Committee against Torture

Concluding observations on the fourth periodic report of Belgium *

1.The Committee against Torture considered the fourth periodic report of Belgium at its 1830th and 1831st meetings, held on 15 and 16 July 2021 in virtual format because of the coronavirus disease (COVID-19) pandemic, and adopted the present concluding observations at its 1838th meeting, held on 28 July 2021.

A.Introduction

2.The Committee welcomes the submission of the fourth periodic report of the State party, which is in conformity with the guidelines on the drafting of periodic reports. The Committee appreciates the State party’s willingness to conduct the dialogue in virtual format on account of the administrative measures imposed by the Office of the United Nations High Commissioner for Human Rights in connection with the COVID-19 pandemic.

3.The Committee expresses its appreciation for the constructive dialogue held with the multidisciplinary delegation from the State party and thanks the delegation for the replies and additional information provided.

B.Positive aspects

4.The Committee notes with satisfaction that, since its consideration of the State party’s third periodic report, the State party has acceded to or ratified the following international instruments:

(a)The Optional Protocol to the Convention on the Rights of the Child on a communications procedure, in 2014;

(b)The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, in 2014;

(c)The Convention on the Reduction of Statelessness, in 2014.

5.The Committee also welcomes the following legislative, administrative and institutional measures taken by the State party to give effect to the Convention:

(a)The establishment of the Central Council for the Supervision of Prisons on 24 April 2019, the supervisory commissions in September 2019 and the complaints commissions in October 2020, pursuant to the Act of 12 January 2005 on prison administration and the legal status of prisoners, the Principles Act;

(b)The adoption of the Act of 12 May 2019, which provided for the establishment of the Federal Institute for the Protection and Promotion of Human Rights;

(c)The adoption of the Act of 23 March 2019 on the organization of the prison service and the status of prison staff, which provides for a minimum service in the event of strikes by prison staff;

(d)The adoption of the Act of 6 July 2016, amending the provisions of the Judicial Code on legal aid, and the Act of 21 November 2016 on the rights of persons brought in for questioning, the Salduz II Act, which extends the right to consult a lawyer during questioning in the context of criminal proceedings;

(e)The adoption of the Act of 4 April 2014, amending article 41 of the Police Functions Act of 5 August 1992 in order to ensure that police officers can be identified;

(f)The adoption of the Act of 5 May 2014 on committal, which replaced the Social Protection Act, and the opening of two new forensic psychiatric facilities in Ghent and Antwerp.

C.Principal subjects of concern and recommendations

Pending follow-up issues from the previous reporting cycle

6.In its previous concluding observations, the Committee requested the State party to provide information on its implementation of the Committee’s recommendations on: (a) introducing or strengthening legal safeguards for persons held in custody; (b) establishing an official, centralized register of persons held in police custody; (c) conducting prompt, impartial and effective investigations into cases of excessive use of force by law enforcement officers; and (d) establishing a complaints mechanism in prisons and closed facilities. The recommendations in question are contained in paragraphs 11–14 of the previous concluding observations. While noting the information received from the State party on 21 November 2014 in response to its request, the Committee considers that the recommendations set out in paragraphs 11 and 13 of its previous concluding observations have not yet been fully implemented. Those issues are covered in paragraphs 7, 8, 15 and 16 of the present document.

Police violence and the immediate launch of thorough and impartial investigations

7.The Committee remains concerned by the prevalence of ill-treatment and the excessive use of force by the police, including when restraining prisoners, which have, in some cases, led to the death of the persons apprehended. It also takes note of reports of excessive intervention by the police in public protests, as seen, for example, at the gatherings on 1 April and 1 May 2021 that were banned on account of the pandemic. Bearing in mind the foregoing, the Committee regrets that the State party has not provided specific, aggregated and updated information on the unlawful use of force, given the fragmented nature of the services that oversee police work and the difficulty of determining the number of complaints filed and the number of cases brought before the courts. According to the figures provided in annex 1 of the State party’s report, between 2012 and 2016, only 20 per cent of such cases resulted in prosecution and 59 per cent were dismissed. The Committee is, likewise, concerned by the lightness of the criminal penalties that are imposed and the fact that a very high proportion of the sentences handed down are suspended sentences. It notes with concern that there are gaps in the application of the law on disciplinary action, resulting in the suspension of proceedings and a lack of penalties, even when an offence is found to have occurred. The Committee once more expresses its concern about the ineffectiveness of the inquiries carried out by oversight bodies, in particular the Investigation Service of the Standing Committee for Police Oversight (Committee P), which is made up of full members and members seconded from the police and is responsible not only for inquiries but also for identifying police failings and helping the police to remedy them, a situation that can give rise to a conflict of interests and undermine its impartiality. The Committee also notes with concern that the judicial mechanism known as “autonomous police processing”, which allows the police to conduct a preliminary inquiry through to its conclusion without the involvement of the public prosecutor’s office, has the effect of reducing judicial oversight in such cases. A further source of concern for the Committee is that some police officers are not meeting their obligation to be identifiable and are able to escape prosecution as a result (arts. 2, 12–13 and 16).

8. Recalling the recommendation contained in its previous concluding observations, the Committee calls on the State party to urgently conduct an independent and transparent investigation into the use of ill-treatment and the excessive use of force by the police, with a view to establishing the necessary prevention policies and strengthening internal and external oversight mechanisms. In this connection, the Committee recommends that the State party:

(a) Establish an independent mechanism to enable victims of torture, ill-treatment and unlawful violence to file a complaint more easily, make it a requirement that such complaints are investigated by the State party and ensure that, in practice, complainants are involved in the proceedings to the extent necessary to safeguard their legitimate interests, are informed of the progress of their complaints and are protected from any risk of reprisals;

(b) Promptly and proactively launch independent, thorough, scrupulous and impartial inquiries into all allegations of unlawful violence by the police, ensuring that there is no practical, institutional or hierarchical connection between the investigators and the alleged perpetrators and that the latter, if found guilty, are given sentences that are commensurate with the gravity of their offences;

(c) Ensure, in cases where torture or ill-treatment is alleged to have occurred, that the suspects are immediately suspended from duty for the duration of the inquiry;

(d) Expedite the legislative procedure for the overhaul of the law on disciplinary action and establish a database of previous disciplinary decisions;

(e) Ensure effective oversight of police actions by the public prosecutor ’ s office during inquiries, making sure that whenever injuries consistent with allegations of ill-treatment are recorded during the examination of a detained person, the matter is reported immediately and automatically to the competent prosecutor;

(f) Improve the system for collecting data and registering complaints pertaining to police violence, including when such violence is racially motivated, by ensuring that comprehensive, disaggregated statistical data are gathered on complaints, reports of violence and the excessive use of force, administrative and judicial inquiries, prosecutions, convictions and sentences handed down, decisions to discontinue criminal proceedings and decisions not to prosecute.

Ethnic profiling

9.The Committee is concerned by reports that the police continue to target members of minorities when carrying out identity checks and regrets the lack of data on these checks, since such data could be used to analyse why and how these checks are conducted. However, the Committee notes with interest that the State party is creating a national frame of reference intended to reduce the incidence of arbitrary identity checks and allow for complaints of ethnic profiling to be registered (arts. 2 and 16).

10. The Committee recommends that the State party expedite the establishment of this national frame of reference in order to collect data on the practice of identity checks, the reasons for and the results of such checks and the ethnic origin and sex of the persons who are checked, with the aim of conducting a study into racial profiling, identifying its causes and preventing arbitrary practices.

Police training and supervision

11.While noting the efforts undertaken to train the police in the de-escalation of violence and in communication and stress and conflict management techniques, the Committee observes that there is a need to improve the available training on the use of force and its alternatives, respect for fundamental freedoms, and the obligation to ensure that law enforcement personnel can be identified (see para. 5 (e) above), and also to ensure better supervision of deployed personnel (art. 10).

12. The State party should:

(a) Ensure that all public officials have a good knowledge of the Convention, of the absolute prohibition of torture and ill-treatment and of the penalties that they would face should they fail to meet their obligations in this regard;

(b) Enhance training for the police on the use of force, techniques intended to prevent violence from escalating, respect for fundamental freedoms, including in connection with the filming of police interventions, and the obligation for police officers to identify themselves and explain their actions. The Committee recommends that the State party be guided by the new principles on effective interviewing for investigations and information gathering known as the “ Mendez Principles ” ;

(c) Involve experienced police supervisors more often in the work of operational units;

(d) Devise a method for assessing the effectiveness of training programmes designed to reduce the number of cases of torture and ill-treatment;

(e) Include the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) systematically in all training for police officers, civilians and medical personnel involved in guarding and dealing with individuals who are arrested, detained or imprisoned.

Regulation of police activity

13.The Committee is concerned about the police’s restraint of persons in the prone position, also referred to as ventral decubitus, a technique that caused the death of Jozef Chovanec in February 2018. It notes with concern the excessive use of equipment such as water cannons, tear gas and batons to break up protests and the use of high-calibre weapons (art. 2).

14. The State party should consider completely banning ventral decubitus or, alternatively, adopting strict regulations on appropriate restraint techniques and the use of equipment and weapons during gatherings and in the event of a terrorist threat; in doing so, it should emphasize the absolute prohibition of torture and ill-treatment and explain the need to evaluate the use of coercive measures, equipment and weapons based on the potential risks involved and the inadequacy of other, less restrictive measures, in accordance with the Convention and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

Fundamental legal safeguards

15.The Committee welcomes the fact that the right to have access to a lawyer has been extended under the Salduz II Act (see para. 5 (d) above) but is concerned about reports that this right is still not upheld in practice. According to article 47 bis of the Code of Criminal Procedure, the hearing may begin before the lawyer’s arrival, even though this could be challenged as a violation of the right of defence. The Committee also regrets that persons under administrative arrest are not entitled to a lawyer, since the presence of counsel is a fundamental safeguard against ill-treatment by the police (arts. 2 and 11).

16. The Committee recommends that the State party adopt the necessary legislative and other measures to ensure that the scope of the right of access to a lawyer is extended to all forms of deprivation of liberty, including administrative arrest, and is always respected from the outset of deprivation of liberty.

Conditions of detention

17.Despite the increase in prison capacity and a reduction in the overcrowding rate to 10.66 per cent in 2020, following the measures taken in the context of the COVID-19 pandemic, the Committee notes with concern that overcrowding persists, with wide variations between prisons. According to the information received, this can be explained by, inter alia: (a) the increase in the number of persons in pretrial detention, who account for approximately 37 per cent of the prison population; (b) the aggregating and lengthening of sentences; (c) the use of electronic monitoring only as an alternative to parole and not as an alternative to pretrial detention; and (d) the limited and delayed use of parole and the lack of other non-custodial alternatives, such as a mechanism for the release of older prisoners who are nearing the end of their sentences. While noting the State party’s efforts to renovate old prisons and to encourage alternatives to imprisonment and pretrial detention, the Committee deplores the dilapidated state of prisons, which results in unhealthy detention conditions, infestations, mould, a lack of showers and toilets and a lack of appropriate food (arts. 2 and 16).

18. The Committee recalls the recommendations made in its previous concluding observations and urges the State party to:

(a) Take into account the lessons learned from the COVID-19 pandemic and intensify its efforts to significantly reduce prison overcrowding, by trying to limit prison admissions and making greater use of non-custodial measures, such as parole and early release, in accordance with the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules);

(b) Continue its efforts to assess the use of pretrial detention, with a view to revising the regulations governing such detention and adopting the necessary measures, including with respect to training for judges, to ensure that pretrial detention is imposed only exceptionally and for limited periods, and to promote the use of alternatives to pretrial detention, such as electronic monitoring;

(c) Continue the reform of criminal law and procedure with a view to ensuring that prison sentences are imposed only as a last resort;

(d) Bring prison conditions into line with the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and the European Prison Rules adopted by the Council of Europe;

(e) Ratify the Optional Protocol to the Convention as soon as possible, in order that the State party can establish or designate a national mechanism for the prevention of torture.

Access to health care for persons deprived of their liberty

19.The Committee notes with concern the insufficient health care and the scarcity of trained and specialized medical personnel in prisons; the poor quality of dental care; and the lack of independence of health-care providers, who are involved in prisoner disciplinary procedures. Given that overcrowding is a factor that contributes to the poor mental health of prisoners, the Committee is concerned about the inadequate provision of psychiatric care, the high suicide rate and the insufficient support afforded to prisoners with suicidal tendencies (arts. 2, 11 and 16).

20. The Committee requests the State party to adopt the necessary implementing orders and measures to ensure that prisoners enjoy their right to health care at a level equivalent to the level of health care enjoyed in society (art. 88 of the Principles Act). To that end, the State party should:

(a) Increase the provision of medical, psychiatric and dental care in prisons and the availability of specialized and trained health personnel, and facilitate access to outside services;

(b) Ensure better coordination in the communication of profiles of at-risk inmates or inmates with suicidal tendencies and ensure that they receive adequate treatment and support in an appropriate medical facility;

(c) Guarantee the clinical independence of medical staff by placing them under the authority of the Minister of Public Health and by ensuring that they are not involved in imposing disciplinary sanctions on prisoners.

Strip searches

21.While noting that a strip search may be carried out only on the basis of a reasoned decision made by the prison director when he or she believes there are indications that a pat-down search is not sufficient, the Committee remains concerned about the Federal Ombudsman’s finding in 2019 that strip searches are routinely carried out at the entrance to prisons on prisoners coming from outside and when they are placed in solitary confinement and that, in some prisons, strip searches are conducted at random, sometimes on several inmates at the same time. The Committee notes that the State party is in the process of taking action on the recommendations of the Federal Ombudsman (arts. 11 and 16).

22. The Committee recommends that the State party take action on the Federal Ombudsman ’ s recommendations on strip searches as soon as possible and that it ensure strict monitoring of compliance with the established rules. The State party should ensure that strip searches are conducted only when strictly necessary, based on a concrete individual assessment and proportionate to the aim pursued and that, where they are unavoidable, they are conducted with respect for prisoners ’ dignity.

Counter-terrorism

23.The Committee notes with concern the adoption of new investigative methods in the case of terrorist offences, such as the possibility of conducting searches at any time of day or night and the use of civilian infiltration. It also notes with concern the use of the vaguely defined concept of radicalization to: (a) manage terrorist threats preventively through exceptional measures; and (b) place “radicalized” prisoners under a security regime or in “D-Rad:Ex” (deradicalization) wings, subject to considerable restrictions, without a hearing or the opportunity to seek a review of the decision. Although some disengagement programmes exist, no specialized, individualized deradicalization programmes are systematically implemented and the placement of prisoners under a security regime makes disengagement difficult (arts. 2, 11 and 16).

24. The State party should:

(a) Conduct a parliamentary assessment of counter-terrorism legislation and practice from a human rights perspective, as recommended by the Human Rights Committee;

(b) Ensure that decisions to impose security measures or regimes on prisoners are based on an individual assessment, involving clear and objective criteria, including the actual behaviour of the person concerned; are supported by credible, factual, comprehensive and up-to-date information that demonstrates that the measure is necessary and proportionate; and are subject to a periodic review by an independent and impartial body in which the prisoner may participate meaningfully in order to challenge the measure or regime imposed;

(c) Ensure that the conditions in which persons suspected of terrorism are detained are in line with the Nelson Mandela Rules, in particular concerning solitary confinement and contact with the outside world;

(d) Introduce mandatory, systematic and individualized deradicalization programmes for prisoners, managed by prisoner support services.

Non-refoulement

25.The Committee notes with concern the lack of precision in national law regarding the criteria for “safe” third countries, especially given that the list of safe countries is established by royal decree after an in abstracto analysis of a country’s level of safety and regardless of the COVID-19 health situation. It is also concerned that the clauses allowing for the denial or withdrawal of refugee status or subsidiary protection when the refugee is considered a danger to national security are drafted using vague language. The Committee notes that these clauses and the list of safe countries do not prevent the foreigner concerned from applying for international protection on the grounds that he or she is at risk of being subjected to torture in his or her country of origin, although the burden of proof is heavier for the applicant in such cases. The Committee is also concerned about the fact that it is not possible to lodge a suspensive appeal against deportation decisions with the Aliens Litigation Council, although the persons concerned may request that the execution of the measure be suspended as a matter of extreme urgency. Lastly, the Committee remains concerned at reports that the State party continues to extradite persons on the basis of diplomatic assurances and to remove persons to countries in conflict when there is a high risk that the extradited or returned persons will be subjected to torture or ill-treatment. However, the Committee was interested to learn that an independent commission has been set up to overhaul the 1980 Act on entry to Belgian territory, temporary and permanent residence and removal of aliens, the Aliens Act (art. 3).

26. The Committee recommends that the State party take the legislative and other measures necessary to ensure that:

(a) All foreign nationals at risk of deportation, including those from “ safe countries of origin ” , have access to fair procedures, including an interview to assess the risk that they may be subjected to torture and ill-treatment in their country of origin, in view of their personal circumstances;

(b) Exclusion and withdrawal clauses relating to the status of refugees are applied only when there are serious reasons to believe that a refugee may have been involved in an act to which such clauses would apply and only after a full assessment of the individual circumstances of the case, including the risk of torture in the country of origin;

(c) All foreign nationals at risk of deportation are able to seek an individual review of the deportation decision, with automatic suspensive effect;

(d) The State party will refrain from seeking and accepting diplomatic assurances, in the context of both extradition and deportation, from States where there are any grounds for believing that a person would be at risk of torture or ill-treatment upon return;

(e) The State party will refrain from deporting foreigners to countries of origin in which the presence of armed conflict with widespread civilian casualties and the absence of the rule of law, in practice, strongly indicate that they would be subjected to torture or ill-treatment upon their return.

Deportation

27.The Committee remains concerned about the lack of impartiality of the Inspectorate General of the Federal and Local Police, which is composed of officers recruited by the local or federal police. In view of the high number of forced returns, the Committee remains concerned that the Inspectorate General lacks the human and financial resources to carry out its mandate and that its forced return unit, in particular, is understaffed, and regrets that the State party continues to consider the use of video in this context inappropriate (art. 3).

28. The Committee reiterates the recommendations made in its previous concluding observations and requests the State party to expedite the parliament ’ s consideration of the bill on the establishment of a standing committee to monitor the implementation of the policy on deportation. It also recommends that the State party ensure the independent monitoring of forced returns, with adequate human and financial resources and an objective surveillance system whereby each attempted return that is subject to surveillance is recorded on video.

Detention of virtually all applicants for international protection at the border

29.Although the State party explained that minors and their families are not detained at the border, the Committee remains concerned that almost all other applicants for international protection are detained, under article 74/5 of the Aliens Act, and that this practice is accepted by the Constitutional Court, which considers it necessary for effective border control (decision of 25 February 2021). However, the Committee notes that article 74/5 of the Aliens Act is intended to transpose into national law Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013, which allows for the detention of applicants only when it proves necessary and on the basis of an individual assessment of each case, if other less coercive measures cannot be applied effectively. The Committee also recalls that the European Court of Human Rights considered the practice of automatic detention at borders in the case Thimothawes v. Belgium and ruled that the routine detention of asylum seekers without an individual assessment of their specific needs was problematic (arts. 11 and 16).

30. The Committee encourages the State party to take into account the following recommendations when amending the Aliens Act as announced during the dialogue:

(a) The State party should refrain from placing applicants for international protection in detention at the border and should provide alternatives to detention, including by adopting the royal decree mentioned in the Aliens Act. The State party should use detention only in exceptional circumstances and as a last resort, on the basis of an individual assessment of each case and if other less coercive measures cannot be applied effectively;

(b) The State party should take measures to ensure that applicants for international protection with specific needs, especially victims of torture and ill-treatment, are identified at the border. The State party should ensure, in particular, that all applicants for international protection, including those whose applications are processed under the accelerated procedure, can be screened for signs of trauma upon arrival, through medical check-ups and examinations carried out by independent and qualified professionals, with the support of interpreters where necessary.

Repatriation of children from conflict zones

31.The Committee welcomes the Government’s recent commitment to repatriate all children under 12 years old born to Belgian nationals and the repatriation, immediately after the dialogue with the Committee, of 6 women and 10 Belgian children under 12 years old from the Syrian Arab Republic. However, the Committee remains concerned about the situation of the other children under 18 years old and their mothers who are being held in camps in the north-east of the Syrian Arab Republic in inhuman and degrading conditions and without access to legal safeguards, an effective remedy or a fair trial (arts. 2 and 5).

32. The State party should facilitate the repatriation from conflict zones of all children born to Belgian nationals, together with their mothers, with due regard for the principle of the best interests of the child, and should assist with the reintegration of the persons concerned and facilitate their access to rehabilitation services upon repatriation.

Application of the Convention by domestic courts

33.The Committee is concerned that there is no provision in domestic law establishing the direct applicability of international treaties and that it is for the courts to decide whether a provision of the Convention is directly applicable (arts. 2, 4, 10 and 12–13).

34. The Committee recommends that the State party should ensure that the provisions of the Convention are fully applicable within its domestic legal system. The State party should provide training to law enforcement officers and members of the judiciary on the content of the Convention and its direct applicability.

Definition of torture

35.The Committee regrets that the State party has not yet amended article 417 bis of the Criminal Code on the definition of torture, despite the recommendations made by the Committee in its previous concluding observations (arts. 1 and 4).

36. With reference to the commitment made recently by the State party during the universal periodic review, the Committee requests the State party, as a matter of priority, to amend article 417 bis of the Criminal Code in order to incorporate into the legal definition of torture all the elements contained in article 1 of the Convention, including acts of torture motivated by discrimination of any kind.

Inadmissibility of evidence obtained through torture

37.While noting that, according to the delegation, there are plans to make some changes, the Committee regrets that, despite the recommendation made in its previous concluding observations, the State party has not yet amended its Code of Criminal Procedure to include a provision on the inadmissibility of evidence obtained through torture (art. 15).

38. The Committee urges the State party to amend its legislation in order to ensure that any statement or evidence obtained through torture or ill-treatment cannot be used or cited as evidence in any proceedings, except as evidence against the person accused of torture.

Measures of redress and compensation for victims of torture or ill-treatment

39.Recalling the recommendation made in its previous concluding observations, the Committee regrets that the State party does not have databases containing comprehensive and up-to-date information on the number of claims for compensation submitted by victims of ill-treatment and the amounts awarded in such cases. It also regrets the lack of rehabilitation programmes that are accessible to all victims of torture and ill-treatment, including asylum seekers, refugees and persons deprived of their liberty (art. 14).

40.The Committee recommends that the State party take the necessary legislative measures to ensure that victims of acts of torture or ill-treatment committed in the State party or abroad obtain full and effective redress, including means of rehabilitation and care specifically tailored to their needs. The Committee draws the attention of the State party to general comment No. 3 (2012), in which the Committee explains the content and scope of the obligation of States parties to provide full redress to victims of torture. The State party should compile and provide to the Committee information on redress and on compensation measures, including means of rehabilitation, ordered by the courts or other State bodies and actually provided to victims of torture or ill-treatment.

Follow-up procedure

41. The Committee requests the State party to provide, by 30 July 2022, information on follow-up to the Committee ’ s recommendations on the ratification of the Optional Protocol to the Convention, the principle of non-refoulement and the repatriation of children and their mothers from conflict zones (see paras. 18 (e), 26 and 32 above). In that context, the State party is invited to inform the Committee about its plans for implementing, within the coming reporting period, some or all of the remaining recommendations in the concluding observations.

Other issues

42. The Committee invites the State party to consider ratifying the core United Nations human rights treaties to which it is not yet party.

43. The State party is requested to disseminate widely the report submitted to the Committee and the present concluding observations, in appropriate languages, through official websites, the media and non-governmental organizations and to inform the Committee about its disseminating activities.

44.The Committee requests the State party to submit its next periodic report, which will be its fifth, by 30 July 2025. To that end, and in view of the fact that the State party has agreed to report to the Committee under the simplified reporting procedure, the Committee will, in due course, transmit to the State party a list of issues prior to reporting. The State party ’ s replies to that list of issues will constitute its fifth periodic report under article 19 of the Convention.