Belgium: "a key voice"

Marc Nève. First of all, it is important to understand that we were tasked with developing this institution from the ground up. Today, we have a team of over 30 permanent members of staff and 450 volunteers: these are members of the public who participate in Monitoring Commissions. When we began work in spring 2019, there were already several committees monitoring penitentiary establishments; however, these came under the jurisdiction of the Minister of Justice. This resulted in a rather peculiar system in which the Minister was performing two conflicting roles, one being the head of prisons and the other, an impartial prison watchdog. The committees were eventually transferred to the control of Parliament, who has funded our work since the changeover.

One of our first tasks was to implement the right of complaint, which was passed by Parliament in 2005 but was not yet in use. Due to our nation’s history, we have inherited several initiatives on penitentiary matters from the Netherlands. Two such initiatives are the right of complaint and the ability for citizens to form external committees to monitor prisons. Each Monitoring Commission has three members who form a complaints commission. Any action or lack of action by prison management deemed prejudicial to prisoners may be raised before a complaints commission. The commission may eventually overturn the decision made by prison management and award non-financial compensation to the prisoner. It may also lessen the severity of the action taken by prison management if judged excessive or unjust. Thus, complaints commissions hold considerable power and are instrumental in ensuring that the law is respected in prisons. Commissions also monitor the actions taken by prison management to make sure there are no misuses of power in detention facilities.

MN. The main challenge for Monitoring Commissions, which are made up of volunteers, is finding members. We are constantly looking for new volunteers as there is a high turnover rate. Around 20% of volunteers leave the role at some point, either because they are looking for something else, can no longer give their time, or are moving. This is a considerable number; however, I believe this change is actually beneficial, even necessary. The prison world suffers from a lack of interest from the general public, but the regular influx of new members into Monitoring Commissions shows that more and more people are gaining interest and becoming conscious of prisoner welfare.

We endeavour to use the observations made by Monitoring Commissions, as well as those from more detailed reports, to take action and seek change. We do this by presenting these observations before Parliament or the Minister of Justice. Our work often fuels parliamentary debate, and our recommendations are taken onboard by the government, even if this is not always apparent.

Belgium has a multi-party system and currently has a seven-party coalition government. As such, each party is relatively limited in what they can achieve and cannot sway the Minister of Justice in favour of any particular project.

Regarding the right of complaint, there has been opposition from management at some prisons to the implementation of this policy. Their reaction clearly shows that enacting the right of complaint has enabled us to push boundaries and overrule arbitrary uses of authority. The number of complaints relating to issues of undignified treatment, such as strip-searches, is relatively high compared to that of other incidents. In fact, the majority of complaints deemed valid by commissions are complaints involving undignified treatment.

Complaints concerning general detention conditions, such as unsanitary facilities or the prisoners’ soup being too cold, are considered inadmissible, as complaints commissions have no bearing on this type of situation. Incarcerated individuals may file a complaint for actions taken against themselves, such as discipline they received or their daily treatment; however, they may not file a complaint about their general detention conditions. The judicial system in Belgium is not capable of overhauling the framework for good detention conditions. As the legal system in Belgium is unable to do this, prisoners may take their case directly to the European Court of Human Rights (ECHR), though this is rare. Nevertheless, not enough prisoners know this option is available to them, so there remains work to be done on this front.

MN. In the past, the majority of sentences under three years were served using an electronic bracelet. Today, the government demands that all sentences be carried out in detention. This, of course, exacerbates overcrowding in prisons, despite assurances, such as: “Don’t worry, it will mean more people in prison in the short-term so that there will be less in the long run.” This is a notable backwards step compared to previous policies, which were moving towards alternatives to prison. Incarceration rates decreased at the start of the pandemic and the occupancy levels of prisons were about equal to their capacity. These figures have now dramatically risen once again.

We would have to rapidly create new spaces to be able to accommodate everyone serving a sentence under three years, but building a new prison can take five years, if not longer.

Haren mega-prison is a mammoth-sized project, which launched over a decade ago and currently costs more than 140 million euros a year. Some funds have been released for smaller structures, a few million euros for each detention centre, which together cost significantly less than Haren. There is only one detention centre in the whole of Belgium, for the time being. The Minister of Justice hopes to have one in each of the ten provinces between now and the end of his term in office in 2024, as he explained not long ago. The State owns a number of properties that are currently unoccupied and could potentially be converted into detention centres accommodating between 50 and 60 people each. Another option is to create small-scale detention centres with a capacity of less than 50 people. This could be an excellent initiative, provided that old infrastructure is scrapped if it is not suitable for a detention centre. Sadly, it seems that, for the moment, the focus remains on building new facilities rather than utilising older structures.

MN. Overpopulation is the foremost problem in Belgian prisons and impacts everyday life in these establishments. Like other countries, we are suffering from a growing number of people in pre-trial detention. The current rate is 38%, which is one of the highest amongst members of the Council of Europe. The rise in people awaiting sentencing is, in part, due to prolonged criminal investigations. Another factor contributing to overpopulation is the increased length of sentences. There are not enough staff to handle current population levels, and prison infrastructure is deteriorating rapidly.

Another serious issue in most establishments is the complete lack of separation between individuals awaiting trial and those who have already been convicted. The principle of separation is set out in law; however, it is practically ignored in reality. This has significant consequences for the detention system, which governs the prison population indiscriminately.

Belgian prisons are also struggling to recruit penitentiary staff, with the uniform no longer holding the same status it once held. New establishments, such as Haren and Termonde, are particularly affected by this issue. As a result, entry requirements for guard posts have been relaxed and new hires are trained on-the-job. Furthermore, those hired often have no relevant experience but meet the low entry-bar for employment.

Meanwhile, Belgium still has not ratified the Optional Protocol to the Convention Against Torture (OPCAT), which allows for the creation of a National Preventive Mechanism (NPM). The government has blamed the complex nature of Belgium’s administrative system for the delay in its decision. In Belgium, we have two levels of power: the Federal State and local authorities. Prisons and police stations fall under the Federal State’s responsibility, for example. Psychiatric hospitals and children’s centres fall under the power of local authorities. Still, this system should not pose any barriers to the ratification of the OPCAT, nor to the creation of an NPM.

MN. As it stands, prisoners come under the care of the penitentiary medical services and are not in the social security system. This means that when a prisoner falls ill, they are sent to a penitentiary medical unit where they are cared for by a doctor employed by the penitentiary administration. All costs, including doctors’ salaries and any medication, are covered by the penitentiary administration.

Reallocating these expenses to the public health budget takes considerable time. The government dreads having to assume the cost of health care for prisoners who are illegally residing in Belgium and who are not registered for social security. A long-awaited political agreement has finally established that the Ministry of Justice will oversee social security contributions for these individuals. We fully supported the development of this initiative.

There will be a gradual changeover of responsibility, starting with Haren prison and the new detention centres that are opening. The system will be rolled out in stages across the entire country and all prisoners will be integrated into the regular social security system.

MN. Over the course of my time on the Council, I believe it is important for us to establish ourselves as a key voice in the penitentiary sphere. We must inscribe the Council in the political landscape of this country. The CCSP needs to be recognised as a body that produces credible, justified and well-researched work. The road travelled so far shows that we are indeed heading in the right direction. So, what comes next? Someone else will take the reins. No single individual makes this project and others will continue the Council’s work with even more goals, which I think is a great thing!