COMMITTEE AGAINST TORTURE HEARS RESPONSE OF BELGIUM
The Committee against Torture this afternoon heard the response of Belgium to questions raised by Committee Experts on the second periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to a series of questions raised by the Committee members on Wednesday, 12 November, the delegation, which was led by Jean-Yves Mine, Judge, Director General for Legislation and Fundamental Rights and Freedoms of Belgium with the Federal Public Justice Service, addressing the concern that the Police ethics code did not specifically prohibit torture, pointed out that the Code did require Police to respect the equality of everyone before the law, which prohibited torture. There were also specific provisions that police could not submit persons deprived of freedom to cruel or degrading treatment. The code set out that it was prohibited to use violence or intimidation to obtain or coerce confessions, and imposed upon a police officer observing such behaviour the duty to report it.
In response to criticisms that Belgium did not have an independent complaints mechanism, the delegation insisted on the independence of the Standing Committee on the Supervision of the Police Services (Committee P), noting that it was specifically designed to be outside the control of the Police and the Executive and could even defy the Parliament, to which it reported directly. Committee P comprised five members appointed by the Chamber of Representatives for a term of five years. Indeed, as had been noted, the Chief of the Police in Brussels and the Inspector General were both about to be suspended owing to reports by Committee P.
The Committee will submit its conclusions and recommendations on the report of Belgium towards the end of the session on Friday, 21 November 2008.
As one of the 145 States parties to the Convention against Torture, Belgium is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.
When the Committee reconvenes at 10 a.m. on Friday, 14 November, it will hear the answers of Kenya to the questions posed by Experts on Thursday, 13 November.
Response of Belgium
Responding to a series of questions raised by Committee Experts on Wednesday, 12 November, the delegation of Belgium said that, with regard to the difference between the crime of torture and other generic crimes, such as assault, the material element in the Criminal Code said that torture provoked "serious psychic or physical harm", whereas other kinds of crimes did not have the same psychological weight. There was also a moral element of pressure to achieve a confession or other result that did not exist for other crimes.
On the number of cases heard against civil servants, for the period 2002 to 2007, there had been a total of 302 cases brought against public officials, including police, 40 of them having to do with civil servants. In 2007 alone, there had been 41 such cases for the entire country, four of them relating to civil servants. Judges had not noticed a particular difference in the way that civil servants were treated as opposed to others.
Belgium had extraterritorial jurisdiction for the crimes set out in the Convention, the delegation affirmed. That extraterritorial competence was not affected by recent amendments to the law, a concern that had been raised by Experts.
Regarding corporal punishment of juveniles, the Minister of Justice had sent a ministerial circular to Government and civil society bodies to remind them that corporal punishment against children could be prosecuted as assault and battery or under other articles of the Criminal Code.
Since 2001 there had been an active policy to combat domestic violence, with the adoption of a number of new legal initiatives in the area, such as the Family Home Assignment Act of 2003, and the development of an action plan for 2004 to 2007, which included provisions for awareness-raising initiatives and education campaigns. An action plan for 2008 to 2012 was being developed, which would further strengthen protections for victims.
As for juvenile justice and lawyers for children in conflict with the law, the delegation underscored that everyone in Belgium had the right to a lawyer. The new law on juveniles provided that in the pre-trial stage the police had to give the caregiver or parent oral or written notification of the arrest.
On extradition provisions, the delegation said that under the current law, if a person were at risk of being tortured, that could be reason to deny extradition. They had also added a general human rights segment. If the extradition would violate article five of the International Covenant on Civil and Political Rights that was also a reason for rejecting extradition.
Regarding the duration of detention, the 1999 Law had established a certain limitation and that had been further amended to allow for preventive custody to take place in a more efficient way, the delegation said. There had been a stepping up in monitoring of long-term prosecutions. If that went on over six months (the maximum limit) a case would automatically be transferred to the criminal prosecution authorities.
As for alternative measures to decrease the number of those held in detention, such as probation, the delegation noted that, in 2005, there had been 370 probation orders, as compared with over 4,000 issued more recently.
Turning to the issue of compensation for victims, the delegation noted that extraterritorial jurisdiction also applied for victims. Victims of crimes committed abroad could obtain damages from the perpetrator. An example was someone who had been convicted of responsibility for the Rwandan genocide and was also found liable to pay damages.
Regarding the fact that the ethics code of the Police did not specifically prohibit torture, the delegation pointed out that the Code did require Police to respect the equality of everyone before the law. The practice of torture was therefore covered under the requirement to respect all individual's equality before the law, which prohibited torture. However, there were also specific provisions that police could not submit persons deprived of freedom to cruel or degrading treatment. The code also set out that it was prohibited to use violence or intimidation to obtain or coerce confessions, and imposed upon a police officer observing such behaviour the duty to report it.
In response to criticisms that Belgium did not have an independent complaints mechanism, the delegation insisted on the independence of the Standing Committee on the Supervision of the Police Services (Committee P), noting that it was specifically designed to be outside the control of the Police and the Executive and could even defy the Parliament, to which it reported directly. Committee P comprised five members appointed by the Chamber of Representatives for a term of five years. Indeed, as had been noted, the Chief of the Police in Brussels and the Inspector General were both about to be suspended owing to reports by Committee P. The Minister of the Interior was even touched by those accusations.
In addition to improvements in the legislative area, over the past three years, considerable efforts had been made by the Belgian Police on the management of crisis situations and the use of restraints, the delegation continued. Those efforts included trainings and the dissemination of manuals in this area.
With respect to administrative detentions, the law had been changed in 2007 to require greater registration of administrative detentions and of any possible external signs of injury and the registration of medical certificates at the time of arrest.
Concerning infractions of international humanitarian law by Belgian troops abroad, the delegation observed that there had been convictions of Belgian troops for actions abroad in Somalia. Further information and details would be forwarded to the Committee.
To address crowding in prisons, a prisons renovation and building plan provided for the extension of capacity of 1,500 places, the delegation said.
Turning to the issue of parole, the delegation said that the new law on conditional liberty only came into force in December 2007, so it was too soon to evaluate it. However, even under the former rules, provisions for granting conditional liberty had not been overly stringent.
Training of prison staff had been updated in 2007, the delegation noted, and the training course had been increased from 6 to 13 weeks. Members of the medical staff also underwent training and the Central Health Council was reviewing the issue of training for the medical staff.
Administrative recourse against disciplinary sanctions taken against a detainee, either foreign or Belgian, was available via the Council of State.
To fight overcrowding in psychiatric wards in prisons, renovations and construction of new buildings had begun, including construction of two new psychiatric penitentiaries. The new places should be adequate to effectively eliminate the waiting list for such services, the delegation said.
Social assistance for persons deprived of liberty to help them integrate back into society was exclusively the province of the two communities – the Flemish and the Walloon communities – and both communities provided social assistance to that end, the delegation said.
Under the Law on Protection of Persons with Mental Illnesses, those adjudged mentally ill could appeal that decision with a justice of the peace, who had to issue a decision on whether he would hear that appeal within 10 days, and had to provide information on the rights of the plaintiff, including to appeal that decision. If the decision were granted, the person in question would be put under observation, which could not exceed 40 days. The determination process could not exceed a period of two years.
Turning to the area of migration policy, with regard to asylum requests for humanitarian reasons, the delegation said that, between 2004 and 2007, some 11,300 persons had had their situation regularized under that procedure, and in 2008 so far 5,000 had had their situation regularized. Individuals could appeal the decisions of the Asylum Board if they felt that the case was unfairly assessed. On the issue of subsidiary protection orders, up to 2007, out of 6,680 refugees, 103 had received subsidiary protection orders; in 2008, out of 1,108 refugees, 80 per cent had received subsidiary protection orders.
As for restraints and rules regulating police use of restraint techniques, the delegation noted that nothing could be used that blocked breathing of a detainee. Anaesthesia could also not be used. Specific training in the use of restraints was carried out, although there was currently a debate as to whether that training should be expanded.
Provisional detentions had to be reviewed after seven days. The detention could be extended up to five months. In cases involving national security issues, detentions could be extended for periods of one month, but in no cases could a preliminary detention exceed eight months, the delegation insisted.
On detention centres for asylum seekers, as of 1 December 2008, children were no longer interned in such centres. Families were interned in private homes. As for unaccompanied minors, the Asylum Service had set up a special custodial service for them in May 2004. All unaccompanied minors seeking asylum were appointed a custodian who was tasked with finding a sustainable solution for the minor: either family reunification; return to his/her home country; or permanent residence in Belgium. Minors who had been subjected to ill-treatment or torture immediately received a temporary residence order.
Additional Questions and Comments by Committee Experts
CLAUDIO GROSSMAN, the Committee Chairperson serving as Rapporteur for the report of Belgium, with regard to the right of children to a lawyer for all hearings, said it was still confusing why minors did not have the right to a lawyer right away. On anti-terrorism measures, it was recalled that the rule of law and protections for the individual did not change.
Mr. Grossman did not understand why victims of torture abroad, including torture by foreign States, could only receive damages from the perpetrator, but were not able to be compensated by the Government. He was also not satisfied with the additional information on the police ethics code; it should specifically contain a prohibition against torture.
Mr. Grossman also asked for more information on the rights of asylum seekers who received subsidiary protection orders, allowing them to stay in the country for a certain period in lieu of having their asylum request granted. Did they have the right to work, for example?
ESSADIA BELMIR, the Committee Expert serving as Co-Rapporteur for the report of Belgium, asked for details on the custodianship provided for unaccompanied minors seeking asylum, in particular whether that was a legal custodianship, and whether the minor's religious convictions were taken into account in the process.
As for training and awareness-raising for police and other officials, Ms. Belmir was concerned that the training in place was not having an effect, as there continued to be numerous reports that people were badly treated by the police, in particular foreigners.
A final concern of Ms. Belmir's was that Belgium's juvenile justice system was not as good as it should be.
Other Experts then made comments and asked questions on a number of issues, including a trend towards increased use of involuntary psychiatric treatment and of isolation techniques by psychiatric hospitals; and the lack of specific criminalization of domestic violence and corporal punishment in Belgian law.
Response by Delegation
Responding to some of the additional questions raised, the delegation of Belgium highlighted that, with regard to juvenile justice concerns, there was a strict limit of 24 hours for all preliminary police custodies before a hearing by a judge. It was true that during that 24-hour period, there was no legal obligation for a lawyer to be present for minors. That was the reverse side of a system that had focused its concern on reducing the time for police custody to its very minimum. An innovation had been the obligation for the police to immediately contact the minor's parents or custodian.
Answering further on the Code of Ethics, the delegation noted that it had been requested by the Council of State, in drafting the law, to withdraw any duplication of the existing law. The explanation that had been furnished was that a Royal Decree could only provide comment on the law, but not replace it.
Regarding the independence of Committee P, in particular that of its members who often came out of the systems that they were charged with investigating, the delegation noted that it was the police or the former police who had the competence to undertake the kinds of investigations necessary. Lawyers from the private sector did not. Moreover, in 2003 and in 2006, the statute regulating the Committee had been amended to strengthen provisions for its independence.
Custodians for minors provided a sort of administrative custody, ensuring that the child had housing, education, religious needs, in short, everything to ensure the child was as comfortable as possible. The custodians also handled health and psychological issues.
On discrimination and racism in the police, the delegation noted that the Centre for Equal Opportunity in the Fight Against Discrimination, along with Committee P, tried to track cases of discrimination or racism in the police forces. It was true that such cases did occur, but they were still relatively rare. In the past, there had been more serious charges, such as assault and battery. Last year, all of the infractions in this area had decreased. There were quite a number of complaints, but not a lot that had led to court sanctions.
The delegation disagreed that there was a trend towards the use of involuntary commitment to psychiatric institutions. That could only be done through a well-regulated set of procedures on the basis of a well-founded cause.
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