The canvas Prof. dr. Tom Vander Beken International Corrections and Prisons Association World Conference Building Bridges – Correctional Best Practices Session Belgian legal and policy issues in the execution of sentences in a European context Ghent, 25 October 2010

1. Belgian and European challenges Belgium. Two challenges criminal justice system in general and the prison system in particular: prison overcrowding & prisoner’s rights – quantity and quality challenges Europe: Security & justice high on the European agenda. Area of freedom, security and justice. Also for the reaction on crime. Cooperation, harmonisation and mutual recognition of sentences. Execution of foreign convictions raises questions about quantity (transfer can enhance/reduce overcrowding) and quality (prison conditions and prisoners rights troughout the EU) Implementation of Lisbon Treaty – European Convention on Human Rights/EU human rights charter bring prisoners rights on the agenda as well.

2. Belgium: policy, law and prison overcrowding For a long time, Belgian prison policy was explicitly reductionist in nature (avoid prison sentences, create opportunities for early release). The last few years a clearer expansionist position has been taken (prison population still on the rise) In Belgium, the execution of sentences has always been a matter for the executive (Minister for Justice), with a very limited legal framework (mainly circular letters, ministerial decisions etc.). This allowed for discretion and policy also in relation to prison capacity (e.g. release by the Minister for reasons of overcrowding)

3. Belgium: a history of policy in stead of law As policy dominated law, prisoners rights very often had no legal basis. No real legislation – except e.g. for conditional release - on both the legal position of prisoners inside prison (internally) and regarding their return to society (externally)

4. Internal legal position A general act was passed in January 2005. Implementation today is incomplete and difficult due to the current situation of overcrowding (the current policy is to focus on extension of prison capacity first and then invest in the full implementation of this act).

5. Extern legal position 1888-1998: (conditional) release is a matter for the minister for justice 1998 (post-Dutroux): special commission (headed by a judge). Other/main possibilities for early release still in hands of the minister 2006: Special courts for the execution of sentences (implementation courts) (early release, electronic monitoring, …). Extensive reduction of discretionary powers of the minister. Release for reasons of overcrowding not longer possible. Partial entry into force: so far only for sentences of more than 3 years. For lower sentences, the minister can still play his (old) role.

6. Belgium: policy and law Focus on prison overcrowding (building programmes, hiring prison capacity abroad-Tilburg) that make implementation of prisoners rights (internal & external) difficult. Internal (not feasable under the current situation), external (not feasable to leave no room for policy in early release). No execution (possible) of certain sentences, growing number of execution of (considerable) prison sentences by means of electronic monitoring Discussions on the « credibility » of the execution of sentences. Pretrial detention is used as a sort of pre punishment, sentences of 3 years and one day (to be assured that no release by the minister (policy) is possible). Discussions on fixed sentences or sentences.

7. Europe Misschien niet meer nodig gezien de intro…