COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF BELGIUM

The Committee against Torture this morning began its consideration of the second periodic report of Belgium on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Jean-Yves Mine, Judge, Director General for the Legislation and Fundamental Rights and Freedoms of Belgium with the Federal Public Justice Service, enumerating innovations in legislation since 2003, called attention, in particular, to the Act Concerning the Principles of the Administration of Prison Establishments and the Legal Status of Detainees and Prisoners. That veritable Codex of 180 articles covered and governed the main facets of the execution of sentences for those deprived of liberty, including the physical living conditions – community spaces; contacts with the outside world; work; health care; as well as conditions linked to security considerations, recourse to force, disciplinary regimes, and the handling of complaints. The implementation of that legislation had been carried out gradually over the past three years.

However, while progress had been made, difficulties remained, Mr. Mine noted. A case in point was the process of accession to the Optional Protocol to the Convention against Torture. Ratification of that instrument was running up against the technical problems linked with the obligation to put into place a national preventive mechanism. Given the multiplication of federal institutions linked to Belgium's international human rights obligations, they were looking into the possibility of creating a central organism that would be in charge of all human rights and fundamental freedoms.

Serving as Rapporteur for the report of Belgium, Committee Expert Claudio Grossman was concerned that the broad definition of torture in Belgian law might not provide for joint responsibility for officials instigating or acquiescing in acts of torture. He also asked for explanations or comments on why a prohibition against torture had not been included in the Code of Conduct of the Police; insufficient guarantees in the first 24 hours of detention, including the right to access a lawyer, the right to contact with family members, or to provision of information in a language which they could understand; and children's right to a lawyer, which apparently did not run until an indictment was issued. Other concerns included that the new subsidiary protection order for foreign nationals could become an instrument for avoiding a positive determination of the asylum claim itself, and that persons held on national security grounds could be detained indefinitely.

Essadia Belmir, the Committee Expert serving as Co-Rapporteur for the report of Belgium, raised a number of issues, including a lack of human rights convention-specific training for the Police; overcrowding in prisons and detention centres; a lack of stringent measures to prevent a recurrence of the serious prison incidents that had occurred in 2003 at the Andenne Prison, in which two detainees had died; and the continuing situation of overcrowding in prison psychiatric facilities, as well as a lack of appropriate infrastructure or staffing for those facilities.

Other Committee Experts asked a number of questions related to the impact of overcrowding in prisons and detention facilities, including whether there had been a rise in inter-prisoner violence and sexual violence; and whether the overcrowding might point to a need to review the system for ordering and monitoring detentions.

The delegation of Belgium also included representatives of the Standing Committee for Monitoring of the Police; the Federal Public Service of the Interior; the Walloon Community of Belgium; the Flemish Community of Belgium; and the Federal Public Justice Service.

The delegation will return to the Committee at 3 p.m. on Thursday, 13 November, to provide its responses to the questions raised today.

Belgium is among the 145 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.

When the Committee reconvenes at 3 p.m. this afternoon, it will hear the answers of Montenegro to the questions posed by Experts on Tuesday, 11 November.

Report of Belgium

With regard to new legislative, administrative and other measures to prevent the commission of acts of torture since the submission of Belgium’s initial report, Belgium’s second periodic report (CAT/C/BEL/2) says that the Bill to bring Belgian law into line with the Convention has been adopted by Parliament and has become the Act of 14 June 2002. The Act inserted articles into the Penal Code characterizing torture as an aggravating circumstance in certain acts. Belgium therefore has a coherent legislative framework characterizing acts of torture, inhuman and degrading treatment as offences. In addition, among others, on 23 June 2003 Belgium ratified Protocol No. 13 to the European Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty in all circumstances, which entered into force on 1 October 2003. Accordingly, on 25 March 2004, the Belgian Federal Parliament adopted a new provision enshrining the principle of the abolition of the death penalty in the Constitution. On 24 October 2005, Belgium signed the Optional Protocol to the Convention against Torture, and ratification of the Protocol is the subject of detailed consideration by the Government. The Royal Decree of 11 July 2002 on protection against mental or sexual violence and harassment at work and the circular issued under it set out the methods of application of the above Act in detail, which apply automatically in the Walloon Region and the French Community and to legal persons governed by public law under the authority of that Region and Community.

Among legislative developments in prison law, the Act Concerning the Principles of the Administration of Prison Establishments and the Legal Status of Detainees was adopted on 12 January 2005. The Act includes provisions on the regime for detainees, as well as provisions on the disciplinary regimes. A complaints procedure has also been introduced, with complaints dealt with by independent bodies (local commissions and the central supervisory council of the prison administration). In addition, the Royal Decree of 4 April 2003 on the general regulation of prison establishments provided the Belgian State with a Central Supervisory Council for Prisons and Local Supervisory Commission. By a Royal Decree of 29 September 2005 the Council’s and the Commissions’ independence, transparency and professionalism were further increased. It should be noted that many authorities are empowered to carry out such monitoring; these include, inter alia, the European Committee for the Prevention of Torture, the Federal Mediators’ Association, the Centre for Equal Opportunities, Province governors, Burgomasters, and the Central Supervisory Council.

Presentation of Report

JEAN-YVES MINE, Judge, Director General for the Legislation and Fundamental Rights and Freedoms of Belgium with the Federal Public Justice Service, presenting the report, highlighted a number of legislative initiatives relevant to the implementation of the Convention that had been undertaken in the past three years. He called attention, in particular, to an important and innovative text that had been adopted: the Act Concerning the Principles of the Administration of Prison Establishments and the Legal Status of Detainees and Prisoners. That veritable Codex of 180 articles covered and governed the main facets of the execution of sentences for those deprived of liberty, including the physical living conditions – community spaces; contacts with the outside world; work; health care; as well as conditions linked to security considerations – recourse to force, disciplinary regimes, and the handling of complaints. The implementation of that legislation had been carried out gradually over the past three years. In addition, there had been the introduction of a Central Supervisory Council for Prisons, independent of the Prison hierarchy, which oversaw the supervisory commissions attached to each prison.

The same time frame had seen the adoption of a number of other texts that all helped to better ensure the protection of individuals against all forms of inhuman treatment, Mr. Mine observed. Those included the exclusion of the argument of a state of necessity as a justification for torture; a drastic limitation of the reasons for which foreigners could be expelled from Belgium if they could show they had strong ties to the country; the assistance of a lawyer for any hearing of a minor before a judge of the first instance and the requirement for family notification in all cases of detention of a minor; a new status of subsidiary protection for foreign nationals when they were likely to be subjected to serious violations of their integrity of their person when they returned to their home country; the adoption of minimal norms relative to police detentions, as well as the requirement that such detentions be registered and dated; and – the main innovation – the provision for the reopening of the criminal procedure against any person when the European Court of Human Rights noted that that procedure had violated the fundamental rights of the convicted person.

While progress had been made, difficulties remained, Mr. Mine noted. A case in point was the process of accession to the Optional Protocol to the Convention against Torture. That ratification was running up against the technical problems linked with the obligation to put into place a national preventive mechanism. Numerous meetings had been held on this subject. Belgium had signed the Optional Protocol on 24 October 2005. Since then preparatory efforts for its ratification had been carried out, including the setting up of a working group to review the relevant legislative mechanisms and amendments. Before ratification could be carried out, all parties had to agree on the structure, composition, mandate and financing of the national prevention mechanism. However, with the multiplication of federal institutions linked to Belgium's international human rights obligations, including for the protection of the rights of the child, the disabled, and for torture, they were also looking into the possibility of creating a central organism that would be in charge of all human rights and fundamental freedoms.

Questions Raised by Committee Experts

CLAUDIO GROSSMAN, the Committee Chairperson serving as Rapporteur for the report of Belgium, with regard to the broad definition of torture in Belgian law, asked how Belgium provided for joint responsibility for violation of the Convention, specifically, how could officials be prosecuted for having instigated or acquiesced in acts of torture? Moreover, given the broad definition, how could separate statistics be kept on such acts?

What was the rationale not to have an explicit prohibition of torture within the Code of Conduct of the Police, Mr. Grossman asked. For the Committee, such a prohibition could never be too often reiterated. He could not see that the training for police required them to inform detainees of their rights to make complaints or required police to report cases of torture that came to their attention.

Mr. Grossman was concerned that people in Belgium did not have sufficient guarantees in the first 24 hours of detention, including a right to access a lawyer, the right to contact with family members, or to provision of information in a language which they could understand.

On children, Mr. Grossman saw repeatedly in the replies to the Committee's list of issues that children did not have the right to a lawyer until an indictment was issued. Why was that?

Regarding asylum-seekers, the law in Belgian provided for asylum-seekers to seek asylum on humanitarian or medical grounds. Could the delegation provide some concrete standards on which either humanitarian or medical claims were determined, Mr. Grossman asked? Also, was there any way for persons seeking asylum to have information about those standards? He would appreciate a breakdown of the number of claims granted on each of those two categories.

Regarding the publicized death of a Nigerian native during his transportation back to Nigeria, there had been European Directives and changes in legislation following that case. In that connection, Mr. Grossman asked what mechanism existed for detainees to complain to an independent body and to appeal the determination of their status.

Non governmental organizations (NGOs) from Belgium had suggested that, despite the ability of asylum-seekers to obtain medical examinations, it would be helpful if they had a right to obtain a medical certificate, both before and after their detention.

With regard to subsidiary protection for foreign nationals, which could be issued for asylum-seekers who were at risk for, among other things, being killed if they were returned to their home countries, Mr. Grossman was concerned that that procedure could become an instrument for avoiding a positive determination of the asylum claim itself, in particular in view of the increase in such subsidiary protection orders in recent years.

Another concern was that persons held on national security grounds could be detained indefinitely. Mr. Grossman also wondered how those grounds were determined.

Regarding plans to renovate and expand centres for asylum-seekers, Mr. Grossman asked if the plans were to be completed in 2008. In addition, how many persons were still held in the INAD centre while the new centres were being completed?

Citing an NGO report which had found an increase over the past years in discrimination on the basis of health and sexual orientation, as well as an increase in hate speech and other acts, was Belgium considering taking special measures to protect such groups, Mr. Grossman asked.

ESSADIA BELMIR, the Committee Expert serving as Co-Rapporteur for the report of Belgium, was concerned that there was no human rights convention-specific training for the Police, in particular with regard to the International Covenant on Civil and Political Rights. NGOs had told the Committee that the training was also not multidisciplinary, it was too short – just three months – and many staff members began to exercise their profession without any previous training.

Concerned about conditions of overcrowding in prisons and detention centres, Ms. Belmir asked if Belgium was considering a quota on the number of detainees per prison. In addition, was it considering the use of alternative sentencing procedures, such as community service, and house arrest with electronic monitoring devices? According to information probation was not granted often enough and there was an overuse of preventive custody measures.

With regard to concerns about serious prison incidents in 2003 at the Andenne Prison, in which two detainees had died, the Committee had asked Belgium what measures had been taken to prevent the recurrence of such a situation. Ms. Belmir said that, as far as she was aware, Belgium had not adopted the stringent measures that would be able to prevent such a recurrence.

With reference to independent monitoring for prisons, Ms. Belmir noted the establishment of the Supervisory Commission as well as the long list of outside groups that were permitted to visit prison facilities. She wondered, however, whether that same situation would apply once Belgium set up its national preventive mechanism against torture.

As for the development of the medico-psychiatric treatment for those in detention, which was established in April 2007, Ms. Belmir asked how that impacted on the continuing situation of overcrowding in prison psychiatric facilities and the lack of appropriate infrastructure or staffing for those facilities.

Other Committee Experts asked a number of questions related to the impact of overcrowding in prisons and detention facilities. An Expert wondered if statistics had been collected on the impact of overcrowding on inter-prisoner violence and sexual violence. An Expert felt that overcrowding might point to a need to institute greater checks and balances in the system of ordering detentions, and a lack of flexibility and timeliness in obtaining prompt release for detainees when the guidelines for detention had been breached. Detainees should also be able to get a ruling from a different judge than the judge of first instance to review the basis for their detention.

Other questions were raised on compensation mechanisms for those who had been tortured abroad; whether Belgium had adopted legislation to prohibit corporal punishment of children; and whether there was legislation criminalizing domestic violence, including marital rape.



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