Country Report for Belgium
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Country Report for Belgium I ADMINISTRATIVE DETENTION a) Preliminary remarks 1. Belgian law contains no specific provisions regarding detention for counter-terrorism, security or intelligence-gathering purposes. Detention for these purposes is governed by the ordinary law. This means that detention in the context of counter-terrorism or other national security operations can only occur where a person has been charged with an offence. This section will therefore consider the ordinary system of pre-trial detention and the possibility under Belgian law of imposing control and safety measures on prisoners. Given that the system of pre-trial detention and these control and safety measures are in place for all categories of offenders and not specifically or exclusively aimed at persons suspected or convicted of terrorist acts, this will not be discussed in detail. 2. The Statute on Detention on Remand1 distinguishes the following three categories of pre-trial detention: judicial arrest; the order to bring a suspect in for questioning; and the deprivation of liberty based on a warrant of detention (‘detention on remand’). The warrant of detention issued by the investigating Judge2 entails a longer period of deprivation of liberty that is subject to strict judicial control. Most of the following discussion deals with detention on remand. b) Police custody and judicial arrest 3. This is a brief deprivation of liberty for a maximum of 24 hours. If the person is caught in flagrante delicto, the police can take the decision to detain. The decision to deprive a person of his liberty who was not caught in flagrante delicto is taken by the public prosecutor. 4. In some cases a person is first administratively detained, which is then followed by judicial detention. Administrative detention (also known as police custody) is a brief deprivation of liberty for a maximum of twelve hours unless the detention is changed to a judicial arrest, in which case the detention may last for twenty-four hours from the moment of arrest. 5. The person is mainly detained for the reasons of: • obstructing the police in the exercise of their task; or • disrupting public order or safety.3 1 ‘Wet van 20 juli 1990 betreffende de voorlopige hechtenis’ / ‘La loi de 29 juillet 1990 relative à la détention preventive’. 2 ‘Onderzoeksrechter’ / ‘Juge d’instruction’. 3 See Police Function Act of 5 August 1992, art 31. 191 c) Detention on remand i) Threshold questions 6. As noted above, before the warrant of detention is issued by the investigating Judge, a person can only be lawfully detained for a maximum of 24 hours. The threshold is whether the person has ‘lost [their] freedom to come and go’.4 As of that moment, the period of 24 hours starts. ii) Decision to detain 7. Within 24 hours after the arrest, the investigating Judge must issue a warrant of detention. Whether the investigating Judge can proceed to issue a warrant of detention depends on a number of substantive conditions.5 First, the relevant offence must be one which is punishable by a prison sentence of at least one year. Secondly, the warrant may only be issued ‘in case of an absolute necessity for public safety’: for example, where there is a risk of escape, collusion, reoffending, or a breach of the peace. Thirdly, a warrant may only be issued when there are serious indications of guilt. Finally, a warrant cannot be issued with the purpose of coercing or imposing a sentence on the person concerned. 8. Additionally, there a number of formal conditions that need to be fulfilled.6 These are: • the investigating Judge must interrogate the detainee; • the investigating Judge must inform the detainee that they are entitled to assistance from a lawyer; • the investigating Judge must hear any submissions made by the detainee; • the decision to issue a warrant must be substantiated; • the warrant must be signed by the investigating Judge; and • the warrant must be served on the detainee within 24 hours. 9. The warrant of detention is valid for five days, counting from the moment of execution. Within that period, after receiving the report of the investigating Judge and having heard the public prosecutor, the accused person and their counsel, the Chambre de Conseil of the Court of First Instance will decide whether pre-trial detention must be extended.7 The Chambre de Conseil checks whether the legal conditions for detention on remand have been satisfied, and whether detention should be continued in the light of the provisions of art 16 of the Statute on Detention 4 Statute on Detention on Remand, art 1, 3°. 5 Statute on Detention on Remand, art 16, §1. 6 Statute on Detention on Remand, art 16, §2. 7 Statute on Detention on Remand, art 21. 192 on Remand (see above). The Chambre de Conseil can improve, supplement or modify the warrant. Irreparable nullities, such as detention based on an irregular investigation, cannot be repaired by the Chambre de Conseil. If the Chambre de Conseil decides to maintain the pre-trial detention, this decision remains valid for one month.8 iii) Review of and challenges to detention aa) Periodic review 10. As long as the judicial inquiry continues, the Chambre de Conseil decides from month to month (or every three months, depending on the type of crime the accused is charged with) whether the pre-trial detention may be preserved.9 The Chambre de Conseil no longer needs to consider the lawfulness of the warrant of detention after this has been established in its first judgment. The periodic review is in order to check whether continuing pre-trial detention is necessary, in the light of the circumstances of the moment. bb) Appeal against issuing of warrant 11. It is not possible to appeal against the decision of the investigating Judge to issue a warrant of detention. This applies both to the public prosecutor who demands a warrant of detention10 and to the accused person.11 cc) Appeal against the decision of the Chambre de Conseil 12. As noted above, after the investigating Judge has issued the warrant of detention, the Chambre de Conseil will rule within five days on whether the pre-trial detention will remain in force. Both the accused person and the public prosecutor can appeal against this decision.12 An appeal must be made to the Chamber of Indictment within 24 hours, counted as from the day of the decision (for the public prosecutor) or from the service of the warrant (for the accused person).13 The Chamber of Indictment must render its judgment within fifteen days. If not, the accused person must be released.14 The decision of the Chamber of Indictment authorises the deprivation of liberty for one month or three months, depending on the type of crime the person is charged with.15 8 Statute on Detention on Remand, art 21. 9 Statute on Detention on Remand, art 22. 10 Statute on Detention on Remand, art 17. 11 Statute on Detention on Remand, art 19. 12 Statute on Detention on Remand, art 30. 13 Statute on Detention on Remand, art 30 para 2. 14 Statute on Detention on Remand, art 30 para 3. 15 Statue on Detention on Remand, art 30 para 4. 193 dd) Further appeal to the Court of Cassation 13. An appeal against the decision of the Chamber of Indictment can be made to the Court of Cassation. This must be done within twenty-four hours of the day on which the decision was served on the accused person.16 The Court of Cassation must deliver a judgment within fifteen days. If judgment is not rendered within this period, the accused person must be released.17 iv) Compensation for unlawful detention 14. Compensation for unlawful pre-trial detention may be claimed under the Act of 13 March 1973 on compensation for ineffective detention on remand. 18 This act distinguishes between compensation for unlawful (onrechtmatige) detention and compensation for unnecessary (onwerkdadige) detention. Unlawful detention occurs when the deprivation of liberty is in violation of Art 5 ECHR. The claim for compensation that arises from this is a claim under civil law that must be submitted to the civil courts.19 c) Control and safety measures imposed in prison 15. A prisoner can be subject to special control measures and safety measures.20 In addition, when a prisoner poses a threat to security for a long period of time, the director-general of the prison can decide to place the prisoner on an ‘individual special safety regime’.21 The prisoner can be placed in this regime for a maximum period of two months, with the possibility of extension. This ‘individual special safety regime’ entails that the prisoner is excluded from participating in communal activities and is subject to examination of letters and mail, limited visiting, limited phone contact, systemic examination of clothes, and other special safety measures.22 16. Every decision that imposes or maintains such measures must be substantiated, and the necessity of such a measure must be shown on an individual basis. The prisoner has the right to appeal against the decision of the director-general to the Appeal Commission of the Central Council.23 17. In case of a very severe threat, the prisoner can be detained in the Unit Individual Special Safety in the prison of Bruges or Lantin. However, Belgium has no specific policy regarding the detention of terrorists. There are no instructions to place prisoners suspected of or convicted for 16 Statute on Detention on Remand, art 31. 17 Statute on Detention on Remand, art 31 para 4. 18 ‘Wet van 13 maart 1973 betreffende de vergoeding voor onwerkzame voorlopige hechtenis’ / ‘Loi du 13 mars 1973 relative à l'indemnité en cas de détention préventive inopérante’.