Proposition 52K2122

Projet de loi modifiant la loi de principes du 12 janvier 2005 concernant l'administration pénitentiaire ainsi que le statut juridique des détenus.

General information ¶

Submitted by

CD&V the Van Rompuy government

Submission date

July 16, 2009

Official page

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Status

Adopted

Requirement

Simple

Subjects

prisoner criminal law disciplinary proceedings

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld N-VA LDD MR

Abstained from voting

FN VB

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Discussion ¶

Jan. 28, 2010 | Plenary session (Chamber of representatives)

Full source

The [...]

My oral report will be very brief. I am not used to reading.

This bill has a limited but important scope. It’s about improving the law of principles on the legal status of detainees – this famous law for the execution of which we still expect many royal orders.

Without waiting for the different entries into force, the minister, fortunately, took the initiative to make some corrections highly anticipated by the prison world, in particular in terms of the disciplinary regime of detainees. I also think about how non-profit activities take place in prisons. As you’ll see in the text, it’s really about seeing when inmates can work or volunteer and how and when inmates under strict disciplinary regime can participate in collective activities – recreational or lucrative – or even practice certain cults or engage in philosophical and non-confessional activities.

Although interesting, the debate was limited in committees, due to the scope of the project itself. An amendment was submitted on how to practice a worship or philosophical and non-confessional activities in common. The legislation is not amended in this regard, since it is the director who will decide, on a case-by-case basis, whether the detained in strict disciplinary regime will be able to participate or not.

For the rest, some amendments have been submitted. But I will leave to their authors the paternity of their speech to develop them.

Finally, Ms. Carina Van Cauter submitted a joint proposal, which did not address the object of the project, since it concerned the minimum service in prison.

Thank you, hoping it wasn’t too long.

Mrs. Speaker, Mr. Minister, colleagues, I have come to the speaker’s floor to say that we support this draft. In fact, it brings a number of punctual improvements to the Basic Law on detainees. The text is also better aligned with the penitentiary reality and the practical organization within the penitentiary institutions. A criticism that has been formulated several times had to do with the time when the law would come into force. This is another step forward. Thanks to these adjustments, another aspect will be able to come into effect. That is a good thing.

I am not just here to tell you that. You have already heard this in the committee. I would also like to remind you of your promise. In the committee you said that within two months – I thought it was January 12 – you would come up with a proposal discussed with your colleagues on the minimum service in prisons. So I come here to keep your promise.

Yesterday afternoon I could not be present in the committee but I read that the discussion has begun. The Security Working Group has been effectively launched. One looks at the working conditions of the prison guards and, on the other hand, the living conditions of the detainees. This is actually the basis of the many problems we know in prisons. Something needs to be done urgently and structurally. We are going to look at what can be done faster to guarantee safety. That is a first aspect.

I also see that Committee P will formulate an opinion on the correct distinction between, on the one hand, the police services and, on the other hand, the duties of you, Mr. Minister, and the prison staff. A clear line must be drawn effectively. The report on ten years of police reform also shows that today the police have to engage too much in improper tasks. If one has to permanently take over the surveillance in a prison, 24 hours a day, then we are no longer talking about order-keeping and intervention in certain calamities, something for which the police will ⁇ have to keep its mandate. However, there must be a clear delimitation. I also read that they continue to work.

Finally, I read that the working group between Justice and Home Affairs has been restarted. I read then, and then I was a little disappointed, a slightly weakened response from you.

However, I keep your word, given during the discussion of this draft, that you would return to the committee with a proposal regarding the minimum service or if you prefer to call it conflict management. However, it will need to be more than negotiating and looking at how to address the problems. Everyone has responsibility. If problems arise, they must be addressed by the people who have been commissioned to do so.

We have submitted two amendments. I will explain one of them, in particular the amendment to Article 12.

I have also commented on this in the committee. Article 12 modifies the period within which the detainee can be heard when provisional measures are taken in prison. That period is now 72 hours, while that was originally, in the current law, 24 hours. The law also stipulates that the decision of the director takes place within 24 hours.

This means that the provisional measure can last four days, while now the detainee must be heard within 24 hours. That is problematic. On the one hand, we understand very well that a 24-hour deadline is very tight. Anyone who has dealt with such matters, disciplinary matters in prison, knows that 24 hours is actually very short to submit the file and so on. 72 hours is too long. It is ⁇ too long when deep, serious provisional measures are imposed, such as, for example, lonely imprisonment, the cachot.

Therefore, we propose to extend this 24-hour period not to 72 hours, but to 48 hours. It should be perfectly possible to prepare a report within 48 hours, call the lawyers and organise a hearing.

That is why we submit this short amendment to reduce the 72 hour period to 48 hours. This ensures a balance between rights and duties, but also guarantees the rights of the defence. On the other hand, it prevents preliminary measures from lasting too long, especially those that are very extensive.

As my colleague pointed out, we have submitted two amendments and I will explain the second.

First, I will recall our commitment to support the project we voted for: for us, this is an important step forward. Whenever the Minister submits such proposals, he can count on our support, because we want the law of principles to move forward and move forward with big steps.

The amendment we want to introduce would avoid some misunderstandings. It relates to Article 4 where the terms "the personality of the detainee" are mentioned.

Mr. Minister, as you know, these terms are too vague and would give prison directors a far too wide discretion. In this regard, it may even be feared that camouflaged sanctions will be taken through this.

In any case, in the present case, it is not so much the personality of the detainees, a very controversial notion and also likely to be appreciated in a subjective way, that must be in question, but his behavior or what is contained in his dossier concerning his behavior. We simply want to clarify things and that instead of considering the too vague notion of “personality,” allowing directors to make controversial decisions, we should choose as the basis of decisions either the behavior or the background of the detainee.

The change is not major, but is a simple precision to get out of the blur that the term "personality" can induce.

I will answer the whole, including the amendments.

It is important that this draft is approved because it is indeed a step in the evolution towards the further implementation of the Law of Principles which I also consider very important. There are still many steps to be taken to reach full implementation. Yesterday we held an extensive debate in the Justice Committee on the basis of some questions asked about the detention path, the detention plan. So I think this is important.

After the Crocus vacation, hopefully, the debate will be held on the note penalty enforcement policy, where it will be possible to return to the global strategy, in order to make the law fully enforceable. It is not so simple.

With the present draft, we take a step so that a number of smaller but important points that caused annoyance and practical problems can be solved.

I would like to express my thanks for the good discussion in the committee and also for a positive vote, later on.

The amendments, I thought, have already been included. In this context, I refer to the excellent report referred to by the rapporteur.

The words “24 hours” are replaced by the words “48 hours”. We exchanged opinions on this. Currently, a 24-hour period is applied, but that does not work. Therefore, the Directive aims to apply a period of 48 hours in order to make it feasible. That is also the limit. That is why we want to go to 72 hours.

The period within which the decision should be taken should be shorter. There is a shortening of the deadline. This is to seek the feasibility. Of course, it is not at all intended to organize abnormal delays. The issue is that this must be dealt with in the most efficient but realistic way in the light of the functioning of a prison. It is therefore, in my opinion, reasonable that the period of 24 hours is changed to 72 hours.

I now come to the amendment by Mr Lahssaini.

I also answered the questions of Mr. of Lahssaini. He mentioned an article concerning the personality of the detainee replaced by ... my text is unreadable. Which article is it exactly?

According to Article 4...

In my opinion, the personality — la personnalité — may have a classical, broad meaning that is ⁇ useful. Replacing the words “la personnalité” with the words “le comportement” or “les antécédents” has been narrowed.

I try to re-read the text of Article 4: “When the personality of the detainee constitutes a contra-indication for the granting of an uninterrupted visit ...”

The award is therefore not so much based on “le comportement” or “les antécédents”. It happens on the basis of everything together, from the personality. If one, in all honesty, considers with respect to a person that the granting of an uninterrupted visit — “l’octroi de la visite dans l’intimité” — ...

What does this mean? What behavior do you want to depend on the possibility of having a visit in privacy? According to what antecedents? It is quite delicate! I prefer to keep the notion of "personality" of the detainee, which is a more general notion, which leaves the possibility to judge in a complete way on the decision to be made. I would rather keep the text as it is and reject this amendment.

Mr. Minister, precisely, the term “personality” is much too general and even much too vague. If you stick to the behavior and the file of the detainee, what are the elements that allow to take restrictive measures and deprive him of this visit? If we hold on to the personality, what are the holders and the enders? I spent many years on the banks of the university trying to understand when personality traits stop. This exercise is difficult not to say dangerous!

I would like to reiterate that I prefer a general concept. If, on the contrary, you say that a judgment based on the background is preferable, I will ask you on the basis of which background you will judge that granting the visit in privacy is contraindicated. It is quite indecent to look for backgrounds in order not to grant such a visit. This judgment is, in my opinion, at least delicate.

Mr. Minister, I think that if we refer to the file of the instruction, which would mention contraindications, either due to violence, difficulties in relationship with women, these are elements that can inform us about a part of the personality. But when we talk about the personality in its entirety, we risk punishing people who are entitled to this visit. What does “their personality” mean? I do not know him. What is your personality? What is my personality? What are the elements that can be indicators or contraindications for this type of visit?

Personally, I prefer to stick to concrete facts. Either the person shows behaviors, which can be contraindications for this type of visit, or his dossier contains elements that drive us to be vigilant in this matter.

For me, one goes beyond interpretation and it is undermining the freedom of persons.

No one is perfect and in prisons everyone has a personality that can pose problems. If one adheres to this notion of personality, one gives the green light to the director to refuge behind it whenever he wants to apply a penalty.

I understand you, but we unanimously voted this article in the committee where this debate did not take place. I do not believe that a change will move things forward. So I defend this notion of “personality” rather than saying that the director must judge on the background of someone who wants to live a little bit of privacy.

I cannot follow the Minister’s reasoning. There is a debate in the committee, but also in the plenary session. We can still have this discussion here. In my view, it is quite legitimate to address a topic that was not able to be dealt with in a committee.

On the other hand, we will not be able to convince ourselves. However, as I said recently, we support this project as a whole and we will continue to support it; however, it is important to pay attention to things that, instead of providing solutions, could create problems. That is all!

Your opinion is clear, Mr Lahssaini!