The lore of Belgium in times of ground sleepers: two weights and two measures?
A week ago the time had come. The decision on the surrender of Dave De Cock would be made by the Dutch Trial Chamber. Would Dave De Cock be surrendered to Belgium or would the surrender be refused? A promise made by the Belgian government tipped the scales in favor of surrender. But could Belgium legitimately put that promise as weight on the scales? Is it morally desirable or even legally possible for Belgium to make such a promise? In this article, Bannister Lawyers analyzes the major dichotomy that the Belgian promise creates.
To understand the Belgian pledge, we must first explain to you why such a pledge was necessary. And for that, in turn, we must first take you to the harrowing insides of Belgium's overcrowded prisons.
The state of Belgian prisons
That Belgium - in order to make surrenders possible - has to make certain promises is because of the precarious situation in which our prisons have been for years.
Just as jailers have been protesting for years about the state of Belgium's prisons, Belgium has been taken to task for its numerous human rights violations in those prisons. The European Court of Human Rights has already condemned Belgium dozens of times for the inhumane conditions our inmates endure.
Besides the inhumane treatment of Belgian internees, the lack of space is a recurring reason why Belgium is condemned for human rights violations. Meanwhile, a word was even coined for those who make up detainee numbers five, six and seven in a cell of four: "ground sleepers".
On March 22, 2021, there was a tragic record of 148 ground sleepers, 148 people for whom there was a "ticket to," but no prison available.
Today, too, the number of ground sleepers is at a sad high. On Feb. 2, 2022, as many as 81 people slept on the ground in Antwerp's Begijnenstraat.
Request for surrender?
Although places are full, Belgium regularly requests the surrender of a resident of another European member state. This is to try him in Belgium or to enforce a sentence imposed by Belgium.
To this end, Belgium uses the European Framework Decision adopted by the Council of the European Union on June 13, 2002. That framework decision aims to facilitate and unify the procedure for the surrender of persons between EU member states.
The starting point of the procedure concerning the surrender of a European citizen between member states, is the mutual trust between member states and the mutual recognition of each other's requests or European Arrest Warrants. In other words, when Belgium asks, the Netherlands surrenders.
There are exceptions to this automatic surrender, in part to ensure the protection of human rights.
With this in mind, the Netherlands has refused several times in the past to surrender a suspect to Belgium because of the threat of violation of his human rights in Belgian prisons.
The promise of the Directorate-General for Legislation, Fundamental Rights and Freedoms
To remedy this shortcoming - without in any way remedying the underlying problem - the Director General at the Directorate-General for Legislation, Fundamental Rights and Freedoms (DG WL), gave the following guarantee to the Netherlands: persons surrendered from the Netherlands to Belgium[1]:
- will have ample space in their cells;
- will be placed in cells where the plumbing will be separated from the rest of the cell;
- and will not end up in departments with ground sleepers.
This promise is labeled in Dutch case law as the "general detention guarantee."
This general detention guarantee has allowed several individuals to be surrendered to Belgium from the Netherlands without the need to stop the ongoing human rights violations in Belgian prisons.
The decision that led to Dave De Cock being able to be surrendered to Belgium and he will (in principle) not end up among the so-called ground sleepers is also a result of this general detention guarantee.[2]
Two measures and two weights?
Despite its generic name, the "general detention guarantee" is anything but generic.
Indeed, the guarantee applies only to persons surrendered from the Netherlands to Belgium. It does not apply to persons arrested in Belgium, rightly or wrongly. These persons do end up in the cells of Sint-Gillis, Antwerp and Dendermonde, where the number of inhabitants regularly exceeds the number of beds.
Instead of tackling the problem at the source, Belgium promises privileged prison conditions to people transferred from the Netherlands to Belgium. Privileged conditions, which the other prisoners - who do sleep on the floor - do not have.
The WL DG's decision is also legally questionable. After all, a government must properly justify any distinction it makes between individuals in similar situations.
In what way DG WL makes the distinction between detainees who are allowed to enjoy human rights and all others, is beyond our understanding as lawyers. Let alone that it is understood by our clients who spend their nights on the cold ground of Begijnenstraat.
[1] To that end, see the decision of the Amsterdam International Legal Aid Chamber dated October 7, 2021, ECLl:NL:RBAMS:2021:5759.
[2] To that end, see the decision of the International Judicial Assistance Chamber of Amsterdam dated February 22, 2022, ECLI:NL:RBAMS:2022:748, para. 7.
