In Dialogue with Belgium, Experts of Committee against Torture Ask about Detention Conditions, including Prison Overcrowding

OHCHR

The Committee against Torture this afternoon concluded its consideration of the fourth periodic report of Belgium on the efforts made by the State party to implement the provisions of the Convention against Torture.  During the dialogue, Committee Experts broached concerns related to detention conditions, including prison overcrowding, as well as to the repatriation of Belgian nationals, notably children, from conflict zones in Syria. 

Committee Experts referred to the situation of Belgian nationals, some minors, detained in Al-Hol and Roj camps in the far north-east of Syria.  Noting that authorities had expressed the desire to repatriate children up to the age of 12 years as well as women, the Experts pointed out that Belgian minors over the age of 12 had no more chosen their current situation than younger ones.  This distinction was not based on any human rights convention.  If Belgium was to treat the most vulnerable individuals first, then it should consider the systematic repatriation of orphans, and more generally of Belgian minors detained in Syria.  

Turning to prison overcrowding, Committee Experts praised the efforts of the Belgian Government to fight against the increase in the number of prisoners: the rate of prison overcrowding had fallen, between 2013 and 2018, from nearly 25 per cent to 12 per cent.  However, according to data provided by the Council of Europe in 2019, Belgium was the second country out of 52 Contracting States with the most congested prisons, after Turkey.  Experts asked if measures had been taken to address overcrowding in the prison of Saint-Gilles, near Brussels.  Regarding hygiene and food in prisons, they cited reports that there were rats and mice in prisons and that inmates had scabies.  The administration did not serve halal meat for detainees of Muslim faith and vegetarian menus were only rarely available, they added. 

Daniel Flore, Director General of Legislation, Freedoms and Fundamental Rights at the Federal Justice Service of Belgium, said the COVID-19 crisis had underlined the urgent need for the creation of the national mechanism for the prevention of torture provided for in the Optional Protocol to the Convention against Torture.  The next step would be to start political discussions within the Federal Government and with the federated entities with a view to choosing the institutions that would assume the role of national preventive mechanism. 

Although prison overcrowding had declined significantly, it had not yet disappeared, the delegation said.  Belgium currently had 9,373 places for some 10,380 inmates.  To address this, several hundred early releases and remission of sentences had been granted, notably during the COVID-19 pandemic, among other measures.  The average rate of overcrowding varied depending on the institution; the Saint-Gilles prison was therefore not overcrowded, the delegation said.  Belgium continued its efforts to fight overcrowding, including by investing in transition centres as well as alternative detention centres.  To improve the quality of food, Belgium had drawn up an action plan to centralise the provision of food, but it was yet to be implemented. 

On the repatriation of Belgian women and children from conflict zones, the delegation confirmed that the Government intended to repatriate children under 12, in accordance with the principle of the best interests of the child.  For minors above 12, repatriation would be done on a case-by-case basis.  There was only one Belgian child over 12 years old concerned, in north-eastern Syria, delegates noted.  Repatriations of mothers would be carried out if they did not threaten national security, they added.  So far, 30 children had been repatriated. 

Claude Heller, Committee Chairperson, expressed his solidarity with the Belgian people, and extended his condolences to all those who had lost loved ones following floods. 

In his concluding remarks, Mr. Heller thanked Belgium for the comments and responses.  The meeting had been dynamic and productive, he said.  It would be a case study for the Committee as it was the first online review of a country report.

Tom Neijens, Deputy Permanent Representative of Belgium to the United Nations Office at Geneva, thanked the Committee for the excellent questions and enriching dialogue.  Belgium would carefully analyse the concluding observations of the Committee.  He thanked the experts for expressing their solidarity with Belgium following the floods. 

The delegation of Belgium consisted of representatives of the Federal Public Service Justice; Flemish government; Wallonia-Brussels; World Multilateral Department and European Union of Wallonia; Wallonia-Brussels General Delegation in Geneva; Federal Police; Federal Public Interior Service; Common Community Commission of the Brussels-Capital Region; Department of Chancellery and Foreign Affairs, Flemish Government; Federal Public Service Foreign Affairs; and the Permanent Mission of Belgium to the United Nations Office at Geneva.

The Committee will next meet in public at 1:15 p.m. on Friday, 30 July to close the session.

Report

The Committee has before it the fourth periodic report of Belgium (CAT/C/BEL/4).                 

Presentation of the Report

TOM NEIJENS, Deputy Permanent Representative of Belgium to the United Nations Office at Geneva, explained that, in the Belgian federal structure, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment pertained to the competence of several levels of governments.  The report and the response to the list of questions were thus the result of close collaboration between federal and federated entities to provide a global vision of Belgium’s compliance with the provisions of the Convention.  In addition, representatives of civil society had been contacted ahead of the dialogue.

DANIEL FLORE, Director General of Legislation, Freedoms and Fundamental Rights at the Federal Justice Service of Belgium, said that, since October 2020, a detainee could file complaints with a complaints commission set up within each prison about decisions concerning their rights and obligations.  This commission was made up of members recognised for their expertise and independence.  The detainee could be assisted by a lawyer or accompanied by a person of their choice, including a fellow detainee.  An appeal against a decision of a complaints committee was possible with the corresponding appeals committee.  As of 1 June 2021, 855 complaints had been processed, a quarter of which were considered founded or partially founded, said Mr. Flore.

The COVID-19 crisis had had a substantial impact on daily lives, in particular of the most vulnerable citizens.  The various governments of the country were aware of the fact that people suffering from domestic violence had found themselves locked up with their torturers.  Governments had therefore acted quickly to maintain and strengthen the means to support such people, Mr. Flore assured.

In these circumstances, respect for human rights remained at the heart of the concerns of the Belgian authorities.  In a confined society, striking a balance between, on the one hand, the fight to keep the virus out of more or less closed places of communal living, and, on the other, the right to a social life and to visitation rights for their occupants, had turned out to be a real challenge for the authorities who were not prepared for it.

Two essential axes had guided the action of the Belgian authorities in order to limit the circulation of the virus: the reduction of the population in the places concerned and the maintenance of a link with the outside world.  Therefore, substitute measures for deprivation of liberty had been used, whether in prisons with early releases or postponement of the serving of certain sentences, in detention centres for minors and in closed institutes for young people.

Furthermore, visits were kept in place, as a right, through various means.  In most of the country’s rest and care homes, as well as institutions for people with disabilities, virtual meetings or visits adapted to the situation had been organised; in prisons and in forensic psychiatry centres, the rules in place regarding visits and activities had been adapted.  Video-conference calls had also been set up in all establishments.

Finally, the crisis had underlined the urgent need for the creation of the national mechanism for the prevention of torture provided for in the Optional Protocol to the Convention against Torture.  Among other measures taken in this regard, a consultation of all the actors concerned in October 2020 had resulted in a series of recommendations for policymakers.  The next step would be to start political discussions within the Federal Government and with the federated entities with a view to choosing the institutions that would assume the role of national preventive mechanism.

Questions by the Country Co-Rapporteurs

SÉBASTIEN TOUZÉ, Committee Member and Country Co-Rapporteur for Belgium, questioned the effectiveness of police training and the supervision of police officers’ actions.  In this regard, he regretted that the regulations on techniques for the control of individuals and the use of force still seem a bit imprecise, and therefore potentially too permissive.  No directive governed the practice of prone restraint, even though it had resulted in the death in Belgium of Jozef Chovanec in February 2018 at Charleroi airport, after this individual had been held down by officers for 16 minutes on his stomach, with a police officer’s knee pressed against his back.  Were the requirements in place really sufficient to deter and prevent recourse to such brutal acts?

The Co-Rapporteur also asked about the use of weapons such as semi-automatic pistols, retractable batons and stun devices.  How did the delegation explain the untimely use of such weapons during gatherings?  Should the use of these weapons by the police not be further regulated in order to reduce the number of instances of police violence?

The Expert then noted that, in Belgium, at first glance, police violence was perceived as the consequence of the unintended use of the means of restraint made available to police officers.  It characterised behaviour that did not meet the criteria of legality, proportionality, expediency or subsidiarity.  But it appeared that beyond the legal framework described above, some police tried to make staff aware of a broader definition of police violence, by including verbal and psychological violence that could spark an escalation of violence.  The Belgian legislator had every interest in proposing a new definition of police violence that considered the reality on the ground and thus prevented any personal interpretation?

Turning to the internal mechanism tasked with addressing police violence, Mr. Touzé noted that the issue lay in its obligation to jointly assume responsibility for the execution of police tasks and to assess them, which ultimately amounted to a mission of self-criticism.  How could an internal control service guarantee the impartiality of its work which amounted to peer investigations? 

With regard to the sanctioning of police violence, Mr. Touzé noted several problems in the transmission of decisions and the identification of police officers which led to the lack of legal action or prosecutions in some cases.  He asked why only 6 per cent of incidents led to prosecutions or sanctions.  How could such laxity regarding police violence be justified?

The Co-Rapporteur praised the efforts of the Belgian Government to fight against the increase in the number of prisoners: the rate of prison overcrowding had fallen, between 2013 and 2018, from nearly 25 per cent to 12 per cent.  However, he noted that Belgium had refused to participate in the SPACE survey, which did not allow the Committee to certify these figures.  According to data provided by the Council of Europe in 2019, Belgium was the second country out of 52 Contracting States with the most congested prisons, after Turkey.  This rate was also confirmed by the data presented in December 2019 by the World Prison Brief.  How did the delegation explain these figures?  Mr. Touzé asked if measures had been taken to address overcrowding in the prison of Saint-Gilles, near Brussels.

Regarding hygiene and food in prisons, the Co-Rapporteur quoted declarations made by the President of a prison oversight committee in the media.  According to him, there were rats and mice in prisons and inmates had scabies; some lived in 9m² with a bucket for three people, staying there 23 hours a day.  The administration did not serve halal meat for detainees of Muslim faith and vegetarian menus were only rarely available, the Co-Rapporteur added.

Addressing issues related to the fight against terrorism in Belgium, Mr. Touzé asked what guarantees were offered to people who were the subject of night searches under the 2016 law against terrorism.  Those under administrative arrest still did not have the right to a lawyer.  The Committee had recalled in the past that the period immediately following the arrest was at high risk for police intimidation and ill-treatment.  Had the Government considered extending the right of access to a lawyer to all forms of deprivation of liberty, in particular administrative arrest?  According to what criteria was a person considered “radicalised” by the authorities?  The Co-Rapporteur also requested information about de-radicalisation programmes.

Mr. Touzé referred to the situation of Belgian nationals, some minors, detained in Al-Hol and Roj camps in the far north-east of Syria.  Noting that authorities had expressed the desire to repatriate children up to the age of 12 years as well as women, he pointed out that Belgian minors over the age of 12 had no more chosen their current situation than younger ones.  This distinction was not based on any human rights convention.  If Belgium was to treat the most vulnerable individuals first, then it should consider the systematic repatriation of orphans, and more generally of Belgian minors detained in Syria.  The Co-Rapporteur also expressed concerns about the separation of children from their mothers, which seemed to be envisaged.

ESSADIA BELMIR, Committee Member and Country Co-Rapporteur for Belgium, welcoming Belgium’s decision to accept the remote review, noted the high quality of the report.  She inquired about the primacy of international human rights law over Belgian law, a notion which did not seem to garner consensus in the State party.  Could the delegation clarify how it viewed the articulation of the two legal regimes?  She asked what direct effect the Convention had in Belgium.

Ms. Belmir then noted that the definition of torture in article 417 of the Belgian Penal Code did not contain all the elements of article 1 of the Convention; in particular, a reference to discriminatory motives was lacking.  Amendments currently being considered to the Penal Code in that regard would be a backslide, she warned.

With regard to the independence of the judiciary in Belgium, Ms. Belmir considered, in particular, that the laws which established, since 2013 and 2014, the mobility of magistrates contradicted the Convention.

The Autonomous Police Processing system allowed police investigation of petty crime.  In this context, the lack of cooperation of the police with the prosecution could lead to difficulties, the expert noted.  She wondered about the overall effectiveness of this Autonomous Police Processing system.

Drawing on the definition established by the Human Rights Committee, Ms. Belmir then stressed that ethnic profiling was a form of discrimination.  This problem was underestimated in Belgium, as evidenced by the lack of data on the subject, said the Co-Rapporteur.  While legislation addressing this matter was in place, there were clear implementation issues.

Responses by the Delegation

Regarding the training of police officers, the official circular was being revised by a working group, the delegation said.  A monitoring structure would be created, within this framework, to oversee the training provided by the police academies, which would deal with some of the issues mentioned by the Co-Rapporteur, including the implementation of principles of proportionality.  It would also focus on the duty to report incidents of violence.  Further training on managing violence, human rights and the prevention of abusive behaviour was also planned.

As for the means of restraint used by the police during large demonstrations, the delegation clarified that they must always be used in a manner that was lawful, that was, notably, only when they were necessary and following the provision of a warning to the individuals concerned.  Pepper spray or tear gas were used for purely defensive purposes, and only under specific circumstances, such as when a violent group attacked police officers.  Water cannons were aids that should not be used in such a way as to endanger people.  All these means were deployed under the responsibility of officers.

On administrative arrests and access to lawyers, guarantees were upheld, delegates assured.  Ethnic profiling was prohibited in Belgium.  All police interventions were governed by laws in accordance with international law, which in particular prohibited targeting people on the basis of ethnic criteria.  The law set out an exhaustive list of the circumstances in which identity checks could be carried out, which excluded identification checks based solely on ethnic origins.  To prevent ethnic profiling, Belgium relied, in particular, on the training of police officers on human rights; the application of objective and professional criteria in the detection of offenses, to avoid any risk of arbitrariness; and on the use of body cams.

Regarding the oversight of the police, the delegation clarified that the Committee P had been created to help the Federal Parliament to monitor the actions of the executive power.  The Parliament was thus endowed with an external oversight power over the police services.  Committee P was an external, neutral and independent institution, and this distinguished it from other police oversight bodies, which reported to the executive.  Committee P’s investigative department now had 10 staff members.  It was notably in charge of investigating any death which occurred during a police intervention.

As for AIG, another supervisory body, its members also carried out their mission with complete independence on the ground, the delegation assured.  In particular, they could monitor deportation and return orders, including the acts performed by Frontex in that regard.  AIG prepared detailed reports, as well as judicial reports that were transmitted to prosecutorial authorities.

A large part of the prison population being in preventive detention had long been of concern to the Belgian authorities, the delegation said.  To remedy this, several alternatives already existed, such as bail and electronic surveillance.  Several other means had been explored, but which had been waived.  The Criminal Procedure Reform Commission had proposed procedural measures, such as the obligation for the investigating judge to give reasons for his decision to place a person in pre-trial detention beyond a certain period of time.  These proposals would be discussed in parliament.

The Government was taking steps to better gather data on detention and digitise medical records of inmates.  Although prison overcrowding had declined significantly, it had not yet disappeared, the delegation said.  Belgium currently had 9,373 places for some 10,380 inmates.  To address this, several hundred early releases and remission of sentences had been granted, notably during the COVID-19 pandemic, among other measures.  The average rate of overcrowding varied depending on the institution; the Saint-Gilles prison was therefore not overcrowded, the delegation said.  Belgium continued its efforts to fight overcrowding, including by investing in transition centres as well as alternative detention centres.

The Government also aimed to renovate the prison infrastructure.  New prisons, delivered from 2022, would replace several outdated establishments; other prisons had been renovated, notably Saint-Gilles, where separated sanitary facilities had been built.  The Government was also working to increase places in psychiatric facilities and to make prisons more suitable for the reintegration of detainees. 

To improve the quality of food, Belgium had drawn up an action plan to centralise the provision of food, but it was yet to be implemented.  As part of efforts to prevent suicides, the Government provided training to officials on this matter and ensured detainees had access to psychosocial services, including throughout the pandemic.

Responding to questions on the fight against terrorism, the delegation clarified that some 131 people detained in Belgium were considered radicalised in November 2020.  To counter radicalisation in prison, the authorities distributed people at risk throughout the country and set up local teams to implement “disengagement” programmes.  Detainees also had access to a suicide prevention hotline.

Night searches took place within the applicable legal framework, and only following the issuance of a warrant by a judge or in cases of flagrant crimes.  They were subject to monitoring by judicial authorities. 

Finally, regarding the repatriation of Belgian women and children from conflict zones, the delegation confirmed that the Government intended to repatriate children under 12, in accordance with the principle of the best interests of the child.  For minors above 12, repatriation would be done on a case-by-case basis.  There was only one Belgian child over 12 years old concerned, in north-eastern Syria, delegates noted.  Repatriations of mothers would be carried out if they did not threaten national security, they added.  So far, 30 children had been repatriated.

Questions by the Country Co-Rapporteurs

SÉBASTIEN TOUZÉ, Committee Member and Country Co-Rapporteur for Belgium, focusing on the principle of non-refoulement, pointed out that Belgian law provided for denial of access to Belgian territory to individuals affected by a disease that could endanger public health.  Were there limits to the use of these provisions?  Was the removal of people positive for COVID-19 possible even where this could exacerbate health problems in the country where the infected person was sent back?  How were health issues taken into account when examining individual requests for asylum?  Mr. Touzé also asked how the State party had come to determine that Albania was a safe country. 

Regarding the possibility of denying asylum to individuals who posed a threat to public order or national security on reasonable grounds, he inquired what criteria were used, and pointed out that objective criteria were lacking.  Could individuals be returned to a country where they faced degrading treatment if they were found to pose a threat to public order or national security?  He asked what mechanisms were in place to avoid such an outcome and whether the delegation could provide concrete examples where it had been used.

Mr. Touzé also asked how independent oversight was ensured regarding the implementation of non-refoulement.  The Co-Rapporteur asked about the finances of the police oversight body, the General Inspectorate of the Federal and Local Police, also known as AIG.  He noted that its funding mostly came from a European body, and that this did not guarantee reliable access to funds.  Could the delegation provide information on measures in place to ensure the adequate funding of the police oversight body?

Turning to detention conditions, Mr. Touzé inquired about steps taken for the early release of elderly detainees, and requested information on searches performed in cells, including on the means used in that context.

Regarding the Committee P, could the multiple mandates it was entrusted with lead to conflicts of interest?

ESSADIA BELMIR, Committee Member and Country Co-Rapporteur for Belgium, said while it was prohibited in law, racial profiling continued in practice according to information provided to the Committee.

Turning to the detention of asylum seekers, Ms. Belmir asked about the practice carried out on the ground.  Referring to the jurisprudence of the European Court of Human Rights and the Convention, she warned against systematically depriving refugees of their liberty.  The lack of individual assessment was problematic, she stated.

Responses by the Delegation

Replying to questions pertaining to the principle of non-refoulement, delegates said that Belgium could not deport in any case people who were at risk of unlawful refoulement; denial of subsidiary protection was based on an assessment that allowed the individual concerned to be heard and make their case.  When in doubt that a removal would not comply with non-refoulement obligations, the Government refrained from carrying it out.  A handbook and training on non-refoulement had been provided to State officials, delegates said.

On COVID-19, people infected with the disease would not be immediately returned for obvious public health reasons.  If the persons fulfilled the requirements for entry and were sick, they were put in quarantine, delegates explained. 

People coming from safe countries were not systematically deported; they could apply for international protection, and some of them had been granted asylum.  Again, candidates for deportation had the opportunity to be heard and state their case, delegates underlined.

Criteria used to determine whether a country was safe included: the rule of law, the possibility for the person returned to be protected from persecution, and the general political situation.  The list was updated yearly but it could be modified more often depending on circumstances. 

As an alternative to detention, Belgium put families with children into houses and they were treated decently as far as medical care, food and accommodation were concerned.  People were not systematically detained at the border, delegates said; when that was the case, the detention could be appealed by the person concerned.  Access to a lawyer was not provided for during administrative detention, as the detained persons were not suspects; their right to legal representation was therefore not at play.

Searches of cells followed the instructions of the director of the place of detention, with respect for the dignity and privacy of the detainee.   The delegation explained that, once searches were over, all objects had to be put back in place.

Delegates outlined some elements of radicalisation as construed by the Belgian Government: withdrawal from society and political processes; a growing intolerance to ideas one did not share; and adhering to the notion that violence was an acceptable means of imposing one’s ideas onto others.  There was no one-size-fits-all profile, however, and the prevalence of lone wolf operators made it difficult to identify radicalised individuals.

In 2002, legal reforms had brought Belgian legislation in line with the Convention against Torture and European norms pertaining to evidence obtained through torture, inter alia.  Such evidence was inadmissible, delegates said.

Regarding repatriations from Syria, the delegation said it was not aware of any new repatriation operation underway.  The authorities were nevertheless taking the necessary measures to move forward on this issue.  Two repatriations had taken place in 2019 and 2020.  A total of seven children had been repatriated so far.

The delegation pointed out that annex 15 of the report contained information on reparations provided to victims of torture.  Updated figures would be provided to the Committee in writing.

Regarding prone restraint, training covered various techniques and circumstances where such restraint was appropriate and where it was not.  Accordingly, a police officer could not sit on a person who had been restrained and handcuffed.  On the definition of police violence, delegates said that the use of force by police officers could not be described as “violence”; it was “constraint”, and complied with obligations related to the principles of legality, proportionality, expediency or subsidiarity, as outlined in the European Convention on Human Rights and the police code of conduct.  Constraint methods ranged from verbal warnings to physical constraints.  When use of constraint methods did not comply with legal requirements, it became unlawful, and amounted to police violence, delegates explained. 

Concluding Remarks

CLAUDE HELLER, Committee Chairperson, thanked Belgium for the comments and responses.  The meeting had been dynamic and productive, he said.  It would be a case study for the Committee as it was the first online review of a country report.

TOM NEIJENS, Deputy Permanent Representative of Belgium to the United Nations Office at Geneva, thanked the Committee for the excellent questions and enriching dialogue.  Belgium would carefully analyse the concluding observations of the Committee.  He thanked the Experts for expressing their solidarity with Belgium following the floods.  He expressed satisfaction that Belgium was the first country to have completed its online review and expressed gratitude that the Experts had decided to continue fulfilling their mandate despite the circumstances.  Finally, he called for harmonisation and modernisation of the work of all treaty bodies as well as for more predictable reporting cycles for States.

Link: https://www.ungeneva.org/fr/news-media/meeting-summary/2021/07/dialogue-belgium-experts-committee-against-torture-ask-about

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