MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-12

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-12 Vasilescu v. Belgium (Application No. 64682/12) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)1127, CM/Del/Dec(2023)1475/H46-9

 

Application	Case	Judgment of	Final on	Indicator for the classification
64682/12	VASILESCU	25/11/2014	20/04/2015	Structural problem

Case description

This case concerns the inhuman and degrading treatment suffered by the applicant due to his conditions of detention, taken as a whole, between October 2011 and July 2012 in the prisons of Merksplas and Antwerp (insufficient living space; lack of privacy in the use of toilets and no toilets nor access to running water in an individual cell; exposure to passive smoking and; reduced time out of cell) (violation of Article 3).

The Court noted that the problems of prison overcrowding, unhygienic and dilapidated prisons were structural in nature (§§ 73 and 127), denounced a long time ago. In addition, none of the remedies invoked by the government was an effective remedy to be exhausted (§ 127). The Court referred to those issues in relation to the interim remedy for a detained person wishing to challenge his conditions of detention, in view of the overall penitentiary situation and the Belgian case-law (absence of any relevant example) (§ 74).

Under Article 46, the Court recommended that general measures should be taken in order to guarantee detainees conditions of detention compatible with Article 3 and that a remedy should allow them to prevent the continuation of an alleged violation or to obtain an improvement in their conditions of detention (§ 128).

Status of execution

On 7 October 2024, the authorities submitted a new action plan (DH-DD(2024)1127).

Individual measures

In September 2016, the Committee noted that no other individual measure was required in this case.

General measures

-       Concerning prison overcrowding

In 2022 and 2023, the authorities organised five round tables (detention on remand, internment, enforcement of sentences, convicted people without right of residence and collaboration with external actors, including probation services).

Their conclusions will be further examined by the Prison Council, provided for by a 2019 law and set up on 30 April 2024, whose priority is to advice the Minister of Justice on the issue of overcrowding.

1.     Figures and statistics

The average prison occupancy rate fell from 121.4% in 2011-2012 (facts of the Vasilescu case) to 112% on 1 October 2024.[1] At that date, 12 prisons were overcrowded by more than 20%, two by more than 60% (Mechelen and Dinant) and five by between 30% and 60% (Antwerp, Ghent, Hasselt, Lantin and Leuven Hulp). On the other hand, the number of detainees has risen from around 10,400 in 2021 to 12,344[2] (among which 3,789 pre-trial detainees[3] and 1,005 internees). The reduction in the average occupancy rate, despite this increase in the prison population, is due to an increase in capacity over two years (11,020 places on 1 October 2024).

The increase in the number of detainees may be explained by: 1) an increase in sentences of up to three years, due to the gradual application of a law on their enforcement (cf. more systematic electronic monitoring before); 2) an increase in arrest warrants and their duration; 3) an increase in internments (L.B. and W.D. group); and 4) the opening of new prisons. In the face of this increase in the number of detainees, since March 2024 convicted persons meeting certain criteria have been given extended prison leave for a period of one month, or longer in the case of some who have reached the end of their sentence (624 convicted persons as of 1^st October 2024, representing a 4.8% reduction in the prison population).

2.     Increase in prison capacity and renovations

Two prisons were opened in 2022: Haren (1,190 places planned – staff recruitment in progress – 1,126 detainees on 4 October 2024) and Termonde (476 places – 484 detainees on that date). The renovation of the Namur prison was completed in 2022. The extension of the Ypres prison has also been completed (56 new places). The authorities continue to build^[4] and renovate other prisons, among which 400 places at Merksplas between 2025 and 2032. 100 places are foreseen for the execution of the end of sentences in transition houses (four existing ones with a total of 62 places). Detention centres are planned to execute short sentences of less than three years (720 places planned, but only two existing ones with a capacity of 117 places – 80 detainees on 4 October 2024). Finally, a Masterplan III bis, adopted in March 2024, provides notably for the creation of two detention centres for detainees with mental disorders, who are not internees (500 places in all).

3.   Alternative measures to detention and adjustments of prison sentences

The authorities indicate that they are still investing in alternative measures to detention, before conviction and at sentencing (see for more details, CM/Notes/1398/H46-3). Under the Penal Code, which will come into force in 2026, prison is a measure of last resort. The classification of offences into felonies, misdemeanors and petty offences disappears and eight levels of sentence are introduced. Level 1 no longer provides for imprisonment and level 2 provides for a minimum of six months' imprisonment to be justified if no other penalty of level 2 (probation, work, fine, etc.) is possible. The simple declaration of guilt is provided for in cases of limited seriousness or where the passage of time makes it inappropriate to impose another sentence (levels 1, 2 and from 3 to 6 in case of mitigating circumstances). Since August 2023, a law has tightened the criteria for detention on remand, provided for a third monthly review of it and a new possibility of immediate release in the event of a conviction that is not yet final. A draft Code on the Execution of Sentences is planned for April 2026.

Figures/results: The data transmitted seem to indicate an increase in 2023 in electronic monitoring (at the level of detention on remand, as a stand-alone sentence and in enforcing a sentence), notably in Flanders, and in alternatives to detention on remand, but a confirmed decrease in work sentences.

Awareness-raising: Significant awareness-raising work has been carried out with magistrates, which has contributed to a recent reduction in the number of pre-trial detainees (3,778 on 5 July 2024 compared with 4,093 on 5 March 2024). The authorities report that investigating judges regularly visit remand centres, in accordance with the law. In 2024, the Judicial Training Institute organised several training courses and visits to places of detention for magistrates, including courses on alternative measures and overcrowding.

4.   Distribution of detainees

Overcrowding mainly occurs in remand centres (entries of pre-trial detainees decided by investigating judges or the public prosecutor), which results in the placement of some pre-trial detainees in prisons (for more details, see the previous Notes (CMNotes1475H46-9)).

5.   Prison regulation

On twelve occasions, mayors, on the basis of their power to stop public order disturbances, have decided to limit the number of detainees in the prison on their territory.[5] However, the limits set often exceed the operational capacities, thereby accepting a so-called "manageable" level of overcrowding.[6]

Three sets of proceedings were brought in May 2015 by the French and German-speaking Bar Associations to challenge the State's liability for overcrowding: 1) on 28 November 2022, the tribunal of Liège ordered, by end of 2023, to bring to an end inhumane and degrading treatment in the prison of Lantin and to reduce its rate to 110 % and, by end of 2027, to eliminate all overcrowding (appeal by the State rejected on 12 December 2023 and new appeal pending concerning the penalties); 2) on 9 January 2019, the tribunal of Brussels ordered the State to reduce the number of detainees to the maximum authorised capacity of the Forest and Saint-Gilles prisons (appeal still pending);[7] 3) a judgment, very similar to that of the tribunal of Liège, was rendered on 22 June 2023 concerning the Mons prison (appeal by the State pending and appeal also concerning the penalties to pay).[8]

-       Concerning hygiene and dilapidation problems and out-of-cell activities

No new information has been submitted (see the previous notes (CM/Notes/1475/H46-9)).

-       Concerning the right to an effective domestic remedy

1. Compensatory remedy

In two of the three above-mentioned proceedings (before the tribunals of Liège and Mons), the State was ordered to pay 3,000 euros to detainees as a result of their poor conditions of detention. On 20 May 2022, the tribunal of Antwerp paid compensation to two detainees for violation of Article 3, after an in-depth examination of their conditions of detention. On 26 October 2023, the Brussels tribunal ordered the State to pay 6,400 euros to a former prisoner for non-pecuniary damage, due to his conditions of detention for 15 months.

2. Preventive remedy

Recalling the meeting organised on 3 July 2023 on this subject by the Execution Department, with representatives of six other States, to share the positive developments and challenges encountered, the authorities say that they have continued to reflect on the introduction of an effective preventive remedy for poor conditions of detention and overcrowding. However, no bill has yet been drafted, as the Federal Government was in the midst of current affairs at the time of writing the notes.

The authorities cite four decisions of 2023 by investigating courts and tribunals (three transfers and one release, linked in part to the conditions of detention) and a 2023 judgment of the Court of Cassation, stating that they are competent, at the time of first appearance, and provided that they are invited to do so (...) to order the rectification of the arrest warrant by imposing that the pre-trial detention continues in another establishment. They also mention three interim appeals which in 2022 resulted in the transfer of detainees to another cell or prison. Lastly, the Dutch-speaking Prison Supervisory Appeals Board has considered complaints from detainees to be admissible and well-founded, judging that their conditions of detention in a specific cell fell within the competency of the prison director (appeal pending before the State Council).

-       New communication from two NHRI’s (DH-DD(2024)1278)

According to the Central Prison Supervisory Council (CPSC) and the Federal Institute for the Promotion and Protection of Human Rights (FIHR), the threshold of 13,000 detainees would have been crossed if extended prison leave had not been granted. However, it is a temporary measure, with no legal basis,[9] and does not reflect a sustainable policy to reduce the prison population. In 2023 and 2024, many prisoners were still sleeping on mattresses on the floor. The overcrowding rate of 112%[10] includes major disparities between prisons, and very few transfers are possible between them. Prison capacity has been increased by around 1,300 places in 2023 and 2024, but this is not enough to absorb the increase in inmates. In the long term, it should be around 13,000 places (if the next Federal Government agrees).

The authorities' aim of reducing the number of detainees to below 10,000 has therefore been abandoned. The new rules for the execution of short sentences have led to a significant increase in the number of persons convicted to such sentences, but the authorities continue to want to enforce these sentences in detention houses, despite their insufficient capacity.

The absence of analysis of the data influencing the number of detainees is noted, and of a multi-annual and comprehensive plan to combat overcrowding, including measurable objectives and policy tools on the basis of scientific research.[11] In this respect, the NHRIs stress that no research supports the policy of executing short sentences and no program is planned to measure its effects. No real reform has reduced the length and recourse to detention on remand (30.39% of detainees on 7 October 2024 compared with a European median of 24.5%). In the absence of prison regulation, the authorities should introduce without delay the binding system proposed by the administration to the next Government.[12] The reform of the Criminal Code risks to increase overcrowding (measures targeting sentences already served under electronic monitoring, alternative sentences excluded by the rules on aggravating circumstances, rules on recidivism increasing some sentences and new cases of deprivation of liberty), as well as the introduction of accelerated criminal proceedings in 2024.

Analysis of the Secretariat

General measures: The CPT has recalled in its latest report[13] that prisons’ construction or capacity increases are not as such a lasting solution to overcrowding.[14] It reiterated its call on the Belgian authorities to continue reducing the prison population and combating overcrowding, in accordance with the Council of Europe’s recommendations. The majority of detainees spending up to 23 hours a day in their cell, the CPT also called on them to strongly intensify their efforts to offer activities for all detainees.

-       Concerning prison overcrowding and poor conditions of detention

Since the Committee's last review in September 2023, the situation of the Belgian prisons appears to have deteriorated once again, with an average overcrowding rate of 12% on 1 October 2024 (and over 30% in seven prisons). Moreover, this rate would have been 16.8% if extended prison leave (temporary measures) had not been decided by the administration. Finally, many prisoners continued to sleep on mattresses on the floor, despite the authorities' announcement to largely resolve this problem by spring 2023.[15]

The authorities should thus be urged once again to adopt without further delay all the necessary measures to definitively stop using mattresses on the floor and to resolve the problem of overcrowding everywhere. In this respect, they should be invited to ensure that the Prison Council, provided for since 2019 and finally set up in 2024, rapidly draws up a comprehensive plan to combat overcrowding based on an integrated and systematic approach to all its factors and measures to monitor changes in the prison population in real time, drawing on the standards and recommendations of the Council of Europe. The Committee could also invite the authorities to make use, in this context, of the possibilities for technical assistance and cooperation. 

It is of great concern that the prison population has not stopped growing since 2016 and has never been so high,particularly due to the decision to execute short prison sentences (previously served under electronic monitoring) and the opening of new places which, according to the authorities themselves, seems to be leading to an influx of new detainees. It is also regrettable that the authorities' former aim of reducing the number of detainees to below 10,000 seems to have been abandoned. In line with the recommendations of the CPT, the authorities should be urged to focus their efforts on achieving a sustainable reduction in the prison population and not on increasing capacity, which is already projected to be insufficient given the observed increase in the number of detainees.

It is positive to note an increase in electronic monitoring and alternatives to detention on remand, especially in Flanders where overcrowding is higher. However, the authorities should once again be asked to reinforce probation services and awareness-raising measures for magistrates, given their crucial role in combating overcrowding.

At the same time, given the increase in detainees, the authorities should be invited to continue to reduce the number of cases of imprisonment, the use of detention on remand and its duration (see Bell group notably on the length of criminal investigations), to encourage adjustment of sentences in the context of the reform of their execution and to adopt binding prison regulation measures, as suggested by the CPT^[16] and the administration itself (e.g. quotas of detainees, temporary legal measures in case of excess and the maintenance in the meantime of extended prison leave). Finally, in the absence of any new information, the authorities should be invited to promptly adopt measures to improve conditions of detention and to provide detailed information on their efforts as regards out-of-cell activities for all detainees.

-       Concerning the absence of effective domestic remedy

As a reminder, preventive and compensatory remedies must coexist in terms of conditions of detention, regardless of the real existence of overcrowding. The compensatory remedy, based on Article 1382 of the Civil Code, is not in itself an effective remedy to be exhausted by a person still detained (Vasilescu, § 75).

A new judicial decision seems to further reinforce the conclusion that acompensatory remedy exists, which enables to obtain compensation for poor conditions of detention (see also, in this regard, the inadmissibility decision of the European Court in the Laurent case of 30 March 2021, No. 38732/18).

As for the preventive remedy,[17] the new decisions, indicated by the authorities, concern detention on remand and mostly transfers (difficult in a general context of overcrowding). In addition, it is recalled that the judgment of cassation seems limited to first appearances before investigating courts and tribunals and that, in the opinion of the authorities, the Prison Supervisory Boards are not competent to deal with poor general conditions of detention. When this case was last reviewed, the Committee urged the authorities to establish, without further delay, a specific preventive remedy, for the benefit of all detainees, capable of rapidly putting an end to violations of Article 3,^[18] by means of transfers or, if necessary, releases, drawing on experience of other States.^[19] The Committee may wish to reiterate this request and remind the authorities of the Secretariat's availability to provide them with any useful support in the setting up of such a remedy.

Financing assured: YES