written by the applicant is primarily intended to respond to the arguments raised by the authority and may further contain clarification of the complaint, unless new elements occur after the introduction of the complaint. Even if the defendant would not have produced a formal written statement in response to the complaint, the applicant will nonetheless be invited to file pleadings. In the absence of reply or pleadings introduced within the deadline, the applicant will be deemed not to have interest in the case and the application will be rejected[82].

The case is then examined in public hearings. The hearing before the Belgian Council of State mainly takes place in writing and at the hearing, arguments are succinct. The applicant and the defendant are both enabled to formulate orally their necessary and relevant comments and reflections. The auditor then gives his final opinion, taking into account the latest submissions of the parties. The discussions are closed and the case is under advisement[83].

Generally, court processes are capable of holding the State responsible for a full range of breaches of prisoners’ rights although administrative and civil courts have developed a limited jurisprudence on prisoners’ rights (see above) due the restricted way they interpret their competence in administrative and civil matters (see above). In order to avoid from jeopardizing the functioning of the prison system and not to overlap with the prerogatives and competences of the judiciary power (Flaubert, 1989), the Council of State has defined its sphere of intervention by using the term ‘internal measure’ as a criterion of administrative litigation. This notion is used by the judge to reject appeals considered as inadmissible on the grounds that the contested measure is a measure governed exclusively by the internal functioning of the administration (Flaubert, 1988; de Beco, 1995).

The intervention of the civil Courts requires the infringement of individual rights of the detainee which appears to result from a fault committed by the authority in the exercise of its discretion (art. 584, §1, judicial Code). It is also necessary that there is “urgency” and that through his intervention, the civil judge does not interfere with the laws and principles governing the jurisdiction of the criminal courts.

Complaints Committee

The 2005 Prison Act held that unless the Complaints Committee estimates that, without a more thorough examination, the complaint is obviously either unacceptable, or ill founded, the Complaints Committee can give to the plaintiff and the prison governor the opportunity to make, if they wish, verbal observations about the complaint (Art. 154. § 1). The Complaints Committee can also hear the prison governor and the plaintiff (in case of absence). In this case, the possibility is given to them to announce beforehand questions which they wish to see putting, and to get a declaration of the practical contents of their statement by the president of the Complaints Committee (Art. 154. § 2). The Complaints Committee can, either automatically, or at the request of the prison governor or of the applicant, collect both oral and written information given by third party (through third party intervention). If information is collected orally, the prison governor and the plaintiff can beforehand announce questions which they wish to see putting in their absence, and the practical contents of the statement are orally communicated to the plaintiff and to the prison governor by the president of the Complaints Committee (Art. 154. § 3). When the prisoner does no longer stay in the prison where the decision has been made and about which the complaint was brought, the Complaints Committee can decide: 1 ° that the prison governor and the plaintiff are only allowed to specify or to comment the complaint in writing; 2 ° that verbal observations can be formulated to a member of the Complaints Committee; 3 ° that, if verbal information is collected beside and given by another person, the prison governor and the prisoner can only ask written questions to this person (Art. 154. § 4).

In case of appeal before the Complaints Committee, the latter can decide: 1 ° that it allows the prison governor and the prisoner to comment on the appeal in writing; 2 ° that oral observations can be addressed to a member of the Appeal Committee; 3 ° or, if verbal information is collected by another person, it can allow the prison governor and the prisoner to ask written questions to this person[84].

The organ in charge of complaints is not effective and does not deal with any complaints but is theoretically consistent with the nature and kind of complaints addressed to it despite its lack of independence towards the Ministry of Justice.

Concrete state of the protection of prisoners’ rights

Despite their limited scope, the decisions both made by administrative and civil courts are binding. Should a prisoner decide to institute court proceedings in relation to any decision taken as a result of disciplinary proceedings under the Prisons Act 2005, the decision of the Administrative Court binds the prison authorities. It is the same for civil courts regarding appeals against the sentence implementation process.

Financial considerations are important (the complaint costs 200 euros) when seizing administrative courts and the Council of state competent for controlling the legality of disciplinary sanctions.

There is a legal aid available in cases of proceedings before the Prison Governor for breaches of prison discipline (see above). There is also legal aid for appeals to the Complaints Committee and for proceedings before the Administrative and civil Courts. However, barristers who are nominated to assist prisoners are often young and inexperienced since legal aid is quite low. Aside from the reasons outlined above, financial and human resources in taking prison cases were of concern to lawyers and their clients. While legal aid is available for most prison law cases, the level at which it is provided (the amount) is often not sufficient to cover the costs of litigation (especially before the Council of State). The time commitment to prison cases is substantial – not just due to often complex legal issues and the division between civil and administrative litigation, but also due to practical considerations of time spent on correspondence with the prison authorities; legal visits to clients; uncovering of evidence, and so on (and the competence they require for lawyers and barristers can explain the very poor number of appeals to administrative courts). Costs can only and really be recovered if the case is successful, and even then these are not always recovered in full. While legal practitioners “try to litigate” prison cases, restrictions on legal aid play a significant part in the decision-making process regarding the taking of such cases. There is not enough money to be made on those, and it may therefore be difficult to attract lawyers to litigate in this field (see above).

Another likely contributing factor is that these appeals demand considerable amounts of time, and require lawyers to be versed in administrative, prison and adjective law (Dejemeppe, 2012). In this regard, the unprivileged background of prisoners works against them in a system where administrative courts favor those who have the necessary social, cultural and economic dispositions (for France see for instance, Spire and Weidenfeld, 2011). Due to the combination of these factors, prison authorities have considerable discretion to deal with internal prison matters.

Furthermore, there are no NGOs in Belgium that undertake litigation on behalf of prisoners. The lack of pressure and litigation exerted by human rights groups and citizens is significant both on the administrative and civil jurisdictions in prison matters. Unlike in other countries such as France and the UK, Belgian human rights groups have low financial and human resources; it has been observed that the latter factor is a condition of the effectiveness of appeals by activist groups (Epp, 1998; McCann, 1994). The Belgian branch of the Observatoire International des Prisons,[85] for instance, is too underfunded to have permanent salaried members, whereas its French counterpart[86] has thirteen, including one lawyer specialized in litigation and judicial appeals.[87] Likewise, the “prison committee” of the French-speaking section of the Belgian Human Rights League[88] is mainly composed of experts working on a voluntary basis. Unlike groups such as Inquest[89] in the UK, created by families of individuals who died in prison to defend their rights,[90] the Belgian league has difficulty getting in touch with families of prisoners and does not make prison litigation a high priority. The only case brought before a Court was in 2011 about prison overcrowding in the St Gilles prison.

While the Dutch-speaking section of the Human Rights League[91] has more resources and includes 6 permanent members, its activities also appear to be limited to communication and assistance to prisoners in the prison field, as is suggested by the fact that they have made no appeals before administrative and civil courts nor the ECHR, unlike British (Justice and Liberty) and French (OIP) human rights protection groups.


[1] ECtHR in Vasilescu v. Belgium, 25 November 2014, application no 64682/12.

[2] Committee of Ministers, Action Plan communicated by Belgium, DH-DD(2016)153, 12 February 2016, 4.

[3] Ibid., 5.

[4] Ibid., 6

[5] Ibid.

[6] Ibid.

[7] ECtHR in Bamouhammad v. Belgium, 17 November 2015

[8] Final Court of Appeal, 21 March 1985, Pasicrisie, 1987, I, 108.

[9] Berbuto S., Mary Ph., Neve M., 2007, Garantir les droits en prison : droit de plainte et recours judiciaires, Le nouveau droit des peines : statuts juridiques des condamnés et tribunaux de l’application des peines, Bruxelles, Nemesis-Bruylant, p. 139.

[10] Berbuto S et al., op. cit., p. 136.

[11] Nivelles Penal Court, 3d chamber, 13 January 2014.

[12] Prison Act of 12 January 2005 related to the management of prisons and the prisoner legal status, Moniteur Belge 1 February 2005.

[13] 2005 Report drafted and released by the Central Monitoring Council, 2005, pp. 9 et 10; 2006 report, pp. 11-14; report, pp. 7-13; 2008-2010 report, pp. 19-21, 24- 29, 31-32, 36, 38-42, 44.

[14] 2008-2010 Report drafted and released by the Central Monitoring Council, pp. 19 and 24.

[15] 2005 Report drafted and released by the Central Monitoring Council, p. 8; 2008-2010 report, p. 22.

[16] See the 2005 report of the Central Monitoring Council, pp. 7-8.

[17] 2008-2010 report of Central Monitoring Council, p. 50.

[18] See for instance the 2005 report of the Central Monitoring Council, p. 5; its 2006 report, pp. 5-9; its 2007 report, p. 1, 3-5; and its 2008-2010 report, pp. 15-17.

[19] 2008-2010 report of Central Monitoring Council, pp. 16 et 38.

[20] Le médiateur fédéral a été institué par la loi du 22 mars 1995 modifiée par la loi du 11 février 2004, Moniteur Belge du 29 mars 2004 et par la Loi du 23 mai 2007, Moniteur Belge du 20 juin 2007.

[21] Report from the Federal Ombudsman, 2000, p. 55.

[22] Mary P. (2013) Enjeux contemporains de la prison, Bruxelles, Publications de l’Université Saint-Louis Bruxelles, p. 100.

[23] Conseil d’Etat, section d’administration, 11 mars 2003, arrêt De Smedt c. Etat belge, 3-4.

[24] Arrêté du 21 mai 1965 portant règlement général des établissements pénitentiaires, M.B. 25 mai 1965.

[25] Conseil d’Etat, section d’administration, 10 octobre 2003, arrêt Wagner c. Etat belge, 3-4.

[26]Conseil d’Etat, section d’administration, 10 juillet 2000, Lambrechts c. Etat Belge, 4.

[27]Conseil d’Etat, section d’administration, 10 juillet 2000, Lambrechts c. Etat Belge, 4-5.

[28]Conseil d’Etat, section d’administration, 31 mars 2007, Sekkaki c. Etat belge, 4.

[29]Conseil d’Etat, section d’administration, 6 décembre 2012, Hilami c. Etat belge, 9.

[30] Conseil d’Etat, 17 février 1995, Marie c. Etat français, n° 97754.

[31] Conseil d’Etat, section d’administration, 6 décembre 2012, Hilami c. Etat belge, 10. Voyez aussi Conseil d’Etat, section d’administration, 31 mars 2007, Sekkaki c. Etat belge, 3.

[32] Conseil d’Etat, section d’administration, 31 mars 2007, Sekkaki c. Etat belge, 3.

[33] Andersen R., 2009, Le Conseil d’Etat et le détenu, Liber amicorum H.D. Bosly. Loyauté, justice et vérité, Bruxelles, La Charte, p. 4.

[34] Beernaert, M.A., 2012, Manuel de droit pénitentiaire, Bruxelles, Anthémis, p. 376.

[35] Council of State, Bamouhammad ruling, n° 216.389, 22 November 2011.

[36] http://www.oipbelgique.be/

[37] http://www.oip.org/

[38] See the report on France.

[39] http://www.liguedh.be/

[40] www.inquest.org.uk

[41] See the report on the UK.

[42] http://www.mensenrechten.be/

[43] Berbuto S., Mary Ph., Neve M., 2007, Garantir les droits en prison : droit de plainte et recours judiciaires, Le nouveau droit des peines : statuts juridiques des condamnés et tribunaux de l’application des peines, Bruxelles, Nemesis-Bruylant, p. 139.

[44] Beernaert M. A., 2008, Sanctions disciplinaires versus mesures de sécurité : deux poids, deux mesures dans le droit pénitentiaire, Journal des Tribunaux, n°6300, p. 147.

[45] Preumont, M., 2003, ‘L’intervention du juge des référés dans les matières pénales’, in Le référé judiciaire, Bruxelles, éd. du jeune Barreau de Bruxelles, pp. 209-210.

[46] Brussels Civil Court (interim, in chambers), 5 November 2012, 13.

[47] Brussels Civil Court, 26 April 2013, 4.

[48] Preumont, M., 2003, op. cit. ; Berbuto S., 2003, Jurisprudence récente en matière d’exécution des peines d’emprisonnement, Actualité de droit pénal et de procédure pénale, C.U.P., pp. 125-190; Van den Bergue, Y. , 2006, De bevoegdheid van de Raad van State inzake strafuitvoering, R.A.B.G., pp. 913-917.

[49] Ibid., pp. 216-224.

[50] An internee obtains the condemnation of the Belgian State, Justice en ligne, 6 May 2013.

[51] CEDH, 9 Janvier 2014, Van Meroye c. Belgique, § 104-109.

[52]http://www.belgium.be/fr/justice/victime/assistance_judiciaire/frais/#sthash.QqLxgycX.dpuf.

[53] Article 104 §1, Prison Act of 12 January 2005 related to the management of prisons and the prisoner legal status, Moniteur Belge 1 February 2005.

[54] Article 104 §2, Prison Act of 12 January 2005 related to the management of prisons and the prisoner legal status, Moniteur Belge 1 February 2005.

[55] Article 104 §4, Prison Act of 12 January 2005 related to the management of prisons and the prisoner legal status, Moniteur Belge 1 February 2005.

[56] Article 104 §3, Prison Act of 12 January 2005 related to the management of prisons and the prisoner legal status, Moniteur Belge 1 February 2005.

[57] Article 167 §4, Prison Act of 12 January 2005 related to the management of prisons and the prisoner legal status, Moniteur Belge 1 February 2005.

[58]Cuvelier B., 2003, Le conseil d’Etat et le contentieux pénitentiaire : acte II, Administration Publique, p. 186.

[59] Council of State, Belkadi ruling, n°147.72, 18 July 2005.

[60] Law of 12 January 1973 on the Council of State (M.B., 21/03/1973, p. 3461); Royal Decree of 23 August determining the proceeding before the Council of State (M.B., 23-24/08/1948, p. 6821; errata, M.B., 08/10/1948, p. 8144 et 21/11/1948, p. 9300).

[61] Ibid.

[62] 2005 Prison Act, Art. 161 §2.

[63] Law of 12 January 1973 on the Council of State (M.B., 21/03/1973, p. 3461); Royal Decree of 23 August determining the proceeding before the Council of State (M.B., 23-24/08/1948, p. 6821; errata, M.B., 08/10/1948, p. 8144 et 21/11/1948, p. 9300).

[64] 2005 Prison Act, Art. 159. § 1.

[65] 2005 Prison Act, Art. 159. § 5.

[66] 2005 Prison Act, Art. 160.

[67] 2005 Prison Act, Art. 161 §1.

[68] 2005 Prison Act, Art. 162. § 1.

[69] 2005 Prison Act, Art. 162. § 2.

[70] 2005 Prison Act, Art. 158. § 2.

[71] 2005 Prison Act, Art. 158. § 4.

[72] 2005 Prison Act, Art. 158. § 5 and Art. 160.

[73] Prison Act of 12 January 2005, Art. 127. § 1.

[74] Prison Act of 12 January 2005, Art. 127. § 2 and 3.

[75] Conseil d’Etat, section d’administration, 11 mars 2003, arrêt De Smedt c. Etat belge, 3-4.

[76] Conseil d’Etat, section d’administration, 10 juillet 2010, Lambrechts c. Etat Belge, 4.

[77] Conseil d’Etat, section d’administration, 10 juillet 2010, Lambrechts c. Etat Belge, 4-5.

[78] Law of 17 May 2006, Moniteur Belge of 15 June 2006 n°2006009456, p. 30455.

[79] Ibid.

[80] Law of 17 May 2006, Art. 96.

[81] Law of 17 May 2006, Art. 98.

[82] Law of 12 January 1973 on the Council of State (M.B., 21/03/1973, p. 3461); Royal Decree of 23 August determining the proceeding before the Council of State (M.B., 23-24/08/1948, p. 6821; errata, M.B., 08/10/1948, p. 8144 et 21/11/1948, p. 9300).

[83] Ibid.

[84] 2005 Prison Act, Art. 161 §2.

[85] http://www.oipbelgique.be/

[86] http://www.oip.org/

[87] See the report on France.

[88] http://www.liguedh.be/

[89] www.inquest.org.uk

[90] See the report on the UK.

[91] http://www.mensenrechten.be/