Implementation of short prison sentences: a curse or a blessing?
Short prison sentences were generally not executed in prison in the past. Since September 2022, however, this fact has changed and persons sentenced to a prison term of at least 2 years and up to 3 years must, in principle, carry out this sentence in prison. This group 'summary offenders' was previously kept outside prison walls through sentencing modalities as it electronic surveillanceand the provisional release.
Minister Vincent Van Quickenborne now wants custodial sentences of up to 3 years to be effectively enforced as well. The underlying reason is to reduce the boost confidence in Justice by countering the perception of impunity. To this end, detention houses are being established to accompany those with a prison sentence of up to 3 years and to relieve pressure on prisons. Currently, one detention house is already open in Kortrijk. The Berkendael (women's) prison would also eventually be transformed into a detention house, now that the inmates have been transferred to the new prison in Haren. However, in order to provide a place for all short-term prisoners, many detention houses will have to be opened. As long as this does not happen, the short-term detainees will end up in traditional prisons, which is problematic given the current overcrowding and staff shortages in our Belgian prisons.
What are short prison terms?
Short prison sentences are sentences up to and including 3 years. Prison sentences of 6 months to 3 years were systematically served in the past through electronic monitoring. Sentences under 6 months were not even carried out.
For the execution of custodial sentences up to and including three years, there was a return to ministerial circulars in which the prison director and the Detention Management Directorate determined the sentence execution without the intervention of a judge. Today, a judge sitting alone will determine the modalities for the execution of custodial sentences of more than two years and up to three years. It is planned that as of September 2023 sentences of less than 2 years are also effectively enforced. Sentencing modalities for custodial sentences of 3 years or more are determined by the sentencing court.
What sentencing modalities can the convicted person request from the sentencing judge?
A convicted person may apply to the sentencing judge to execute his staff under a certain modality. These modalities are the following: limited detention, electronic surveillance, conditional release and provisional release for removal from the territory or surrender.
An application for limited detention or electronic monitoring is possible from six months before 1/3rd of the sentence has been served. Application for conditional and provisional release is possible only from the time 1/3rd of the sentence has been served.
What procedure should be followed?
A convicted person, who is not yet in prison, receives a letter from the Public Prosecutor's Office, better known as the prison bill. After receiving this, the convict will have to present himself at the prison within 5 working days. It will then be verified whether or not the convicted person is eligible for a particular sentence execution modality. If this is the case and all conditions are met, then the prison sentence can be suspended until the sentencing judge rules. One is then given fifteen days to file with the sentencing judge which eventually crossed the sentencing modality will decide. In the meantime, the convicted person may temporarily leave prison. However, for convictions for sexual or terrorist offenses, the convict will have to remain in prison anyway until there is a ruling from the sentencing judge, even if all conditions are met.
Is there room for "short-term detainees" in our prisons? And what are detention houses?
Overcrowded prisons have been a problem in our country since 1980 and have stirred political policy on several occasions. In 2014, Belgium was even condemned for this by the European Court of Human Rights for a violation of the ban on inhuman and degrading treatment. So it was a priority for the justice ministers to make these against overcrowding at go. Several initiatives were undertaken to reduce the prison population and expand prison capacity. These include the introduction of electronic surveillance as an autonomous punishment and the construction of new prisons (Beveren, Marche-en-Famenne, Leuze-en-Hainaut and Haren). Despite all the efforts, today our prisons are still struggling with overcrowding, penitentiary strikes, staff shortages and old/inadequate infrastructures. By way of example, the prison population in the Antwerp jail house in Begijnenstraat today is around 700 convicts while there is only capacity for 439 convicts. The arrest house dates back to 1885 and is very outdated, making the living conditions precarious and demeaning are. The CPT (Committee for the Prevention of Torture) visited Antwerp Prison in 2021 and talked about the 'dilapidated state of prison', the inadequate shower and toilet facilities and poor hygiene that in some cases leads to cockroach and rat infestations. There is also insufficient space to install beds, so detainees have to sleep on mattresses on the floor.
Detention houses could partially address the major problem of lack of prison capacity. They are small-scale, closed and secure establishments with a capacity for 20 to 60 inmates. They offer shelter to persons with a prison sentence of up to 3 years and have a low security risk. Thus, those convicted of, for example, sexual offenses and terrorist crimes are never eligible for placement in a detention house. It is not a traditional prison, but it is subject to the same regulations as prisons. This means, among other things, that residents must follow strict rules, they have the same obligations as inmates in a prison, and they must meet strict conditions to leave the detention house. Permission is always required to leave the house, for a job interview for example. Inside the building itself, however, residents are allowed to move more freely for activities and assignments, in consultation with staff.
Curse or blessing?
Will this "deterrent" method reduce the prison population as Minister Van Quickenborne suggests, or will the prisons burst (even more) at the seams because of this new regulation? After all, if the short-term detainees cannot enter a detention house because there is simply no detention house or because they do not meet the conditions, they risk ending up in traditional prisons.
The enforcement of custodial sentences of more than 2 years and less than 3 years requires convicts to spend "only" a short period of time in prison, but the long-term consequences of incarceration, such as detention damage, should not be underestimated. The CPT also points out that increasing capacity is not a sustainable solution; efforts must be made above all -very urgently- to reduce the detention population itself.
Resources
Vasilescu vs. Belgium, Nov. 25, 2014
- Claes and O. Nederlandt, "Sentenced to a custodial sentence of three years or less. What will happen to me?", Fatik 2022, 5-10.
- Beyens and E. Maes, "The patchwork of ten years of criminal enforcement in Belgium**,",** Panopticon 2020, 10.
https://www.vrt.be/vrtnws/nl/2022/08/31/korte-straffen/
https://ctrg.belgium.be/wp-content/uploads//2022/04/CvT-Antwerpen-Jaarverslag-2021.pdf
- DAEMS, "European antifolter committee again sharp over Belgian prisons", The Lawyer's Newspaper 2022, 8-9.
