Proposition 53K1796

Projet de loi relatif à l'application du principe de reconnaissance mutuelle aux peines ou mesures privatives de liberté prononcées dans un Etat membre de l'Union européenne.

General information ¶

Submitted by

CD&V Leterme Ⅱ

Submission date

Oct. 12, 2011

Official page

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Status

Adopted

Requirement

Simple

Subjects

Eurojust European arrest warrant European Union imprisonment framework decision transfer of prisoners criminal law

Voting ¶

Voted to adopt

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

Abstained from voting

Groen Ecolo

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Discussion ¶

Dec. 1, 2011 | Plenary session (Chamber of representatives)

Full source

This proposal relates to the implementation of two framework decisions of the European Council.

The first Framework Decision is Framework Decision 2008/909/JHA on the application of the principle of mutual recognition of criminal judgments imposing imprisonment or detention measures for the purpose of their enforcement in the European Union.

The second Framework Decision is Framework Decision 2009/299/JHA on strengthening the procedural rights of persons and promoting the application of the principle of mutual recognition to decisions made in respect of persons who did not appear at the trial.

Colleagues, the Government has chosen to adopt a specific law replacing some of the provisions of the Act of 23 May 1990. However, the system of the Act of 1990 remains to be applied in relation to the relations between Belgium and third countries with which an agreement or a treaty was concluded, I think, for example, of Morocco.

The added value of the current instruments is that the reasons for refusal by the receiving state and the convicted are limited. In practice, it will be possible to work without prior agreement in the following cases. There shall no longer be grounds for refusal if the convicted person has the nationality of the receiving State and has his place of residence there, or if the convicted person is a national of that State and will be extradited there after his sentence. The draft law provides for a comprehensive legal framework, establishes the competent authorities and sets the implementation deadlines to speed up the procedure.

There has been a fairly extensive discussion in the committee, including on enforceability, the impact on the prison population, the application of the Convention when it comes to minors and the rights of victims.

The debate included the legal system applicable to the execution of penalties, and what if there are differences between Member States in terms of penalties and methods of execution of penalties.

The draft law was amended with a view to the application of the so-called Salduz legislation, which, as the minister stressed, is not applicable, as it concerns the period following the final conviction. Consequently, the classical rights to consult an attorney and to receive assistance from an attorney apply, as regulated in the general legal system applicable to detainees.

However, the draft was amended to refine the right of access to a lawyer. This is proposed in Article 33, § 4.

The bill was adopted after amendments and legislative technical improvements with 9 votes for and 2 abstentions. Until then the report.

Mr. Speaker, Mr. Minister, Ladies and Gentlemen, this proposal has three merits. First, the mutual recognition of judgments so that the exequatur procedure will no longer be needed. Second, the expansion of the possibilities to have a prison sentence or internment endured in the EU country of origin. Third, the uniformization of the grounds for refusal.

The design is an important step forward and therefore enjoys the support of Open Vld, although there is still a lot of work to be done at this point. Unfortunately, crime has fewer and fewer boundaries, so a greater European harmonisation is also needed in its address.

During the debates in the Justice Committee, the question arose whether this is a means to counter the overpopulation. You have given us the numbers, Mr. Minister. The figures show that we cannot really call this a means to counter the overpopulation in our prisons, unfortunately.

Four hundred and fifty-five prisoners are eligible to be transferred to their country of origin in Europe to serve their sentences there. Furthermore, 321 Belgians have made themselves known – the group is likely to be larger – at the embassy, so that one can know that there is a Belgian in the prison of a EU country; 321 Belgians are eligible to come to us for a sentence from another European prison. That is a difference of a hundred. All bites help, of course, but we cannot call this the miracle remedy.

The discussion also revealed that mutual capacity, recognition and respect between Member States will be of great importance for the implementation of this important text. We hope that the European Commission will strictly monitor the implementation.

Finally, I have two comments on this text.

First, I would like to refer to the study conducted under the leadership of Professor Vermeulen of the UGent on behalf of the European Commission, in which it was decided that a number of accompanying measures will be necessary for that applicability, given the large differences between European prison regimes.

I think it is also an interesting study for us in Belgium to see where we stand with the different applications within our prisons.

It is the responsibility of Europe to ensure that these accompanying measures are implemented.

The second and last point is about the victims. I have asked you the question, Mr. Minister, in the committee. What about the victims of convicts who in the future will no longer be in our prisons, but in their country of origin, which is a European Member State? Will they be further informed through the criminal enforcement courts as we do now? Victims are informed about the execution of the punishment of the perpetrator. This is the first point of attention.

The second focus is the compensation that can be owed to victims and which is often difficult to claim. Fortunately, there is a fund for victims of intentional violent acts. This compensation will also need to be monitored. It cannot be that victims are less easily compensated because the perpetrator is no longer in a Belgian prison but lives in another prison in the EU.

Then I come to my conclusion. The Open Vld supports this text.

We have thoroughly examined the present draft in the committee. It is the transposition of two directives. Belgium was a little too late with the conversion. We note that, in particular, the directive itself is already somewhat dated.

In the course of the discussion we have been able to conclude, as we received additional information, including from the study of Professor Vermeulen, which was already mentioned, that the directive does not regulate a lot of matters in order to make some things operational. The study by Professor Vermeulen, which compares prison systems and detention systems in twenty-four European countries, dates from 2011 and is therefore very recent. However, the framework directives are already three years old. They were not adjusted to the results of the study.

Mrs Reding herself, the responsible European Commissioner for Justice, has been concerned at some point and has taken two initiatives. First, she asked to do such a comparative study. Second, the Commission has drafted a Green Paper, which will normally be published by the end of this year.

Initially, the intention was apparently to wait for the results of both studies in order to eventually adapt the Framework Directive. Ultimately, however, it was decided to move forward, not to adjust the Framework Directive and not to take into account some analysis results. That is very unfortunate, because in the end we identified a number of problems in the legislation.

First, the purpose of the transfer must, of course, be to promote reintegration, which is also the objective of the Directive. If the transfer does not increase the chances of reintegration, it also makes no sense. Indeed, it is clear that the purpose of the Directive is not to allow for rapid transfer of prisoners in order to address overcrowding in a prison. The aim is to promote the opportunities for reintegration of Europeans by allowing them to spend their imprisonment in their country of origin.

Remarkable in the study conducted by Professor Vermeulen is that only half of the Member States have rules to impose an individual detention plan. We have similar rules in Belgium. However, if only half of the countries surveyed have them, we may ask ourselves whether a transfer of detainees to other countries meets the goal of increasing the chances of reintegration.

The second problem is the often understated conditions of detention in prisons in almost all European Member States. European and international standards are often not met. The study shows the following. Of the twenty-four Member States examined, a sort of ranking was established. First came Finland. The second place was Slovakia, which may be surprising. Estonia was in third place and Hungary in fourth. So it is Eastern European countries that are quite high in the ranking. In the fifth place came Germany. Per ⁇ to our great surprise, Belgium was in sixth place.

Even the minister was a little scared by the good scores our prisons have achieved. According to the international study, we would meet 80% of the international standards, much better than, for example, the Netherlands, which comes in 19th place.

However, we should not crave euphoria too quickly, because it was a theoretical analysis. Belgium’s sixth place in the ranking was obtained on the basis of current legislation, not on the basis of practice.

We have the legal arsenal in our country to enable normal detention conditions. Now we just need to try to make it possible in practice. If we are in the sixth place and detainees are transferred from a Belgian prison to other European prisons, then it is most likely that those detainees will be captured or imprisoned in worse conditions.

A third problem is the lack of equivalence between the penalty and the implementation standards. We have discussed this issue in the committee for a long time. That turns out to be a pain point that we cannot solve ourselves in the current legislation because it is clearly European in nature.

The question is how we can equate prison sentences or punishments tout court that exist in a given country but are not known in other countries. For example, if a person in a given country receives home detention for one, two or three years, while that in Belgium does not exist yet, how should that then be implemented? Will it be a prison sentence and if so, for how long? Such equivalence tables or equations do not exist, resulting in large differences. For example, the system of government disposal, which applies in Belgium, but that other countries often do not know. How many other countries will implement it?

In my view, the Directive has not been sufficiently framed and research has not been conducted sufficiently to address the practical problems that will at least arise.

A fourth problem, finally, is the different methods of punishment enforcement. In one country, the execution of penalties is stricter than in another country. In Belgium, it is possible to be released after serving one-third of the sentence. For those who are transferred to a country where possible release is only possible after two-thirds of the sentence, in practice this automatically means almost a doubling of the execution of the sentence. Reverse can also be, when someone from a country with a much stricter regime comes to Belgium, where he can be released after a third of his sentence, while that was not possible in the original country. Europe has paid little attention to this.

In some countries, there are incomprehensible penalties. In Belgium, this still does not exist, and I have understood, after yesterday’s agreement, that this will not happen in the future.

There can also be a problem there, because one country knows it and the other does not. In the execution of punishment there are ultimately differences with punishment liability or punishment relief resulting.

Our conclusion is that there are many gaps in the draft European Framework Directive, which will give rise to a lot of practical implementation decisions. For these reasons, we abstained from voting in the committee, although we recognize that there are positive elements in the whole legislation. However, these pain points must be complained. We are not throwing a stone at the minister, but Europe should have better done its homework before the European Member States could transpose something into national legislation.

Mr. Speaker, Mr. Ministers, colleagues, with the mere content of this bill, we have absolutely no problems. The effective execution of penalties and the imposition of security measures in the European context will be easier and less bound to interstate formalities, even in the case of detention judgments and dismissal of minors aged 16 to 18 years. We find that positive. National sovereignty is also respected. We also find this positive.

Indeed, the exceptions to the principle of the necessary consent of the convicted person to his transfer do not go far enough for us, but we can live with that.

I approach what the previous speaker said from a completely different perspective. In theory, it is beautiful, but whether the execution of punishments in Belgium will be more efficient and more consistent, is still the question. I think the answer is: no. Mr. Minister, you have said in the committee that the prisons in construction are an urgent problem. We have also pointed to you in the last legislature the laxity in the liberation policy. This may be the last time, because you are probably a departing minister. Sometimes one is lax out of necessity, because there is too little prison capacity. In any case, we think that Belgium can currently not provide sufficient guarantees on the proper implementation of what, according to Europe, must be entered in our legislation.

Furthermore, sanctions are not provided if the penalties are not properly executed and if the Member States fail to comply with their obligations. That can only lead to a paper tap on the fingers. Hopefully, some Member States will not struggle and develop their own sanctions scheme – which would make it all more difficult again – if it turns out that Belgium is running too smoothly with conditional release statements and the like. The latter may occur as a result of the immense shortage of cell capacity and as a result of the law on the internal legal status of detainees.

The study delivered by Professor Vermeulen on behalf of the European Commission – which says that Belgium scores 80 % in compliance with international standards in the field of prison administration, and that Belgium is sixth on the list of Member States – proves that there is really a lot of attention, and want to pay, to the convicted, to the detained. All well and well, but the citizen on the street notices little of it when another released criminal commits an act.

The only obstacle to the proper implementation of this law, based on a European treaty, is the Belgian Justice itself.

By the way, in terms of transposition of European directives and related standards, Belgium scores extremely poorly. In this respect, we can be equally happy. From the figures presented yesterday by Secretary of State Chastel in a thinly populated committee, my colleague De Bont learned that the transposition of European legal norms into Belgian law is very backward. In this regard, you can put yourself a plum on the hat, Mr. Minister. From our perspective, this is a low comfort. In addition, the Greens have pushed this bill with an approved amendment in extremis even further into the Salduzpekel. So we are not really enthusiastic about approving it.

I cannot fail to point out another and much more pressing priority that is not within the scope of the current discussions, in particular the overwhelming majority of new Belgians from outside the EU who are in our prisons. On a treaty and interstate level, everything is missing. We remain with that burden due to this fast-Belg-law.

What we approve today is an additional step in terms of punishment enforcement. Hopefully it is not a sponge with a suction effect because of the Belgian laxity. In any case, the crane remains open and not even a little. Nothing is done about it. We will reiterate with conviction.

Mr. Speaker, I would like to thank the rapporteur and the parliamentarians who spoke for dealing with this draft, which transposes a European directive.

The mutual trust between European Member States to execute the prison sentence in the country of origin is a principled and important step. I realize that not everything is perfect. The prison systems in other countries in Europe are not perfect, just as they are perfect in our country.

But arguing that detainees should not be transferred to other countries because it is better here is, of course, also a little contradictory. All countries in Europe must upgrade their system.

So I thank you for the discussion. It is a step forward. In the near future there will be another directive related to corporate law, which is likely to trigger less debate.

Following the transposition of the Return Directive last week, an important aspect from a judicial perspective was not discussed: with the decision today, the link between illegality, crime and expulsion has now also been incorporated into our legislation. In other words, not only is the connection crime-illegality accepted in bilateral agreements, but also in our law, which transposes European conventions and directives. This enables the penalty enforcement policy to be placed in a wider European and international context. In short, serious steps have been taken in the area of punishment enforcement, a very delicate topic.

I sincerely hope that work will continue in this area. Seven new prisons will be built, all of which have building permits. There is electronic surveillance and so on. I will not take the whole over again; we have been able to debate a lot about the justice reform. I sincerely hope that, with anyone, this can continue with the same enthusiasm.

I would like to thank you all for the intense and yet productive cooperation; there has been a lot of work done in the Justice Committee, including ongoing matters.