Amendment to the Basic Law: individual special security regime becomes stricter
On May 28, 2024, the Law containing provisions on digitization of justice and various provisions II (1) appeared in the Belgian Official Gazette.
On this basis, amendments were made to, among others, the Law of January 12, 2005 on the Prison System and the Legal Status of Prisoners (hereinafter: Basic Law).
These changes may have implications for detainees who have alleged ties to organized crime AND have been suspected of or convicted of serving as the lead person of an association dealing in narcotics OR of a criminal organization.
For example, detainees may be placed under an individual special security regime (hereinafter IBVR) in which all social contact with other detainees and/or visitors is deprived. This regime results in the following consequences: alone on the walk, visitors behind glass, standard fouillage to clothing, activities without fellow inmates, telephoning only with numbers approved by the prison management and, since the change in the law, also permanent observation through a camera on cell.
This change in the law tends toward regimes that already exist in the Netherlands and Italy.
In Italy, originally leaders of the Italian mafia were completely isolated from the outside world by means of the 41bis regime. Meanwhile, this strict regime has been extended to people who have (allegedly) committed other crimes such as terrorism, kidnapping, etcv....
In the Netherlands, the Extra Secure Facility (EBI) in Vught prison. That regime was named by the Committee for the Prevention of Torture as "excessively restrictive."
General conditions, before the change in the law
In Belgium, in general, a detainee can only be placed in an IBVR under the following conditions (Article 116 of the Basic Law):
- When specific circumstances or a detainee's behavior indicate that he poses a continuing threat to security;
- And it was found that both control measures and the special security measures were inadequate.
That is, in principle, an IBVR can only be imposed as an "ultimum remedium" or last resort.
Thus, the prison warden will always have to first consider whether a control measure or a special security measure (BVM) cannot provide relief.
In addition, the inmate must pose a continuing threat to the security of the prison. This must be evident from his conduct or from concrete circumstances.
There is no end date on such regime; the director general can renew it every two months.
What did an IBVR entail before the change in the law?
Before the May 28, 2024 legislative amendment, Article 117 of the Basic Law stated the following:
"Placement in an individual special security regime consists of one of the measures listed below or a combination of several of them:
1° exclusion from participation in common activities;
2° systematic control of outgoing and incoming correspondence in accordance with the rules set forth in Articles 55 and 56;
3° restriction of visits in a room equipped with a transparent wall separating visitors from the detainee, as provided in Article 60, § 3;
4° partial disqualification from using the telephone, as provided in Article 64, § 3;
5° systematic application of the control measure provided for in Article 108 § 1 (this concerns the examination of clothing by the penitentiary officers);
6° application of one or more special security measures provided for in Article 112 § 1."
In addition, Article 118 of the Basic Law stated that the decision for placement in a special individual security regime is made by the director general of the penitentiary administration or his designee, upon the proposal of the director.
The old versions of these articles continue to apply in the general sense and, as a rule, it is therefore the director of the prison who should transmit a proposal to the director general stating:
- the specific circumstances or behaviors of the detainee showing that he poses a continuing threat to security.
- the concrete details of placement in an individual special security regime, with detailed justification for each of the proposed measures.
- A medical opinion regarding the compatibility of the details of the proposed regime with the detainee's health condition.
In principle, the inmate has the opportunity to assert his defenses against the proposal of the prison director during a hearing with the assistance of counsel. It is ultimately the Director General (DG EPI) who makes a decision, which must also be substantiated.
The decision of the Director General may be appealed to the Appeals Commission within 7 days of the decision (Article 118, §10 and Article 165 of the Basic Law).
Special conditions, after law change
For inmates who have ties to organized crime and are suspected or convicted of serving as the leading person of an association active in drug trafficking or a criminal organization, the above rules change.
Thus, an IBVR will not count as an "ultimum remedium" but may be directly imposed by the director general of the penitentiary (DG EPI) upon the advice of the intelligence services or the federal prosecutor.
This regime is also unlimited in time where a renewal every two months is possible. However, the intelligence agencies or the federal prosecutor must issue a new opinion on this every two months.
What does an IBVR mean after the change in the law?
Since the law was amended, a second paragraph has been added to Article 117 of the Basic Law:
"If concrete circumstances indicate that the detainee poses a real and serious risk to security because of his ties to organized crime and he Suspected of or convicted of a violation of article 2bis, § 4, b), of the law of February 24, 1921 On the trafficking of poisons, soporifics and narcotics, psychotropic substances, disinfectants and antiseptics and the substances that can be used for the illegal manufacture of narcotics and psychotropic substances or for the crime referred to in Article 324ter, § 4, of the Criminal Code placement in an individual special security regime may additionally consist of the measures listed below or a combination of several of them:
1° the permanent observation by camera, subject to respect for the human dignity of the detainee and subject to carrying out a regular check, at least during the visits of the doctor referred to in Article 118, § 5, of any effects on mental health.
2° in derogation of article 58, the exclusion of the right to visit and/or the right to undisturbed visitation of all or some of the visitors referred to in Article 59."
In other words, this means that an inmate can be placed directly under an IBVR if it turns out that he:
- has ties to organized crime
- AND is suspected or convicted of serving as a leading person of an association committing violations against the Drug Law OR of a criminal organization
It also tinkered with Article 118 of the Basic Law:
If, as set forth above, an inmate is suspected or convicted of, say, international drug trafficking in association, it is no longer the warden of the prison who transmits a proposal to the warden on which the warden ultimately makes a decision.
Indeed, since the change in the law, the Director General takes a decision for placement in an IBVR, following advice from the federal prosecutor or the intelligence and security services, which does not require special security measures to be taken beforehand.
An appeal to the Appeals Commission against such a decision is still possible, but since the amendment of the law, the Appeals Commission must state the specific reasons why it annuls all or part of the contested decision and must also surround its decision with the particular reasons as to how this decision can be reconciled with the stated security risks. Where appropriate, it shall surround its decision with the particular reasons why it departs from the opinion of the federal prosecutor or the intelligence and security services.
Does the end justify the means?
Is placing a detainee suspected of leading a criminal organization in such a regime consistent with the presumption of innocence (Article 6 ECHR)?
As long as someone has not yet been convicted by a judge, they enjoy the presumption of innocence. But since the change in the law, a single suspicion of "leading person of a criminal organization engaged in international drug trafficking" can be enough to lock someone up in a very strict regime.
In addition, a period in prison entails some form of detention damage anyway. More specifically, scientific research (SYKES, five pains of imprisonment) that deprivations (denial/denial) are inherent in the deprivation of liberty:
- deprivation of liberty
- deprivation of goods and services
- deprivation of heterosexual relationships
- deprivation of autonomy
- deprivation of personal safety
Such deprivations already occur among inmates confined in a "normal" regime.
Detainees placed in an IBVR are hit even harder by such deprivations given that social contacts with the outside world are limited as much as possible. This can have a severe impact on the detainee's mental well-being where the detention damage is only magnified.
However, the Basic Law states in Article **6, §2 that in the execution of the custodial sentence or detention order, avoidable detention damage should be avoided.
The purpose of the law change is to prevent the continuation of criminal activities from prison by the inmate who has alleged ties to organized crime AND is suspected or convicted of serving as a leading person of an association dealing in narcotics OR of a criminal organization.
The question in this case is whether the Attorney General's goal justifies the means (IBVR with minimal contact with outside world + camera observation).
If you have questions regarding measures imposed by the prison administration and/or the warden, you can always contact our criminal justice specialists.
