|
UNITED NATIONS |
|
CAT |
|
|
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment |
Distr. GENERAL CAT/C/52/Add.2 8 July 2002 ENGLISH Original: FRENCH |
COMMITTEE AGAINST TORTURE
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
under article 19 of the convention
Initial reports of States parties due in 2000
Addendum
BELGIUM
[14 August 2001]
The information submitted by Belgium in accordance with the consolidated guidelines on the initial part of reports of States parties is contained in core document HRI/CORE/1/Add.1/Rev.1.
The annexes to this report may be consulted in the files of the secretariat.
GE.02-43094 (E) 201102 041202
CONTENTS
Paragraphs Page
I. INFORMATION OF A GENERAL NATURE.............................. 1 - 11 3
II. INFORMATION IN RELATION TO EACH OF THE
ARTICLES IN PART I OF THE CONVENTION......................... 12 - 403 5
Article 1.......................................................................................... 12 - 13 5
Article 2.......................................................................................... 14 - 48 5
Article 3.......................................................................................... 49 - 73 12
Article 4.......................................................................................... 74 - 113 17
Article 5.......................................................................................... 114 - 118 25
Article 6.......................................................................................... 119 - 141 25
Article 7.......................................................................................... 142 - 144 30
Article 8.......................................................................................... 145 31
Article 9.......................................................................................... 146 - 147 31
Article 10........................................................................................ 148 - 160 31
Article 11........................................................................................ 161 - 325 33
Article 12........................................................................................ 326 - 345 61
Article 13........................................................................................ 346 - 349 65
Article 14........................................................................................ 350 - 377 65
Article 15........................................................................................ 378 - 385 69
Article 16........................................................................................ 386 - 403 70
Initial report of Belgium
Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment
I. INFORMATION OF A GENERAL NATURE
1. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter the "Convention") has recently become part of the Belgian legal order. Signed by Belgium on 4 February 1985, approved by the Act of 9 June 1999 and ratified on 25 June 1999, the Convention entered into force on 25 July 1999. It was published in the Moniteur belge on 28 October 1999.
2. It should be noted at the outset that a bill to bring Belgian law into line with the Convention was approved by the Council of Ministers on 16 February 2001 (see below, in particular the commentaries to articles 1, 4 and 16 of the Convention). The opinion of the
Council of State was delivered in June 2001. The bill may be amended when it is considered by Parliament.
3. Belgium, which endorses the principle enunciated in article 5 of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on 10 December 1948, that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, is also bound by several other international instruments prohibiting torture or similar treatment, in particular:
The International Covenant on Civil and Political Rights, article 7 of which provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation; and
The Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), article 3 of which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment.
4. Duly introduced into the Belgian domestic legal order (parliamentary approval, ratification by the King and publication in the Moniteur belge), the provisions of these instruments thus form an integral part of the Belgian domestic legal system and have mandatory force. Since the Le Ski decision, delivered on 27 May 1971, the Court of Cassation has clearly affirmed the primacy over domestic legal provisions of provisions in international treaty law having direct effect in the national legal system.
5. Belgian courts (criminal, civil, and, increasingly, administrative), must apply these international provisions to the extent that they are self-executing. By this is meant a clear treaty provision, legally self-contained, which imposes on the Belgian State an obligation either to refrain from acting or to act in a specific manner, and which may be cited as a source of law in itself by individuals under Belgian jurisdiction without there being any need for complementary domestic legislation.
6. In the context of these two international instruments, Belgium has entered into commitments allowing individuals who consider that the rights guaranteed under them have been violated to bring actions against the State in the bodies established by the instruments in question. Belgium is a party to the Optional Protocol to the International Covenant on Civil and Political Rights, which established the right of individuals to submit communications to the Human Rights Committee. It has also made the declaration provided for in article 25 of the European Convention on Human Rights allowing individual petitions.
7. Lastly, on 23 July 1991 Belgium ratified the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, of 26 November 1987 (entry into force on 1 November 1991), which established the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; the Committee has the authority to visit any place within the jurisdiction of a signatory State in which individuals are deprived of liberty by a public authority (premises of the commune police and gendarmerie, custodial centres for foreign nationals, and prisons).
8. The European Committee for the Prevention of Torture carried out two periodic visits to Belgium, from 14 to 23 November 1993 and from 31 August to 12 September 1997. A third visit is scheduled for 2001. Pursuant to the visits the Committee submitted to the Belgian Government reports containing sets of comments, observations and recommendations, thereby initiating a dialogue with the Belgian authorities. On the basis of those reports the Government in turn formulated interim and follow-up reports on the measures taken to implement the recommendations contained in the Committee's reports. The Belgian authorities have made a considerable effort to report not only on the legislative and administrative measures which, where appropriate, they were called upon to take, but also on the effective application in practice of the Committee's recommendations. These reports, annexed hereto, have been made public.
9. It should be noted that the European Convention for the Prevention of Torture was formulated on the basis of three fundamental principles: prevention, cooperation and confidentiality. In this connection it must be emphasized that the Committee's role is not to condemn States but, rather, to help them avoid ill‑treatment of persons deprived of their liberty. It is for the Committee to determine whether there are general or specific conditions or circumstances which may deteriorate to the point where acts of torture or inhuman or degrading treatment or punishment might occur, or which might lend themselves to the perpetration of such inadmissible acts or practices. Prevention is thus the keystone of the entire monitoring system instituted by the Convention.
10. The Committee's work is designed to be an integral part of the system of the Council of Europe for the protection of human rights; it represents a preventive non‑judicial mechanism that complements the a posteriori judicial monitoring mechanism of the European Court of Human Rights.
11. Lastly, various non-governmental organizations (Amnesty International, International Prison Watch, International League for Human Rights) were consulted in the drafting of this initial report. Annexed hereto is a set of documents and reports prepared by these organizations reflecting the situation in Belgium with regard to the Convention.
II. Information in relation to each of the articles
in Part I of the Convention
Article 1
12. Article 1 defines the concept of torture, as it is to be understood in the context of the Convention, and indicates which acts fall within its scope. This is the first time that the term has been defined in an international instrument. The definition is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
13. The definition of torture as such is not incorporated in the Belgian Penal Code. In fact the bill adopted by the Council of Ministers on 16 February 2001 with the aim of bringing the Penal Code into line with the normative provisions of the Convention (see below) proposes no exact definition of torture. This approach, already adopted in other Belgian legislation on the subject (for example, article 2 of the Act of 7 February 1994 on human rights assessment of development cooperation policy), leaves room for a changing interpretation of torture in the light of the development of case law, avoiding a too narrowly predefined framework. On this subject the following two observations may be made: firstly, the interpretation of torture as defined in the new article of the Penal Code (art. 417 bis) does not take account of certain restrictions set forth in the Convention; secondly, it reflects the definition of torture emerging from the decisions of the European Court of Human Rights relating to article 3 of the European Convention on Human Rights.
Article 2
Paragraph 1
14. Paragraph 1 establishes the obligation for States parties to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under their jurisdiction. It must be read in conjunction with article 4, paragraph 1, which requires States to make offences of all acts of torture, including attempts to commit torture and acts which constitute complicity or participation in torture (see below, article 4, paragraph 1, commentary).
15. Here there enter into consideration not only the laws authorizing ratification of the relevant international instruments, first and foremost among them the Convention, but also legislative provisions and bills that criminalize torture and establish punishments for acts of torture, as well as those setting out judicial remedies available to victims. The judicial authority as a guardian of individual freedom under the Constitution acts within the framework established by the law.
16. Thus the law prohibits and penalizes torture, and the judicial authorities punish it. This punitive machinery, by its very existence, has an obvious preventive and deterrent value. It is complemented by administrative measures, mainly consisting of guidelines from the executive on standards of conduct for government officials to ensure compliance with the law.
17. There follows a list of the principal legislative, administrative, judicial and other measures that Belgium has adopted to prevent the commission on its territory of acts of torture. A detailed consideration of the measures follows.
Legislative provisions
18. Bringing Belgian law into line with article 2 of the Convention necessitates adaptation of the country's substantive criminal law. Existing provisions punishing acts of torture are not broad enough to comply with the Convention. Article 438 of the Penal Code applies only to acts of torture committed against an arrested or detained person; article 347 bis makes acts of torture an aggravating circumstance in crimes relating to hostage-taking; article 398 on intentional assault is too vague; and the scope of the Act concerning the prosecution and punishment of serious violations of the Geneva Conventions of 12 August 1949 and of Protocols I and II of 8 June 1977 Additional to the Geneva Conventions is restricted to serious violations of the Conventions and Protocols.
19. To meet the requirements of the Convention, on 16 February 2001 the Council of Ministers adopted a bill designed on the one hand, to insert in the Penal Code three new articles characterizing torture (art. 417 bis), inhuman treatment (art. 417 ter) and degrading treatment (art. 417 quarter), as offences and also to adapt to the content of these new articles the articles characterizing torture as an aggravating circumstance in cases of hostage-taking (art. 347 bis), indecent assault or rape (art. 376). The bill takes into account the comments by the Council of State in its opinion of 4 December 1998 on the preliminary bill on accession to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (see annex).
20. Other legislative provisions include:
Administrative measures
21. The administrative measures taken by the Government to implement the Convention include:
The General Prison Regulations, title III of which covers the inspection and oversight of prisons;
The draft police code of ethics;
General Order No. J/815 of 8 February 1996 on instruction for the armed forces in the law of armed conflict and the rules of engagement, with reference to the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977, as well as to the Act of 16 June 1993, which is intended to establish the general framework for instruction in the law of armed conflict and the rules of engagement with a view to attaining standardization and ensuring that the rules that must be known and respected by combatants at varying levels of responsibility are taught.
Paragraph 7 of the Code of Conduct of the Department of Defence (May 1999) also refers to human rights and international humanitarian law:
"7. I undertake to defend democracy and its values and to respect human rights and international humanitarian law in all circumstances. I undertake to treat every individual with respect on a basis of equality. I will not tolerate any form of discrimination. I will assist any individual in danger."
Other measures
22. Reference should be made to the work of the Working Group on the law governing detainees (administrative and judicial arrests).
Paragraph 2
23. In Belgium, article 1, paragraph 2, of the Act of 16 June 1993 on the prosecution and punishment of serious breaches of the Geneva Conventions of 12 August 1949 and of the Additional Protocols of 8 June 1977 sets forth punishment for torture and other inhuman treatment, including biological experiments, whether in the context of international armed conflict or non-international armed conflict.
24. Article 5, paragraph 1, of the Act stipulates that no interest, no necessity of a political, military or national nature, may justify, even in the context of reprisals, the offences covered by article 1 of the Act.
25. Article 5, paragraph 1, merely confirms in a legal instrument what has already been established in legal theory and precedent: a state of necessity may not be invoked in humanitarian law as a general justification precisely because it is intended to govern exceptional situations.
26. The legislator, in adopting article 5, paragraph 1, wished to establish a hierarchy of values a priori, without seeking to balance the minimal protection accorded individuals by humanitarian law against military necessities or the survival of the nation.
27. Further, the domestic provisions applicable in time of war (Decree Law of 11 October 1916 on states of war and states of siege, Act of 16 June 1937 granting the King authority to take the necessary measures for the mobilization of the country in the event of war, Act of 10 May 1940 on delegation of authority in time of war) and the Military Penal Code do not provide any justification for torture.
28. Other than in the event of armed conflict, covered by the Act of 16 June 1993, ordinary law provisions, namely article 392 et seq. of the Penal Code ("Homicide and intentional bodily injury") are applicable to cases of torture (see article 4 of the bill on alignment of Belgian law with the Convention).
29. Under ordinary criminal law, necessity constitutes a general ground for justification which, although not enshrined in any legal instrument, is unanimously acknowledged in legal theory and judicial doctrine.
30. Necessity is the situation in which a person finds himself when he has no other reasonable recourse than to commit an offence to protect an interest equal to or greater than that injured by the offence.
31. Is this ground for justification applicable in the event of acts of torture? In other words, is it possible to imagine exceptional circumstances other than armed conflict (covered by the Act of 16 June 1993) in which recourse to torture could be justified under criminal law? A state of necessity can be admitted as justification only if it meets several conditions, namely: the value of the interest sacrificed must be less than or at most equal to that of the interest to be safeguarded; the right or interest to be safeguarded must be in imminent and grave peril; it must be impossible to avoid injury other than by the offence; and the agent must not have created by his actions the situation placing him in a state of necessity.
32. These are restrictive conditions but do not necessarily exclude the invocation of a state of necessity to justify acts of torture.
33. This question has already come before the Penal Code Reform Commission, which has proposed the insertion, in that part of the future code relating to legal grounds for objective justification of an offence, of an article providing that "no interest or necessity, however vital it may be, can justify an act constituting inhuman or degrading treatment. Neither a state of war or the threat of war or of armed conflict, nor a threat to national security, nor a state of siege or other state of emergency, nor the need for information, nor any other exceptional circumstance can justify, even as reprisals, violation of a peremptory norm embodied in international instruments relating to fundamental human rights".
34. The work of the Penal Code Reform Commission has thus far not concluded. There is, however, agreement among legal theoreticians as to the "non-derogable" nature of humanitarian law, which includes the prohibition of torture. To our knowledge there are, however, no court decisions dealing with this issue other than in the context of armed conflict.
35. Further, while article 1 of the Police Functions Act of 5 August 1992 provides that "the police services must, in the discharge of their administrative or judicial police duties, ensure respect for and contribute to the protection of individual rights and freedoms and the democratic development of society", article 37 of the Act authorizes the use of force by any police official "having regard to the risks involved therein" and "only in order to pursue a legitimate objective which could not otherwise be achieved". The article goes on to state that "any recourse to force must be reasonable and proportionate to the objective pursued". A legitimate objective thus justifies recourse by police officials to force.
36. Recourse to force is distinct from torture, as defined in article 1 of the Convention (any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as …). That the legitimate use of restraint by the police forces may cause severe pain or suffering similar to one or other form of torture cannot, however, be completely excluded.
37. It should be noted that several international norms are applied which take precedence over norms of domestic law and which are directly applicable by Belgian courts. This is true of the provisions of the European Convention on Human Rights. Article 3 of this Convention, prohibiting torture, is formulated in absolute terms, without qualification or any possibility of derogation (of the Convention, art. 15). The same is true of the International Covenant on Civil and Political Rights, ratified by Belgium and directly applicable, which enshrines the non‑derogable nature of humanitarian rights, including the prohibition of torture.
38. In conclusion, it is not legally possible in Belgium to invoke a state of necessity, exceptional circumstances, a state of war, or any other ground that would justify torture.
Paragraph 3
39. This provision prevents an order by a superior or public authority from being invoked as justification for torture. Article 70 of the Penal Code states that "no offence is committed where the act is ordered under the law or at the command of higher authority". This is true of the more specific instances cited in articles 152 and 260 of the Penal Code.
40. The case-law of the Court of Cassation has reduced the scope of this provision, which it interpreted as follows in its decision of 18 February 1953:
"(…) An act of violence by an official is legitimate only if, pursuant to an order duly given in accordance with the law or regulations, it does not exceed the level strictly necessary to comply with the order (…)."
41. The Court of Cassation has on several occasions acknowledged the principle of lawful resistance to abuse of authority, holding that:
"Whereas, exceptionally, individual resistance to an unlawful act of authority is legally recognized, it is on condition, in particular, that the act should be flagrantly unlawful and that it should necessitate an immediate reaction."
42. Although the existence of this precedent is to be welcomed, it does not seem an adequate guarantee against abuse of authority in terms of article 2, paragraph 3, of the Convention. It is thus essential, to ensure that Belgian law conforms with the provisions of the Convention, to incorporate the content of article 2, paragraph 3, in the draft amendment to the articles of the Penal Code that characterize torture (art. 417 bis) and degrading treatment (art. 417 quater) as offences (see commentaries to articles 4 and 16 of the Convention).
Rules applicable to the integrated two-tier police force
43. In the context of police reform in Belgium, the Act of 7 December 1998 (Moniteur belge, 5 January 1999) establishes an integrated, two-tier police force. The Act provides:
"Article 123. Police officials shall at all times and under all circumstances contribute to the protection of citizens and the assistance that citizens are entitled to expect, as well as, when circumstances so require, to respect for the law and the maintenance of public order.
They shall respect and undertake to ensure respect for human rights and fundamental freedoms."
44. The provisions that follow this article govern the duties of availability for duty, impartiality, integrity and discretion on the part of police officials. Equality of opportunity for men and women within the integrated police force is also guaranteed under article 129 of the Act.
45. The Act of 13 May 1999 (Moniteur belge, 16 June 1999) containing the disciplinary regulations governing members of the police services provides that:
"Article 3. Any act or behaviour, even outside the course of official duties, which represents dereliction of professional obligations or is likely to imperil the dignity of the service constitutes an infringement of discipline and may give rise to disciplinary action";
"Article 8. Members of the service who, in grave and urgent circumstances, in the context of preparation for or execution of an administrative or judicial police operation, refuse to obey the orders of their superiors or wilfully refrain from implementing them shall incur heavy disciplinary punishment. Nevertheless, a manifestly unlawful order may not be carried out."
46. Under article 1 of the Police Functions Act of 5 August 1992, police officers must, in the discharge of their duties, ensure respect for and contribute to "the protection of individual rights and freedoms and the democratic development of society. In the discharge of their duties they shall use force only under the circumstances provided for by law" (see below, commentary to articles 37 and 38 of the Act, under article 4 of the Convention).
47. Further, it should be noted that the principle that a police official may not hide behind the orders of a superior to escape prosecution for violation of fundamental human rights is set forth in the Royal Decree of 30 March 2001 governing the legal status of police personnel (Moniteur belge, 31 March 2001):
"Article III.II.3. A member of the force to whom a manifestly unlawful order is given (…) shall immediately communicate his intention not to carry out the order to the superior who has given the order or to his superior";
"Article III.II.4. A member of the force is responsible for carrying out the orders given to him by his superiors".
48. The principle is contained in the final paragraph of article 8 of the Act of 13 May 1999 on the disciplinary regulations applicable to members of the police services. "Nevertheless, a manifestly unlawful order may not be carried out".
Article 3
Paragraphs 1 and 2
Removal of aliens
49. In this regard Belgian law conforms to the provisions of article 3 regarding the prohibition of refoulement or expulsion to a State where the individual in question is liable to face torture.
50. The legal corpus governing the removal of aliens includes the following instruments:
The Convention of 19 June 1990 applying the Schengen Agreement of 14 June 1985;
The Chicago Convention on International Civil Aviation of 7 December 1944, approved by the Civil Aviation Act of 30 April 1947, which refers to removal;
The Act of 15 December 1980 on the entry, temporary and permanent residence and removal of aliens, as amended by the Acts of 28 June 1984, 14 July 1987, 18 July 1991, 7 December 1992, 6 May 1993, 1 June 1993, 6 August 1993, 24 May 1994, 8 March 1995, 13 April 1995, 10 July 1996, 15 July 1996, 9 March 1998, 29 April 1999, 7 May 1999 and 2 January 2001, by the Royal Decrees of 13 July 1992, 7 December 1992, 31 December 1993 and 22 February 1995, and by the Royal Implementing Decree of 8 October 1981, itself amended on several occasions;
Article 37 of the Police Functions Act of 5 August 1992, which determines the circumstances in which the use of force is authorized;
A protocol of agreement concluded on 24 May 2000 between the Ministry of the Interior and Sabena Airlines on "INADS" (aliens who are not admitted and who will be returned);
Final directives on the use of force in the event of removal, also formulated by the Minister of the Interior in 1999;
A ministerial decision of 11 April 2000 regulating conditions of transport on board civil aircraft of passengers posing particular security risks (Moniteur belge, 14 April 2000).
51. The Act of 15 December 1980 provides for four different forms of removal (a general term) of aliens (see annex, guidance note on a comprehensive immigration policy, approved by the Council of Ministers on 1 October 1999).
Refoulement
52. Refoulement (return) is the administrative decision on removal whereby an alien who has not yet crossed the Belgian frontier is forbidden to enter the territory of the States parties to the Schengen Agreement by the border control authorities, acting on the authority of the Ministry of the Interior.
53. An alien may be turned back if he attempts to enter Belgium in one of the circumstances covered by article 3 of the Act of 15 December 1980 on the entry, temporary and permanent residence and removal of aliens, and by article 5 of the Convention applying the Schengen Agreement.
54. This same Act specifies in article 3 that the rules it sets forth also apply unless a derogation is provided for under an international treaty or by law. Accordingly, no refusal of admission can be made in violation of the principles set forth in article 3 of the Convention. In practice persons who do not meet the legal requirements for admission to Belgium and who fear torture in the event of refoulement to another State seek asylum in Belgium, invoking a fear of persecution within the meaning of article 1 of the Convention relating to the Status of Refugees of 28 July 1951, which is binding on the Belgian authorities and which, in its article 33, prohibits return of a refugee to a country in which he fears for his life or freedom.
55. In application of this rule the Council of State has reiterated on a number of occasions that it is forbidden to return an alien who has been refused the status of political refugee to his country of origin, where there are substantial grounds for believing that he would be subjected to inhuman or degrading treatment.
Expulsion
56. Expulsion is the decision (Royal Decree) whereby the King may remove from the territory an alien permanently resident in Belgium or a national of the European Union or of the European Economic Area to whom a residence permit has been granted, following the opinion of the Advisory Committee on Aliens, which is called upon to advise on certain decisions
relating to aliens. It is a consultative body made up of magistrates, lawyers and persons concerned with the defence of aliens' interests.
57. The above-mentioned aliens may be expelled only if they have committed
serious violations of public order or national security.
Repatriation
58. Repatriation is the decision (ministerial order) whereby the Minister of the Interior may remove from the territory an alien who is not permanently resident in Belgium, after having obtained, where appropriate, the opinion of the Advisory Committee on Aliens.
59. An alien not permanently resident may be repatriated when he has violated
public order or national security or has not complied with the conditions imposed on his stay, as provided for in the Act of 15 December 1980 (art. 20).
Order to leave the country
60. An order to leave the country is the administrative decision on removal whereby the Minister of the Interior or the Aliens Office requires an alien not authorized or permitted to stay more than three months or to reside permanently in Belgium to leave the country. This decision may be enforced in two ways: voluntarily, in which case the decision generally sets a time limit for leaving the country, varying with the circumstances (article 7, paragraph 1, of the Act), and the alien is able to leave the country at his convenience; or forcibly, in certain cases, when the Minister of the Interior or the Aliens Office deems necessary, and the alien is taken to the border of the country from which he comes or into which he may be admitted. He may be taken to the border in this way either immediately or after a delay (ibid., para. 3). In the latter case, he may be held for as long as is strictly necessary for the enforcement of the decision.
Personnel and departments responsible for expulsions
61. The expulsion measure is notified by the Ministry of the Interior (Directorate-General of the Aliens Office), or on its instructions by a law enforcement officer. Decisions on refoulement (return) are taken by the Aliens Office and are enforced at the airport by airline staff, assisted in some cases by the federal police. The forcible implementation of an order to leave the country is the task of the federal police (repatriation under escort). Repatriation is accompanied by measures of a psychological, medical and social nature applied in advance, on departure and, in some cases, during the flight.
62. Cases of removal (refoulement and the forcible implementation of orders to leave the country) are as a rule entrusted to the airlines. It should be noted that, under article 74/4 of the Act of 15 December 1980, a carrier which has transported to Belgium a passenger who is not in possession of the documents required to enter the country (as a rule a valid national passport, together with a visa where applicable), or who falls into one of the other categories referred to in article 3 of the Act, must transport him or arrange for him to be transported to the country from which he comes or a country into which he may be admitted.
63. Agreements have been concluded with carriers to encourage the practice of boarding checks and lower the fines which are applicable when this obligation is not complied with.
64. On 22 September 1998, Semira Adamu, a Nigerian, died during an attempt to return her to Togo. The Government decided to set up a special consultative commission to review instructions relating to removal, under the chairmanship of Professor Vermeersch (see annex, final report of 21 January 1999). The commission recommended, among other things, that in any expulsion procedure certain coercive measures should be permanently forbidden, "in particular any action to block normal breathing (for example, adhesive tape or a pillow over the mouth) and any forced administration of pharmaceutical products (except those administered by doctors in emergencies, which would naturally lead to abandonment of the attempted removal)". New guidelines issued in July 1999 for the use of federal police engaged in accompanying persons being expelled reflect the Commission's recommendations. These guidelines are also applicable to the new police services.
Removal of unaccompanied minors
65. In principle unaccompanied under-age children are not removed, except where their behaviour and available information concerning their overall situation indicate that they may travel alone and are sufficiently mature. An unaccompanied minor aged under 16 may be removed only if, in the country of origin, the country of usual residence, the country of nationality or each country into which he may be admitted, either a parent, a legal guardian or relatives can accommodate the minor, or a reception centre can take charge of him.
Number of expulsions
66. The following figures are supplied for guidance:
|
|
Refoulement |
Order to leave the country |
Repatriation |
Deportation |
|
1994 |
n.a. |
8 530 |
1 964 |
311 |
|
1995 |
1 980 |
7 898 |
2 699 |
803 |
|
1996 |
2 839 |
8 856 |
3 794 |
466 |
|
1997 |
2 645 |
9 983 |
3 042 |
170 |
|
1998 |
3 952 |
9 309 |
3 042 |
212 |
|
1999 |
4 659 |
11 443 |
1 802 |
101 |
Extradition
67. Extradition is governed by the Extradition Act of 15 March 1874 (as amended by the Acts of 31 July 1985 and 14 January 1999) and by bilateral treaties (over 50) and multilateral treaties between Belgium and other States. Particularly noteworthy are the Convention of 19 June 1990 applying the Schengen Agreement of 14 June 1985, which also contains provisions relating to extradition (arts. 59-66), and recently (Act of 22 April 1997) the European Convention on Extradition concluded in Paris on 13 December 1957, its two additional protocols and its additional agreement.
68. It should be pointed out that article 2 bis of the Extradition Act of 15 March 1874, a new article introduced by the Act of 31 July 1985 (Moniteur belge of 7 September 1985), goes a long way towards meeting the obligation under the Convention not to extradite any person to a State where he faces a risk of torture:
"Extradition may not be granted if there are serious grounds for believing that the request has been submitted for the purpose of prosecuting or punishing a person for reasons of race, religion, nationality or political opinion, or that the person's situation might be aggravated for one of those reasons."
69. Extradition will also be refused if the requesting State does not provide formal assurances that, if the death penalty may be imposed, it will not be carried out (article 1, paragraph 2 (3), of the Act of 15 March 1874). Even if the guarantee of the right to a fair trial in the requesting country is not in itself a condition of extradition, this requirement may constitute a ground for the Government to refuse extradition in its final decision as inadvisable. When ratifying the
European Convention on Extradition, Belgium, like other countries, lodged a reservation under which it is authorized not to grant extradition when the person being sought might be brought before a special court, or when his surrender is likely to have exceptionally serious consequences for him, in particular because of his age or state of health.
70. A refusal to extradite a person to a State where he might undergo acts of torture is not a new obligation where Belgium is concerned. Since the European Court of Human Rights handed down its decision in the Soering case, Belgium has been under an obligation to refuse extradition in such cases, in the same way as all States parties to the European Convention on Human Rights. Hence the 1984 Convention does no more than strengthen an existing obligation.
71. Nevertheless, this provision runs counter to what is laid down in certain bilateral treaties on extradition concluded by Belgium which do not list the risk of torture as a ground for refusing extradition. However, if the other contracting State is also a party to the present Convention or the European Convention on Human Rights or the International Covenant on Civil and Political Rights, these treaties prevail over an extradition treaty and offer grounds for refusing to extradite a person who runs the risk of being subjected to acts of torture in the requesting State.
72. At present, there are only four States which are not parties to these conventions but have concluded a bilateral extradition treaty with Belgium:
Honduras (Convention concluded at La Paz on 24 July 1908, Moniteur belge of 4 July 1909);
Liberia (Convention concluded in Brussels on 23 November 1893, Moniteur belge of 11 May 1895);
Pakistan (Convention on extradition concluded on 29 October 1901 between Belgium and Great Britain and additional Conventions of 5 March 1907 and 3 March 1911, applicable to Pakistan by arrangement made by means of an exchange of notes dated Brussels, 23 January and 20 February 1952, Moniteur belge of 1 June 1952);
Swaziland (Convention on extradition concluded on 29 October 1901 between Belgium and Great Britain, applicable to Swaziland by arrangement made by means of an exchange of notes dated Mbabane, 13 May 1970 and 18 August 1970, Moniteur belge of 13 February 1971).
73. It would be desirable to update these treaties in the light of the new imperatives relating to the protection of human rights facing our State. It is important to note that Belgium has never received any extradition request from these countries. In 1999, Belgium sought and obtained the extradition of a Belgian national from Honduras. In that case, no problem relating to the application of the Convention arose.
Article 4
Paragraphs 1 and 2
Current provisions
Criminal Code
74. Bringing Belgian law into line with article 4 involves adapting Belgian substantive criminal law. The area of application of the current provisions aimed at combating acts of torture is not sufficiently broad to correspond to what is laid down in the Convention. In the first place, article 438 of the Criminal Code provides that:
"When a person under arrest or detention has been subjected to physical torture, the perpetrator shall be punished by forced labour for a period of 10 to 15 years.
"The punishment shall be forced labour for a period of 15 to 20 years if the torture has caused an apparently incurable disorder, or a permanent inability to work, or the complete loss of the use of an organ, or a serious mutilation.
"If the torture has caused death, the perpetrator shall be sentenced to forced labour for life."
75. However, this article covers only cases of torture suffered by a person under arrest or detention. Article 347 bis of the Criminal Code provides that acts of torture constitute aggravating circumstances in offences relating to hostage-taking.
76. Mention should also be made of article 376 of the Criminal Code, which relates to rape or indecent assault, aggravated by acts of physical torture, and article 398, on wounding with intent to harm, but these provisions are not sufficiently precise to meet the requirements of the Convention fully.
Act of 16 June 1993 concerning the punishment of serious violations of international humanitarian law
77. Mention should be made of the Act of 16 June 1993 concerning the punishment of serious violations of the Geneva Conventions of 12 August 1949 and their Additional Protocols of 8 June 1977 (Moniteur belge of 5 August 1993), article 1 of which condemns, inter alia, "torture or other inhuman treatment, including biological experiments".
78. However, this Act covers only "serious offences which, by action or omission, cause harm to the persons and property protected under the Conventions signed in Geneva on 12 August 1949 and approved by the Act of 3 September 1952, and under Additional Protocols I and II to those Conventions, adopted in Geneva on 8 June 1977 and approved by the Act of 16 April 1986, without prejudice to the penal provisions applicable to other violations of the conventions referred to in the present Act and without prejudice to the penal provisions applicable to violations committed by negligence (…)" (art. 1).
79. The Act of 16 June 1993 was amended by the Act of 10 February 1999, which broadened its area of application. In addition to serious violations of the Geneva Conventions and their Additional Protocols, the Act criminalizes genocide and crimes against humanity. Hence the field of application of this Act covers more than torture when it constitutes a serious violation of the Geneva Conventions, since it extends to acts of torture which are essential elements of the crime of genocide (art. 1, para. 1 (2)) or of crimes against humanity (art. 1, para. 2 (6)).
Articles 37 and 38 of the Police Functions Act: use of force or coercion
The principle
80. Police officers are regularly led to use coercive measures. The use of such measures is clearly limited by the conditions set out in articles 37 and 38 of the Police Functions Act of 5 August 1992.
81. The existence of these provisions is to be welcomed, but they were criticized by the Council of State, which considered them too general in nature. The law should have made express provision for recourse to coercive measures in each situation, it felt, and should also have stipulated the triggers and mode of application. Parliament did not adopt this approach, which it considered too burdensome.
82. The Council of State's criticisms were partially taken into account in the Act, however. The principal scenarios involving the use of force were dealt with in specific, detailed provisions: coercive measures (art. 1, para. 3); personal searches (art. 28); vehicle searches (art. 29); confiscation (art. 30); administrative arrest (art. 31); the use of force (art. 37); and the use of firearms (art. 38).
83. Moreover, the conditions in which the police services may apply coercive measures are also dealt with in the legislation concerning the organization of the police services (for example, the use of handcuffs, prison vans or tear-gas grenades).
84. The preamble to the Act sets out what is meant by the use of coercive measures and force. This concept must be viewed in the broad sense, covering all procedures for neutralizing an individual, up to the act of killing him or her. The concept of coercive measures embraces, in addition to material coercion in the physical sense of the term, encroachments on the freedom of the individual (deprivation of liberty, identity checks, searches, confiscation, etc.).
Conditions set out in articles 37 and 38 of the Police Functions Act
85. Any use of force is subject to respect for the following four principles:
Lawfulness: The use of force must correspond to a lawful purpose.
Necessity: The use of force must be the last resort in pursuing the objective sought, when it cannot be achieved otherwise.
Proportionality: The use of force must be gradual, reasonable and in keeping with the objective sought.
Appropriateness: Force must be used in accordance with the context of the action. It may not harm another interest which is higher than that which it is wished to protect.
Standing Committee on the Supervision of the Police Services
86. Annexed hereto are the 1999 and 2000 reports of the Standing Committee on the Supervision of the Police Services. These reports contain statistics relating to complaints, allegations and criminal investigations into police officials in connection with behaviour considered to violate the law or their code of conduct.
Royal decree of 30 March 2001 establishing the legal status of the personnel of the police services (Moniteur belge of 30 March 2001) (see above)
Minors (Protection under the Criminal Law) Act of 28 November 2000
87. In order to strengthen the protection of children, in particular against the various forms of sexual exploitation, an Act on the protection of minors under the criminal law was adopted
on 28 November 2000 (Moniteur belge, 17 March 2001). This Act, which entered into force on 1 April 2001, introduced various amendments to the Act of 13 April 1995 on provisions to prosecute and punish trafficking in human beings and child pornography.
88. A number of elements are taken into account. The Act on the protection of minors under the criminal law includes provisions strengthening the protection of children against the various forms of sexual exploitation, abduction, neglect and starvation, and abandonment. It revises and seeks to rationalize the penalties and aggravating circumstances related to the age of the victims, in cases of sexual abuse and serious ill-treatment.
89. Worthy of note is the introduction of a specific article relating to sexual mutilation of women and young girls, which clearly lays down that such practices are inadmissible and contains provision for tailored punishments.
90. Article 409 of the Criminal Code reads as follows:
"1. Any person who has practised, facilitated or encouraged any form of mutilation of the genital organs of a person of the female sex, with or without that person's consent, shall be liable to imprisonment for a term of three to five years.
"Attempts to commit such offences shall be punishable by imprisonment for a term of eight days to one year.
"2. If the mutilation is practised on a minor or for pecuniary reward, the punishment shall be rigorous imprisonment for a term of five to seven years.
"3. When the mutilation has caused an apparently incurable disorder, or a permanent inability to work, the punishment shall be rigorous imprisonment for a term of 5 to 10 years.
"4. When mutilation unintentionally causes the death of the victim, the punishment shall be rigorous imprisonment for a term of 10 to 15 years.
"5. If the mutilation referred to in paragraph 1 has been carried out on a minor or a person who, by virtue of her physical or mental state, was not in a position to care for herself, by her father, mother or other older relatives, any other person who has authority over or is responsible for the care of the minor or disabled person, or any person who cohabits occasionally or habitually with the victim, the minimum level of the punishments set out in paragraphs 1 to 4 shall be doubled in the case of imprisonment, and increased by two years in the case of rigorous imprisonment."
91. This new article does not characterize acts of torture as aggravating circumstances, but in future it will be possible to punish torture inflicted in the form of mutilation of sexual organs in the same way as any other form of torture when the new article 417 bis is incorporated in the Criminal Code (see above).
Bill to bring Belgian law into line with the Convention
92. It has proved necessary to coordinate and adapt the provisions of the Penal Code which, whether explicitly or not, relate to acts of torture.
93. On 16 February 2001 the Council of Ministers approved a bill - which may be amended when it is considered by Parliament - designed to insert in the Penal Code three new articles characterizing torture (art. 417 bis), inhuman treatment (art. 417 ter) and degrading treatment (art. 417 quater) as offences, and also to adapt to the content of these new articles the articles characterizing torture as an aggravating circumstance in cases of hostage-taking (art. 347 bis), indecent assault or rape (art. 376).
94. Reference is made to the observations on article 16 of the Convention relating to the new characterizations of inhuman treatment and degrading treatment in the Penal Code.
95. The new article 417 bis which is to be inserted in the new section V of book II, title VIII, chapter I of the Penal Code reads as follows:
"1. Any person who subjects another person to torture shall be liable to punishment in the form of rigorous imprisonment for a term of 10 to 15 years.
"2. The offence referred to in paragraph 1 shall be punishable by rigorous imprisonment for a term of 15 to 20 years when it is committed:
"1. By a public officer or official or a law enforcement officer acting in the performance of his functions;
"2. Against a person who is particularly vulnerable on account of pregnancy, illness, disability or a physical or mental handicap;
"3. Against a minor who has not reached the age of 16; or
"4. When the act has caused an apparently incurable disorder, a permanent physical or mental disability, complete loss of the use of an organ, or a serious mutilation.
"3. The offence referred to in paragraph 1 shall be punishable by rigorous imprisonment for a term of 20 to 30 years when:
"1. It has been committed against a minor or a person who, by virtue of her physical or mental state, was not in a position to care for herself, by her father, mother or other older relatives, any other person who has authority over or is responsible for the care of the minor or disabled person, or any adult who cohabits occasionally or habitually with the victim; or
"2. It caused unintentional death.
"4. The orders of a superior or an authority cannot justify an offence of the type referred to in paragraph 1."
Characterization of torture as an offence
96. Given the nature and gravity of the constituent elements of torture, the task of bringing Belgian law into line with the Convention makes it essential to characterize such elements in the shape of a distinct principal offence. This has been done in the new article 417 bis.
97. It will be remembered that the new article 417 bis does not set out a precise definition of the concept of torture, in order not to confine it in too strictly predefined a framework. Two observations are pertinent in this regard: when interpreting the concept of torture as referred to in article 417 bis, certain restrictions stipulated in the Convention must be disregarded, and the definition of torture which has emerged in the case law of the European Court of Human Rights must be reflected.
98. As is made clear in the preamble to the bill, the concept of torture to be introduced into the Penal Code does not take into account the following fundamental restrictions set out in article 1 of the Convention:
(a) Restriction relating to the status of the perpetrator
99. The Convention focuses on acts carried out "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity". In domestic law, there are no grounds for such a limitation. Neither the Belgian Penal Code (arts. 347 bis, 376 and 438) nor the case law of the European Court of Human Rights in relation to article 3 of the European Convention on Human Rights (in particular its judgement A. v. United Kingdom, 23 September 1998, para. 22) contain such a limitation.
(b) Restriction relating to special intent
100. The Convention requires that the suffering should have been inflicted with a specific purpose: "for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind (…)". The requirement relating to special intent, as stipulated in the Convention, is also ruled out from the interpretation of the new article 417 bis of the Penal Code. Both the terms of the definition and the preparatory work for the Convention demonstrate clearly that "gratuitous torture" is not the target here. This in no way prejudges the issue of whether it is desirable to place gratuitous torture within the sphere of application of the concept in domestic law. Hence Belgian courts may characterize as "torture" acts which inflict severe suffering even when the act constitutes "gratuitous torture".
(c) Restriction of scope relating to the juridical context within which the torture falls
101. The Penal Code does not take into account the following limitation stipulated in the last part of the definition of the concept of torture: "It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." It would be difficult to comprehend such a limitation in Belgian law, which cannot allow the infliction of severe suffering, as such, as a lawful sanction. It should be pointed out that neither the provisions governing custodial penalties nor those relating to the organization of the prison system should be interpreted as inflicting such suffering, as such.
102. Otherwise, the characterization contained in our domestic law is in keeping with the concept of torture in international law. In this way, the manner in which the concept of torture contained in article 417 bis should be interpreted coincides with that set out in the Convention as to the behaviour of the perpetrator and the nature of the suffering inflicted on the victim.
103. As regards the nature of the suffering, it is important to emphasize that such suffering may be physical or mental.
104. Account should also be taken of the element relating to the intensity of the suffering inflicted: the Convention speaks of "severe suffering". This expresses the idea that there is a threshold below which the characterization of torture is not appropriate. The act will then be characterized as "inhuman treatment", or as "degrading treatment" if the criteria for "inhuman treatment" are not met (see commentary to article 16 of the Convention). This distinction between these three concepts drawn on the basis of a threshold of intensity may be found in the case law of the European Court of Human Rights. In this way, the characterization of torture is reserved for "deliberate inhuman treatment causing very severe and cruel suffering" (Ireland v. United Kingdom, 18 January 1978, GA, No. 11, para. 167). Inhuman treatment is treatment which "deliberately causes mental or physical suffering of particular intensity" (Tyrer case, 25 April 1978, No. 12, judicial corporal punishment in the Isle of Man). Torture thus constitutes an aggravated form of inhuman treatment (Ireland v. United Kingdom, para. 167).
105. Yet it is not sufficient to emphasize the intensity of suffering in order to identify the specific nature of the new offence. It is also based on the gravity of the act, not inasmuch as it causes a degree of pain, but because it embodies a very special contempt for the individual.
Applicable punishment
106. The basic punishment laid down for the offence of torture is rigorous imprisonment for 10 to 15 years, that is, the punishment stipulated in article 438 of the Penal Code, under which physical torture was an aggravating circumstance in arbitrary or unlawful detention. In the case covered by this article, determination of the punishment - 10 to 15 years' rigorous imprisonment - is based on the most serious act, that is, torture. This explains why the punishment laid down for acts of torture is identical to that laid down in article 438 of the Criminal Code.
107. Paragraphs 2 and 3 of the new article 417 bis of the Penal Code institute a system of more severe punishments corresponding to a variety of circumstances: the special vulnerability of the victim, the age of the victim, the consequences of the act for the victim, the authority exercised by the perpetrator over the victim, the death of the victim.
108. It should be noted that all the punishments laid down in this bill have been brought into line with the Death Penalty (Abolition) and Serious Penalties (Amendment) Act of 10 July 1996 (Moniteur belge of 1 August 1996).
Order of a superior or an authority
109. As indicated above, paragraph 4 of article 417 bis incorporates the content of article 2, paragraph 3, of the Convention, in order to ensure that Belgian law is in conformity with the provisions of the Convention.
110. In this regard, it should be emphasized that provisions similar to those of paragraph 4 of article 417 bis are customary provisions in cases of serious offences. A similar provision is also to be found in article 5 of the Act concerning the punishment of serious violations of international humanitarian law of 16 June 1993, and also in article 7 of the statute of the International Criminal Tribunal for the Former Yugoslavia and article 6 of the statute of the International Criminal Tribunal for Rwanda, as well as in article 33 of the Rome Statute of the International Criminal Court.
Torture as an aggravating circumstance in hostage-taking
111. Paragraph 5 of article 347 bis of the Penal Code provides that torture is an aggravating circumstance in hostage-taking. This provision retains its raison d'être despite the specific characterization of torture in the new article 417 bis of the Criminal Code. Under the rules governing combinations of offences, only the severest punishment is imposed. In cases of hostage-taking with the aggravating circumstance of acts of torture, paragraph 5 of article 347 bis provides for a punishment of rigorous imprisonment for life. In the event of a combination of offences, this will be the only punishment imposed, since it is severer than that laid down in article 417 bis for acts of torture.
112. In the interests of consistency with the new article 417 bis, it was deemed essential to remove the limitation to physical torture alone as set out in the former article 347 bis of the Criminal Code and extend it to all forms of torture. In this regard, it should be pointed out that torture as an aggravating circumstance in hostage-taking must be aimed at causing suffering distinct from that inherent in the principal offence.
Torture as an aggravating circumstance in indecent assault or rape
113. Article 376, paragraph 2 of the Criminal Code characterizes torture as an aggravating circumstance in indecent assault or rape. This provision retains its raison d'être in the context of the rules governing combinations of offences, but the restriction to physical torture alone must disappear. The above observation needs to be repeated: torture as an aggravating circumstance in indecent assault or rape must be aimed at causing suffering distinct from that inherent in the principal offence.
Article 5
114. Article 5 relates to the competence of Belgian courts to try acts characterized as offences under the Convention. This provision contains mandatory rules for the extension of the competence of the courts of States parties with the aim of increasing the number of cases in which acts characterized as offences under the Convention can be prosecuted in the courts of the States parties.
115. On 15 September 2000, as part of efforts to bring Belgian law into line with the provisions of the Convention, the Council of Ministers approved a bill to amend article 12 bis of the Preliminary Title of the Code of Criminal Procedure. The Council of State issued its opinion on 24 January 2001, and the bill was tabled in Parliament on 28 March 2001.
Bill amending article 12 bis of the Preliminary Title of the Code of Criminal Procedure
116. The purpose of this bill is to convert article 12 bis into a generally applicable provision which confers competence on Belgian courts to hear all cases where an international convention contains a mandatory rule for the extension of the competence of the courts of the States parties. For example, the new formulation makes it possible systematically to meet conventional international obligations in this area constituting an application of the principle aut dedere aut judicare under which, when the alleged perpetrator of the act referred to in the Convention has been found on Belgian soil and has not been extradited to one of the competent States under the convention, he must be prosecuted in Belgium irrespective of his nationality, the nationality of the victim or the place where the offence was committed.
117. The above-mentioned article 12 bis has been replaced by the following provision:
"Belgian courts are competent to hear cases involving offences committed outside the territory of the Kingdom which are referred to in an international convention by which Belgium is bound, when such a convention imposes on Belgium, in any way, an obligation to submit the matter to its competent authorities for prosecution."
118. It should be noted that the sole obligation falling on Belgium in the cases covered by article 12 bis is that of submitting the matter to its competent authorities for the purpose of prosecution - that is, to the government procurator, who continues to enjoy discretion as to the advisability of prosecution. Furthermore, article 12 bis must be read in conjunction with article 12, which precedes it, and stipulates that, subject to exceptions listed in the article itself, "the offences dealt with in the present chapter shall be prosecuted only if the accused is in Belgium".
Article 6
Paragraphs 1 and 2
119. In presenting the conditions attached to article 6, it is vital to indicate the various cases in which it might apply, once the above-mentioned bill has been adopted to bring Belgian law into line with the Convention, on the assumption that the suspect is on Belgian soil.
120. In the first category of situation, i.e. when the offence has been committed by a Belgian national on Belgian territory against another Belgian national, Belgium alone has jurisdiction. In a second category of situation, i.e. when the offence has been committed by a national of a foreign State on the territory of that State against another national of the same State, in accordance with the usual principle of international criminal law, that State alone has jurisdiction and is entitled to demand extradition of the offender or suspect. Belgium would generally agree to such extradition, in view of article 8 of the Convention.
121. The following may be applied, depending on the circumstances:
122. In all cases, Belgian legislation enables the responsible authorities to ensure the presence or detention of the suspect and it prescribes an immediate investigation.
Lawfulness of arrest and detention
123. Under article 12 of the Belgian Constitution, "freedom of the individual is guaranteed. No one may be prosecuted except in the cases provided for in the law and in the manner prescribed therein. With the exception of cases of flagrante delicto, no one may be arrested except by virtue of a reasoned court order, which must be served at the time of arrest, or at the latest within 24 hours".
System of ordinary law
124. Belgian legislation provides for two main types of arrest by law enforcement personnel: administrative arrest and judicial arrest.
Administrative arrest
125. (See commentary to article 11 of the Convention.)
Judicial arrest
126. Pursuant to the Pre-Trial Detention Act (LDP), in the case of a crime or offence committed in flagrante delicto a judicial police officer shall proceed to arrest the suspect (art. 1). In practice the arrest is often made by a law enforcement officer who is not a judicial police officer. Having no actual powers of arrest, the officer will merely take protective measures (in casu, to prevent the suspect from escaping) and immediately bring the suspect before a judicial police officer). The officer must immediately inform the crown procurator, in order that he may exercise immediate and effective control over the decision. Police custody may in no case exceed 24 hours from the time of arrest.
127. Only an examining judge is empowered to issue an arrest warrant (LDP, arts. 16-20), without which a person cannot be placed in pre-trial detention. At this stage, more specifically during his first examination of the accused, the examining judge is required to inform the accused of his right to choose a lawyer (art. 16, para. 4). If the accused fails to choose a lawyer, the examining judge shall so inform the President of the Bar Association or his deputy, in order that a lawyer may be appointed pro deo. The person arrested may not meet with a lawyer until he has been questioned by the examining judge. Immediately after questioning, the accused may communicate freely with a lawyer (art. 20, para. 1). He or she may do so even before the arrest warrant has been issued and served. In practice, lawyers are often not able to meet with their clients before the clients are admitted to prison.
128. Generally speaking, accused persons under an arrest warrant may communicate immediately with their relatives and associates. However, if the needs of the investigation so dictate the examining judge may prohibit the accused from communicating with persons other than their lawyer (art. 20). Such secrecy is reserved for exceptional situations.
Extradition law
129. A distinction should be drawn between the two phases of extradition proceedings:
Phase consisting of provisional arrest with a view to extradition, pending the transmission of the official extradition request. In such cases examining judges in Belgium issue a provisional arrest and detention warrant. The person arrested may challenge the legality of the arrest and apply to the Judges' Council Chamber for release (Extradition Act, art. 5, para. 5). An appeal may be lodged against the decision of the Judges' Council Chamber before the Indictment Division, whose decisions are subject to an appeal to vacate. The duration of provisional arrest is, however, limited. The maximum duration is 18 days (Benelux) or 40 days (Council of Europe). A few bilateral conventions provide for a longer period (75 days; see article 10 of the Convention between Belgium and the United States).
Phase consisting of detention pending extradition, which is based on the documents accompanying the official extradition request. Detention pending extradition is of a final nature, in that the person to be extradited is placed at the disposal of the Government (Extradition Act, art. 3).
130. Detention pending extradition may take place in two types of cases:
In the first case, the extradition is requested on the basis of an arrest warrant issued by a foreign authority. The Judges' Council Chamber is then called upon to enforce it. Although this is not an adversarial procedure, the person arrested may lodge an appeal with the Indictment Division. If the latter annuls the enforcement order, the person is released. If the enforcement order is upheld, the decision of the Indictment Division is subject to an appeal to vacate. In a judgement of 5 December 1995, the Court of Cassation considered that an arrested person could apply to the Indictment Division for provisional release when he or she had lodged an appeal against the enforcement order issued by the Judges' Council Chamber. An appeal against the enforcement order makes detention pending extradition "provisional" until such time as the Indictment Division or the Court of Cassation has reached a final decision on the enforcement order. This procedure, established by the Court of Cassation, guarantees that detention pending extradition will be in conformity with article 5 of the European Convention on Human Rights.
In the second case, extradition is requested on the basis of a conviction issued by a foreign authority. In such cases, the person is arrested after being served the judgement. The service of the judgement is tantamount to an arrest warrant. The Extradition Act does not provide for a remedy against the service of the judgement. In urgent cases, however, the interim relief judge is empowered under ordinary law to verify the lawfulness of the detention and may, if necessary, order the person provisionally released. Interim relief judges are already applying this legal possibility in practice. Provisional release may also be requested before the interim relief judge issues a decision, if the extradition request has been based on an arrest warrant. This procedure, which was set forth in the above-mentioned Court of Cassation judgement, is nevertheless not applicable in cases where extradition has been requested for the purpose of enforcing a judgement.
131. The extradition legislation has been the subject of a study by the University of Antwerp, under the direction of Ms. Chris Van Den Wyngaert, which has led to a series of proposals for an overall reform of extradition law.
132. The proposed system makes the decision on the admissibility of the extradition a strictly judicial decision. It is taken by the Indictment Division on the basis of a public and adversarial procedure, and is binding on the Ministry of Justice. Only compliance with essential requirements (double jeopardy, exception for political offences, etc.) is subject to judicial review.
133. A bill amending the Extradition Act should be submitted to Parliament in the coming months. The bill, however, does not address the complex problem of detention with a view to extradition. It aims to establish an abundantly clear distinction, similar to that provided in the extradition legislation of the Netherlands, between provisional arrest, detention pending extradition after the arrival of the extradition request and the documents on which the request is based (i.e. detention during the procedure for determining the admissibility of the extradition request) and detention following the extradition decision (up to the surrender of the person at the border).
134. As the extradition procedure is not a procedure on the merits, it is not necessary for a remedy to be provided against the admissibility decision. It is likewise unnecessary to provide for an adversarial procedure. In Belgium, the Indictment Division issues an opinion on the admissibility and advisability of the extradition request. However, the opinion, which is rendered following adversary proceedings in which the foreigner, his counsel and the Public Prosecutor are heard, is of merely advisory value. Consequently, it is not subject to an appeal to vacate. The opinion is kept secret, even from the foreigner, until the sovereign decision of the Government has been taken. The final decision in extradition proceedings is for the Government (Minister of Justice) to take and therefore represents an administrative act. The Minister is not bound by the Indictment Division's opinion and may take a decision that is contrary to it. However, it is very rare in practice for the Minister not to follow the Indictment Division's opinion. In any event, differences are based more frequently on purely technical reasons than on advisability.
135. Like all administrative acts, the Government's decision must be a reasoned one and is subject to applications for both stay of execution and annulment.
Paragraph 3
136. This point is covered by article 36, paragraphs 1 (b) and (c) and paragraph 2, of the Vienna Convention on Consular Relations of 24 April 1963, which stipulates:
"1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(…)
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph.
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2. The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended."
137. Article 30 of the General Prison Regulations stipulates that, unless a prohibition to communicate has been ordered by the court, persons of foreign nationality, whatever the basis for their detention, are authorized to communicate, if they so desire, with consular and diplomatic officers from their country.
138. Pursuant to article 30 of the Regulations, a series of consular conventions have been concluded with various countries. All the circulars in question stipulate that all foreigners arrested must always be informed of their right to enter into contact with consular officers of their country (sending State).
139. It is for the competent authorities of the State of residence (i.e. Belgium) to inform the authorities of the sending State of the provisional arrest, detention or limitation of liberty in any form whatsoever of a national of that State. The sending State shall be informed within three days of the arrest, detention or limitation of liberty. Consular officials have the right to visit detainees, speak with them in the language of either the sending State or the State of residence and remain in contact with them. They also have the right to exchange correspondence and communications with them. These rights are exercised in conformity with the laws and regulations of the State of residence.
140. All the conventions also contain a derogation from article 30 of the General Prison Regulations, in that, if consular officials appear at the prison to visit a national of their country, they must be able to communicate with the national regardless of his or her wishes. However, there is nothing to prevent detainees from subsequently declining the consul's services.
141. These provisions are not applicable to detainees who have political refugee status or have applied for recognition of such status.
Article 7
Paragraph 1
142. This paragraph derives directly from article 5, paragraph 2, and applies the principle of aut dedere aut judicare to the specific case of offences covered by the Convention. No further comments are therefore required.
Paragraph 2
143. Under Belgian law, acts of torture constitute serious offences, as was stated under article 4 above. Accordingly, they may be treated only as such by the competent prosecuting authorities. In addition the standards of evidence are independent of the grounds on which the State exercises its jurisdiction.
Paragraph 3
144. All persons facing charges are entitled to fair treatment regardless of the nature
of the offence with which they are charged, in accordance with Belgian law and the
international instruments to which Belgium is a party, foremost among them the International Covenant on Civil and Political Rights (art. 14) and the European Convention on
Human Rights (art. 6).
Article 8
145. This article requires States parties to include the offences set forth in article 4, i.e. acts of torture, attempts to commit torture, complicity and participation in torture, in any extradition treaty concluded with another State party. Belgium will, of course, respect this obligation when concluding any bilateral or multilateral extradition treaty with other States parties.
Article 9
146. This provision is typical of those appearing in several international conventions on criminal matters, such as the Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague on 16 December 1970 (art. 10) and the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 23 September 1971 (art. 11).
147. It should be noted that Belgium does not have comprehensive legislation governing judicial assistance. At present, however, judicial assistance in Belgium is governed by the following three international instruments: the Benelux Treaty of 27 June 1962, the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and the Convention applying the Schengen Agreement of 19 June 1990, as well as the following general domestic legislative provisions: articles 11 and 873 (2) of the Judicial Code and article 11 of the Extradition Act of 14 March 1874.
Article 10
148. The rules prohibiting and punishing the use of torture, which appear in the basic provisions or draft provisions regulating each of the professions concerned, are or will be included in the training courses organized for their members.
149. It should be noted that, following the adoption of the Act of 7 December 1998 organizing an integrated, two-tier police force, work began on the elaboration of a code of ethics for the police services. The code will include the principle that all police officers shall treat persons under their supervision with respect for human dignity and shall in all circumstances refrain from subjecting such persons to inhuman, humiliating or degrading treatment or punishment. The code of ethics should encourage the development of attitudes and behaviours that will improve the quality of relations between police officers and the public.
150. Multidisciplinary training (legislative, psychological and social training and training relating to professional practice) has begun, concerning appropriateness of the use of force and the need to introduce it gradually. Outside partners are participating (universities, League of Human Rights, Centre for Equal Opportunity and Action to Combat Racism). The goal is to ensure that relations are managed in a way that is conducive to the development of democratically-oriented standards of behaviour.
151. Recourse to force and the conditions under which force may be used are the main focus of the integrated police basic training course. Respect for persons of foreign origin and for human rights are a principal theme of the entire basic training course for police officers. The annex contains the training programme for the officials of the integrated police at their different levels of responsibility.
Training of prison staff
152. All the courses regularly draw attention to the two main aspects of a prison officer's work: security and reinsertion. Trainers emphasize concepts such as respect, listening to others and communication. Participants are encouraged to think about and discuss prison officers' daily behaviour. The human rights aspect is given in-depth treatment in the course on the European Prison Rules.
Training of personnel responsible for expulsions and closed centres
153. Before the reform of the police services every gendarme received one to five years' training (for non-commissioned and commissioned officers respectively). This initial course of training included the corpus of legislation relating to foreigners. In addition, each gendarme assigned to border control underwent a further selection process and followed a six-month training course before receiving removal assignments. A detailed training course in border control and escorting aliens was prepared. In 1999, 432 hours were devoted to training in removal of aliens and every staff member responsible for removals is bound to respect the procedure.
154. The centres' security staff receive the training necessary for appropriate intervention to deal with violence when tensions arise. Training focuses on three areas: first, students are asked to describe the legal frame of reference for the staff of the closed centres (for example, responsibilities), second, they learn to evaluate difficult situations and take preventive measures (including, if necessary, a psychological approach, communications aptitude, etc.) and third, they learn to neutralize a dangerous individual in an evenhanded manner. (The annex contains the training programme which senior officers of the integrated police force will be following.)
Training for the armed forces
155. It will be recalled that torture is prohibited under the Geneva Conventions of 12 August 1949 and their Additional Protocols of 8 June 1977 (Convention I, arts. 3 and 50; Convention II, arts. 3, 12 and 51; Convention III, arts. 3 and 130; Convention IV, arts. 3, 32 and 147; Protocol I, arts. 11, 75 and 85, and Protocol II, art. 4).
156. The courses organized for the armed forces on armed conflict law and the rules of engagement, which include the Geneva Conventions and Additional Protocols, provide for the prohibition of torture and other cruel, inhuman or degrading treatment.
157. These courses will naturally be adapted to focus on the Convention against Torture. In each of the armed forces, advisors in the area of armed conflict may be asked to follow up the course contents relating to the prohibition of torture.
Training of judicial personnel
158. Human rights training is part of the basic training provided for judicial interns, which is compulsory; it includes information about the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and ends with a visit to the European Court of Human Rights.
159. In addition, the ongoing training programme for judges devotes a number of study days to raising awareness of the Convention's provisions. Training sessions include the right to freedom, the prohibition of torture and the detention and interrogation of accused persons.
160. Children's judges receive specific training that includes the status of minors placed in specialized institutions.
Article 11
161. The concepts of custody and treatment of persons who have been arrested, detained or imprisoned in any way whatsoever correspond to distinct legal situations, which are presented successively below.
Police custody and pre-trial detention
Administrative arrest and judicial arrest
Administrative arrest
162. Belgian law provides for two main types of arrest by law enforcement personnel: administrative arrest and judicial arrest.
163. Administrative arrest may be defined as "loss of the right to freedom of movement, ordered by a police offer with a view to preserving, maintaining or restoring public order, the duration of which is so brief as to render ineffective any remedies aimed at having it lifted".
164. Articles 31 to 33 of the Police Functions Act of 5 August 1992 harmonized and extended the existing provisions concerning administrative arrest. Under these provisions, a policeman may, in case of absolute necessity, administratively arrest a person who is causing an obstruction, causing an actual breach of the peace or preparing to commit certain offences, or, with a view to making him desist, a person committing certain offences. Article 22 of the Act also permits administrative arrests when dispersing crowds in the context of the maintenance and restoration of public order.
165. Administrative arrest cannot last longer than the circumstances warranting it, and can in no case ever exceed 12 hours. Where a person is concurrently subjected to administrative and judicial arrest for the same acts, the duration of the administrative arrest is included in the 24‑hour period of deprivation of liberty to be taken into consideration in application of the Pre-trial Detention Act. The Act provides for the obligation to record administrative arrests in a
special register and to inform the burgomaster or, if necessary, the special administrative police authority, at the earliest opportunity. A police officer who has made an administrative arrest is therefore bound to so inform the administrative police officer to whom he reports as soon as possible. Any arrest that undermines an individual's fundamental rights must immediately be monitored by a hierarchical superior having the status of administrative police officer. In addition, article 147 of the Penal Code sets forth penalties for illegal or arbitrary arrests.
166. If such monitoring does not take place, article 155 of the Penal Code sets forth penalties for an administrative or judicial police officer who neglects or refuses to end an illegal detention that has been brought to his attention.
167. Article 34 of the same Act deals with identity controls. Any person who cannot or will not establish his identity may be held for the period necessary for the establishment and verification thereof. However, that period may in no case exceed 12 hours. The person being controlled may in some circumstances be asked to accompany the police official to the police station or gendarmerie. He will have to wait there under surveillance until his identity is established (in appropriate premises, but not necessarily in a cell or provisional lock-up). If recourse to force is necessary, he may be confined to a cell, and thus administratively arrested, in which case the fact will then be recorded in accordance with article 33.
168. Lastly, article 35 of the Act provides that "administrative and judicial police officers may not unnecessarily expose arrested or detained persons to public curiosity. They may not subject them or allow them to be subjected to the questions of journalists or third parties unconnected with their cases, photograph them or allow them to be photographed, except as necessary for their identification or for other purposes determined by the competent judicial authority. The identity of the persons concerned may not be revealed without the consent of the competent judicial authority, except in order to inform their families of their arrest or detention."
Judicial arrest
169. (See commentary to article 6 of the Convention.)
Guarantees against ill-treatment of persons under administrative or judicial arrest
Right to inform a relative or a third party
170. There is as yet no single legal mechanism in Belgium. Article 31, paragraph 4, of the Police Functions Act stipulates that "any individual who is under administrative arrest may request that a person in his or her trust should be so informed". This article refers not to an actual right, but simply a possibility, of having a trusted individual informed of one's arrest.
171. Article 35, paragraph 3, of the Act, which deals with judicial arrest, provides implicitly for the possibility of informing a relative in cases where a person is taken into custody, unless the needs of the inquiry dictate otherwise.
172. There is no time limit on the exercise of this right. This is due to the fact that the period of deprivation of liberty is extremely short (24 hours at the most for judicial arrest - see Pre-Trial Detention Act, article 1).
173. In practice, therefore, anyone who has been arrested may request that a person of his or her choice should be informed. However, the police are not bound to inform anyone at any cost. This third person must be a trusted individual who will not be responsible for further disturbances of public order. As the person arrested is not authorized to inform the third person directly, the police will do so. The police must make a normal and reasonable effort to inform the person in question. It should be noted that, when minors are arrested, the parents or third persons holding parental authority are immediately informed of the arrest and place of detention. A legislative initiative should shortly be harmonizing the legislation in this area.
Access to a lawyer
174. Belgian law currently makes no provision for a detainee to have access to a lawyer of his or her choice immediately after arrest.
175. On issuing arrest warrants, examining judges inform accused persons of their right to choose a lawyer. If the accused has not chosen or does not choose a lawyer, the judge so informs the President of the Bar Association or his deputy, pursuant to article 16, paragraph 4, of the Pre‑Trial Detention Act. A lawyer is then appointed (possibly pro deo, i.e. free of charge for persons in need). Article 20 of the Act stipulates that the accused may communicate freely with his or her lawyer immediately after the first hearing. It should be borne in mind that, when the needs of the investigation so dictate, an examining judge may prohibit accused persons from communicating with persons other than their lawyer (art. 20). Such confidentiality is reserved for exceptional situations.
Access to a doctor of one's choice
176. The legislation does not explicitly provide for detained persons having access to a doctor. In practice, a detainee is generally entitled to be examined and treated by a doctor of his or her choice. When a detainee cannot or will not choose a doctor, the duty doctor is called in.
177. Article 442 bis of the Penal Code provides that anyone who withholds aid from another person in danger is subject to prosecution. Paragraph 1 of this provision reads as follows:
"A person who fails to assist or to provide assistance to a person exposed to serious danger, whether he has seen for himself the situation of this person or whether the situation is described by those who request his intervention, shall be liable to eight days' to six months' imprisonment and/or a fine of 50 to 500 francs."
178. It is therefore obvious that if a police officer notes that the detainee's condition requires medical treatment, a doctor will be called in.
179. It should, however, be noted that it is not always possible to call in a doctor of the detainee's choosing. In such circumstances the duty doctor is generally called, as he or she is able to provide assistance at night or on weekends or holidays.
180. Similarly, when a person who is intoxicated through the effect of alcohol or drugs is detained for committing a crime or offence or for infringing the highway code, the police officer will immediately request the services of a doctor.
181. Police officers are required to be present during examinations and blood collection. In cases involving drinking and driving, it is compulsory for members of the police to be present.
182. If a doctor issues a medical certificate, the detainee may request that the certificate should be entered into his file. The file may be consulted by the detainee and his counsel.
183. The manner in which medical examinations are conducted depends, on the one hand, on the police stations' internal regulations, which may be issued by the commanding officer under article 171 bis of the new Communes Act, and, on the other, the Code of ethics which the doctor deems fit to apply, according to the circumstances.
184. Generally speaking, if the doctor agrees and if his security is guaranteed, examinations may take place out of the hearing and sight of the police.
Right to be informed of one's rights
185. At present the provisions applied are article 5, paragraph 2, and article 6, paragraph 3 (a), of the European Convention on Human Rights, which read as follows:
Article 5, paragraph 2: "Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him."
Article 6, paragraph 3: "Everyone charged with a criminal offence has the right (…) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him."
186. Accused persons also have the possibility of being informed of their rights pursuant to article 20 of the Pre-Trial Detention Act, which enables them to communicate freely with their lawyer.
187. A few police bodies have taken the initiative of posting a document of this nature in the detention area. In the Wavre district, for example, there are plans to post an information bulletin concerning the rights of arrested persons in the cell complex. This initiative may be extended to other districts, preferably through approval by the local prosecutor's office. The units' attention will be drawn to this possibility.
188. Expanding this measure and adopting legislation to make it compulsory would be a concrete and effective means of completing the set of preventive measures for combating unlawful police violence in the framework of detention.
Standard, comprehensive detention file
189. No such forms currently exist. At present, steps taken by the police in connection with deprivation of liberty are carefully entered in the record of the proceedings. These include the time of the beginning and end of the interrogation, the time of notification of the arrest by the police officer and the time when the person is brought before the judge.
Working Group on the Rights of Arrested Persons (administrative arrest and judicial arrest)
190. On the occasion of its first report on the situation in Belgium, the Council of Europe's European C