Proposition 53K2744

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

PS | SP the Di Rupo government

Submission date

April 11, 2013

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

administrative sanction work prisoner damage penal institution criminal law penalty illegal restraint

Voting ¶

Voted to adopt

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

Voted to reject

Groen Ecolo

Party dissidents ¶

• Bernard Clerfayt (MR) voted to reject.
• Olivier Maingain (MR) voted to reject.
• Damien Thiéry (MR) voted to reject.
• Stefaan De Clerck (CD&V) abstained from voting.
• Özlem Özen (PS | SP) abstained from voting.

Contact form ¶

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Discussion ¶

May 29, 2013 | Plenary session (Chamber of representatives)

Full source

I will hold my report on the discussion of the bill amending certain articles of the Basic Law of 12 January 2005 on the prison system and the legal status of detained short-term persons. There is probably a long afternoon ahead of us. Nevertheless, I would like to communicate the following.

The current bill came following various hostage-taking and incidents in prisons. It was also submitted at the request of the prison staff and in consultation with the trade unions.

The law is being amended on a number of points. For those who are interested, I would like to share the adjustments.

The nature of the penitentiary work is clarified. More specifically, it is stated that it is not a labour contract within the meaning of the Law on Labour Contracts. A legal basis shall be established that enables the administration of the institution to recover the damage caused by the detainee from funds owed by the institution to the detainee.

Cases of investigation are being extended. I am talking about the search on the body.

There is also an adjustment and extension of the disciplinary rules, such as the aggravation of the disciplinary penalty in case of hostage-taking, with a simplification of the procedure.

During the discussions in the committee, there was occasionally a bitter debate. The discussions have ⁇ focused on, on the one hand, the penitentiary work and its status and, on the other hand, on the extension of the search on the body. For the concrete texts and presentations, I would like to refer to the written report.

Mr. Speaker, if you allow me, I would like to immediately explain the position of our group.

Colleagues, I think that no one can object to the measures in question, in the sense that they all aim to strengthen the safety of prison personnel. This is an important aspect. We supported the bill.

However, some things need to be further clarified, adjusted or noted.

First, the draft law clearly stipulates that there is no employment contract in the case of penitentiary work, but it remains unclear how such work should be viewed, Mrs. Minister. You have not specified them and only refer to KBs, the Basic Law and the European Prison Rules.

What is cynical about that? There is a reference to the Basic Law, but just that article to which it is referred is not even in effect. If, for clarification, one refers to a legislation that has not yet entered into force, one has a problem.

This brings me immediately to the most important point of criticism, Mrs. Minister. Today we will amend an important law, a law that has not yet fully entered into force. The Basic Law dates from 2005 and is therefore eight years old and it is still not implemented today.

I think that is a terrible pain point in the rule of law, which should be ours. I find that almost scandalous.

When I look back on the discussion in the committee, I also understand that the law is not implemented and it is not completed. It refers to the budget, but I think there are more reasons why decisions are delayed or are only implemented fragmentarily, namely because there is no consensus in the government.

This has been observed in the discussion of this bill. If I take into consideration the discussions about body fouling for the mind and the comments and questions that were asked in this regard by the CD&V and the CDH factions, I think that says something about cohesion in the government.

These were justified comments. A fragile balance must be ⁇ ined. This must be precisely determined: what can and what can not, what is practically feasible. This is a very important aspect. How far do we go with that search every time someone comes in and out of prison, is visited or interrogated? Problematic was that the memory of explanation stated something different from the law articles, also something that begins to become symptomatic for the government.

There could be no compromise on this in the committee between the majority parties, even to the extent that the members of CD&V and cdH have abstained on that point and there has even been an abstinence followed by some of the majority on the entire draft law.

I was looking forward to the debates on these issues today and was curious about what the concerned groups would do today and their views. However, I see that colleague De Clerck, who has been dealing with this in the committee, is not there today.

I would like to tell my colleagues and the members of the majority, however, that on the ground there is nothing to these discussions if one does not amend the law or acts in accordance with the law. Make good laws, agree. Profiling is one thing, but good legislation is another and that’s why we are here today. This is the only thing we demand from the government.

I think we have taken the wrong path with the most recent legislation and draft laws. Nevertheless, Mrs. Minister, we believe that the draft for the safety of staff is indeed a step forward and we can give our approval.

Mr. Speaker, Mrs. Minister, dear colleagues, the text of the law submitted today to the vote brings adjustments to the 2005 Law on Penitentiary Administration as well as on the legal status of detainees called the Law of Principles. Such adjustments shall be justified for reasons of security, administrative simplification and clarification. If the objectives of the proposed amendments are praised, my group will vote on this text without enthusiasm. We deeply regret that, eight years after the passing of the law that finally recognized rights and status to persons who are subject to a prison sentence, some provisions have still not entered into force. My group also fears that the proposed amendments, far from providing more security, question a number of advances enshrined in the 2005 law. It is, however, essential to find, in this matter, a balance between the duties of the detainees and their rights, between the safety and working conditions of the penitentiary officers and the status of the detainees, between the punishment to be subjected to the detainee and the maintenance of human dignity and decent living conditions within the prison.

The bill deals with different themes. I will only return to a few of them. First, this project aims to revise the body search systems. This measure is ⁇ intrusive and should be limited to the maximum. While security in prisons is fundamental, whether for guards, society or prisoners, it is necessary to ensure that security imperatives do not undermine fundamental rights.

Such protection in prisons and in society must not be at the expense of the human dignity of inmates and must never justify the risks of inhuman and degrading treatment. This is a game that must be ⁇ ined at all costs.

We question both the applicability of this system and the relevance of the systematicity of these body searches, when, for example, the detainee leaves the prison to consult his case or to go to court. A circular should clarify the application cases; we will be attentive.

Second, adding a mention to the Principles Act that work available in prison is not the subject of a labor contract should not prevent ensuring that working conditions are proper and that remuneration is adequate. It is to allow the detainee, on the one hand, to cover his or her minor personal expenses and, on the other hand, in the framework of reparative justice, to compensate his or her victims and to repair the damage he or she has caused. Without this, work in prison loses a significant part of its interest.

In the same sense, the work must be instructive and should, to the extent possible, enable training and assistance to the detainee in his reintegration, with a view to his release from prison. Finally, a number of key issues also arise, including the protection of the detainee in the event of an accident at work.

The Law of Principles stipulates that every detainee must benefit from a detention plan. It is currently only seldom established, which is an undeniable brake to the work of insertion or reintegration of inmates into society. Of course, the investment is important. But not implementing it to promote the reintegration of inmates is a strategic mistake in the fight against recurrence.

This is not a progress for human rights. However, it is part of a compromise, and we are loyal partners. It can improve the security in prisons. Unfortunately, my group is not convinced at the moment. To ⁇ this objective, however, we will vote in favour.

Mr. Speaker, Mrs. Minister, dear colleagues, this bill is first and foremost a response to the dramatic situations that prisons experienced a few months ago: violent hostage-taking of guards, escapes, attempts to escape with violence. These sad events are, unfortunately, only an illustration of the widespread discomfort in prison establishments and insecurity for both guards and detainees, but this is not new.

This is no secret to anyone: the prison may prove to be a brutal world. Violence among prisoners, against prison officers, the harmful influence of heavy offenders against prisoners, ⁇ beginners or weaker, the introduction of communication devices, weapons or elements used to manufacture them, trafficking and drug consumption are phenomena that should not be concealed.

The willingness to carry out incarcerations in respect of human dignity is also a goal for all.

The state of the prison buildings is not satisfactory; we also know it and we need to remedy it. Therefore, the Masterplan has undertaken a whole dynamic in this direction. Construction takes time and will give results, but unfortunately not immediately.

Other initiatives have been taken or will be taken in the short term to remove some people from prisons and thus to reserve more prison for only the most dangerous criminals for society and for whom prison represents the most appropriate response. In particular, I think of the recent project allowing the conditional release under electronic bracelet. In the same line, the establishment – as well as works of general interest – of an autonomous penalty in the form of an electronic bracelet must be possible.

It is of paramount importance, for my group and for myself, that the criminal response provided by society to the offenses that are brought to it corresponds to a genuine reflection on the relevance of the repressive scale and on the scale of the value underlying this choice.

Relevance based on the great principles of law that are always intended to be respected: the legality of the punishment, the vision of society and the importance of the principles of which the offence is sought to be suppressed, as well as the adequacy of the response to insecurity and the feeling of insecurity.

Meanwhile, it is necessary to organize life in prison establishments and organize it in the most balanced way possible, with respect for each, detained as prison personnel, and this management involves taking measures to channel and prevent the violence we have known.

To argue that this will only provoke other violent behaviors is the best excuse for doing nothing and sending back-to-back detainees and personnel from prisons and this, my group and myself cannot accept.

I think the bill realises this difficult balance of the main principles and principles set. I’ll only list three of them here.

The first is the intensification of disciplinary sanctions in the event of hostage taking. It is proposed to give directors the opportunity to impose 14 days of punishment cell or jail in place of 9 currently. We would like to give a clear signal to both prison personnel and detainees in relation to these serious facts. Hostage-taking of any person within a prison facility must be treated in the strictest and most severe manner. The sanction chosen appears to be quite proportional in this regard.

The bill also provides for the aggravation of penalties in case of possession of GSM. The possession and use of technological means that allow to communicate irregularly with the outside world becomes a category 1 offence instead of being currently in category 2. Specifically, the duration of the penalty "privation of canteen, visits, library and sports" is increased from 15 to 30 days at the maximum. In addition, this will allow the insulation cell to be inflicted for 9 days instead of 3 currently. This measure also seems to me to be fully proportionate to the problem posed by the irregular means of communication, in particular and mainly GSM. This is indeed a method often used to get drugs into, organize escapes, etc.

Finally, the text we are discussing also changes the system for searching the bodies of inmates. This is ⁇ the most delicate point of balance to be sought. Indeed, if the situation and the question of respect for the human dignity of the detainee remain central in this matter, it is primordial to ensure the security of the establishment.

It is not uncommon for the opportunities of external contact of inmates to be exploited for various and forbidden trafficking: weapons, drugs, gsm, whether voluntarily or under the pressure of more tempered or tempered inmates. Ending these practices involves systematic body searching in situations of potential danger, such as those in which inmates have been in contact with third parties, i.e. people outside prison or judicial staff.

The law stipulates that the investigation will take place when the detainee enters prison. This systematic search will also take place prior to placement in a secure cell or punitive cell, in accordance with the internal rules of the prison, after a visit to premises not equipped with separation walls. Such excavations are obviously not pleasant neither to the prisoner nor to the staff. This, however, remains the only method of control when the detainee has been in contact with third parties.

Also in this area, a balance has nevertheless been established, as the ratio legis of the measure aims to impose a body search only when the situation presents a risk of introducing prohibited objects into the prison premises. Therefore, by principle, exits are excluded where the detainee has only had contact with the prison or judicial staff, (appearance in court, consultation of the dossier, hearing by the police or an investigative judge) to aim more specifically the scourge and return to prison.

My team will support your project.

The Basic Law on the legal status of the detainee is amended today after consultation with the Cypriot trade unions. We are not saddened about that. It is a relatively small part of the law that is being amended and we think there are a lot of other things that need to be amended in that law. In any case, today I will limit myself to the outline of what you put in your bill. Much of the law is not yet in effect. Many articles have not yet entered into force. In my opinion, these are ultimately also not feasible because one is based on a misconception in that law, in particular the detention damage that can be incurred exclusively by a detainee. It has been tried to pour the ideal world into that law, but it must then be translated on the ground, in the prisons themselves, with all the consequences thereof. As a result, a large part of that law has not entered into force, which ⁇ has to do with the infrastructure in a large part of the Belgian prisons.

Today, however, we will limit ourselves to the part to which you have limited ourselves. We are moderately positive. As for the work of the detainee, I would like to point out that there is still no definition of it. But ⁇ well, because – forgive me the term – the “tribunal for the protection of the rights of criminals” in Strasbourg could at some point find a way in it to use it again to bring laziness and impunity into the institutions.

Per ⁇ it is better not to define the work of prisoners, for then neither a lawyer nor a judge can abuse it and put our entire criminal system, once again, on a slope.

Of course, it is mainly about the naked fouilles. That’s why I just said that we are moderately positive about this bill. I would like to refer back to an action I have undertaken myself, together with Flemish Parliamentarians of Interest from Limburg. In December 2009, we went to jail with a number of members of parliament and employees. We had taken a number of dogs that were suitable for use as drug dogs in prison. In fact, it was a ludicrous action. Of course, the animals were not allowed to enter. The beasts of the Flemish Interest were allowed to enter prison, at least parliamentarians.

We were guided there and taught by cypriots how the searches – a regular search, a naked fouillage and an examination of the body – take place. We were also allowed to leave the prison after our action, Ms. Minister.

Six days after our visit, I get two calls from cybercriminals telling me that a detainee had died as a result of drinking a drug cocktail in prison. It was a mixture of two drugs that had been fatal to him. No one can accuse us of table jumping. At that time, we also highlighted a pressing problem in this regard.

The striking thing about this case is that six days after our action, with which we wanted to point out to society the need for more searches and checks, such a terrible thing happened. There is no intention of anyone dying in prison. We have abolished the death penalty in our society, whether one is for or against it. No one has to die in prison.

One-third of prisoners are now in prison for the first time in contact with drugs. Therefore, it is ⁇ no luxury that we approve this bill today.

But let me be clear. The Naked Fouillation is also just the Naked Fouillation.

In the meantime, you have also taken a number of other measures, with which we naturally agree, such as better scanners and drug dogs in prison. We fully agree with such measures.

But in the committee, frankly, I received it on my hips from committee members who at all times praised, with understandable sympathy and empathy for detainees, the degrading or humiliating character of naked foulings. The human character is also correct. However, prisoners are also not imprisoned for no reason, at least if one accepts the legal system and the rule of law.

When there is so much excitement about naked fouling, like Mr. De Clerck, who is unfortunately not present today, I can still ask questions about it.

For example, what is a naked fouillage? I explained the procedure. The prisoner is not even touched. He must indeed, even for a very short time, show himself in his exhibition.

There are anecdotes of cypriots, who really come from the workplace. People see something in one or another body hole, but cannot handle it. They should not touch the body part. There must be a legal doctor. By the time it is so far and the law doctor arrives in the prison, the bird has begun to fly, although that in that regard may be a slightly too plastic expression. In any case, the element of the crime against then has long been concealed or thrown away.

We must therefore also try to live ourselves well in the role of the cypriots and not only in the role of the detainees, when a naked fouling takes place and things are established, which can only be discovered through an examination of the body.

Mrs. Minister, in a sense I would like to point out today that such naked fouling is not yet going far enough. It is good that the measure is generalized. I also hope that there is not too much doubt in the committee. I also hope that the parliamentary acts do not include too much of the explanation you have had to provide Mr De Clerck, namely that it is not too much of this and not too much of that. I really hope that the measure will be applied consistently.

Otherwise, the naked foulings are sometimes insufficient. Therefore, the Flemish Interest continues. We want everyone to be monitored consistently. When someone once smuggles something inside the prison, his act must be answered the next time d’office with an examination of the body. The person concerned has made himself guilty and violated confidence. Therefore, he must undergo an examination of the body. Someone who recurs may face a body examination every time for us.

Those involved in the prisons where there is more comfort will find it less, to enjoy all the luxury offered and ⁇ better do their best to get out of prison.

So, Mrs. Minister, from us today you get a net enough: we will abstain. You ⁇ won’t get any distinction from us: that’s why we don’t vote for it.

We are not going to repeat the long debates in the committee. I will only address two points, namely the systematic search and the social assistance that inmates can claim.

Mrs. Minister, your bill pursues quite understandable and praised goals: securing prisons, securing prison officers from prisoners who are sometimes in situations that push them to the extreme. All of this is important and must be carefully cared for.

Regarding the search, in your text you propose to move from a procedure, which allows the prison director to consider that a search is necessary when he deems it necessary, to a systematic procedure. The aim is to streamline search procedures, make them less burdensome on the administrative level, fight against the introduction of things that you do not have to find there, such as weapons, cell phones or drugs. Under certain circumstances, searching can be a unique opportunity to avoid such situations. But was it necessary to move from this system of decision of the director to the one that is being proposed today? The search will be systematic whenever a detainee enters prison, whenever a detainee has been visited without a glass of separation, whenever he has been placed in a secure cell or punitive cell, or when the director considers that indications suggest that the search of clothing will not be enough.

What we aimed at by adopting the 2005 Law of Principles, that is, to ensure the necessary balance between security and humanity, isn’t not on the verge to be undermined and, ⁇ , broken?

In the Justice Committee, my colleague Georges Dallemagne, who represented me, wished to abstain on this specific point, thus marking the feeling of our group.

I wonder if this systematic search is feasible. Wouldn’t it be worse than better? If at first, this measure can give the guards a sense of strengthening their security, do they not risk, over time, with the resulting steps, to abandon this search? In the end, will this text that has aroused a lot of emotion really be effective and feasible on the ground?

In addition, as you know, some are questioning whether this provision is compatible with the European Convention on Human Rights. We may be at risk of lawsuits and penalties. Therefore, on this point, the text will need to be subject to a very serious and prompt follow-up and assessment as to its effectiveness, considering the aim pursued.

So I come to the second point that I wanted to address, that is, social assistance. I would have liked a specific provision to be included in the text. Indeed, beyond the conventional social assistance, there is the individualized social assistance for what is called canteen purchases, and for which some CPAS, especially those who have a prison in their territory, are now quite regularly convicted. Shouldn’t there be a provision in the law with which your predecessor, Stefaan De Clerck, seemed to agree when he was questioned by parliamentarians, stipulating that this obligation belongs to the SPF Justice in general, but also to each prison management, since the work of the detainees and their organization should enable them to cope with these obligations? Your attitude in this regard seems a little more reserved than that of your predecessor.

During the lengthy debate that we had in the committee, relatively different views were opposed to each other to the extent that this situation is not explicitly outlined in the law. I feel, Madam the Minister, that in the short term, when the CPAS will still be requested, they will not fail to bring to the cause your SPF in such a way that the conditions will be clarified by the judiciary, unless we have done so. I’m sorry, but I think that’s the solution.

It’s not because we’re in a majority that we can’t express our state of mind. That being said, our group, unless ⁇ with a close exception, will support your bill.

Mr. Speaker, Mrs. Minister, colleagues, we have discussed a limited adaptation of the basic legislation on the legal status of the detained. In this regard, we note that this is an adaptation of legislation that has not yet entered into force. We have asked the Minister to make progress on this and I think she supports this substantially. Provisions such as the individual detention plan, which the minister says is being applied in practice, but for which regulation needs to be provided to support that, urge us to allow this to happen too.

What has been said in the committee on various points such as labour legislation, I will not repeat. It is important to ensure that social rights are not compromised. The basic philosophy embodied in this basic legislation must be ⁇ ined; on the one hand, we want to ensure safety for society, on the other hand, the fundamental rights of detainees must remain guaranteed.

We had a long discussion in the committee about the search on the body or naked fouling. For the sake of clarity, I would like to say that today’s meeting was not planned in advance. The meeting would normally take place tomorrow. Collega De Clerck was not deliberately absent, this had to do with the shift from the meeting to today. Our group continues to find it important to find a balance. There is, on the one hand, safety, a legitimate demand from guards and society, for adequate surveillance through, among other things, searching to guarantee safety.

Guaranteeing safety can be done through screening and body examination. In addition, everyone should realize that naked foulings are not pleasant and humiliating. I think we should be careful about this.

This is the sign we wanted to give by our abstinence in the committee. If one goes from an exceptional measure to a systematic measure, one must also remain vigilant and be able to provide safeguards. In the case of systematic naked fouillage at the time people enter prison, as a result of a collective and automatic application of measures, the question can be raised in the extent to which the systematic naked fouillage is necessary if there has been guidance and if there has been a guard inside. In the law, this is very strictly described as a systematic measure, while that is sometimes described differently in the explanation. Therefore, we continue to have questions about this. The test of human dignity remains essential.

We will continue to follow up on this, including with a view to further reviewing the fundamental rights guaranteed by Europe.

Mr. Speaker, as already stated by a number of speakers, the amendments to the Basic Law have been made following negotiations with the trade unions of the penitentiary guard officers.

One of the strengths of the consultation with the trade unions was the adoption of measures to improve the security and organization in prisons.

Funding has already been made available for the purchase of metal gates, special gloves and other instruments to improve the safety of prison guards in the performance of their duties.

In March 2012, a security memorandum of understanding was concluded with the trade union organizations. Changes in disciplinary sanctions are to be considered within the framework of this Agreement. There are also administrative simplifications.

The security issues have arisen as a result of, among other things, the repeated taking of hostages. They have demonstrated the need to amend a number of provisions of the 2005 Basic Law. With these adjustments, the government aims to give a clear signal that taking hostages of any person in prison is a very serious problem. Thus, it gives the prison director the possibility to sanction such a breach more severely.

The disciplinary regime of the detainee, as provided by the law, has been in force since 1 September 2011. After a year of operation, it also shows that some improvements are desirable. Thus, non-compliance with the rules of the Rules of Procedure is generally punishable and is no longer limited to non-compliance with the rules relating to the objects. The disciplinary procedure is further simplified by no longer requiring the director to notify the detainee of the fact that he has decided not to give disciplinary effect to a report delivered to him by an official. Investigation is an important security factor in prison. Also in this field, practice shows that the amendment of existing legal provisions is necessary. However, I also agree with all the speakers who say that we must very well maintain the balance between the rights of the detainee and the safety of those who work or reside in prison. The latter is also crucial.

In addition, the draft law also proposes an amendment that is separate from the issues of order and security. The provisions relating to prison work are supplemented in order to clarify that no employment agreement shall be concluded with prisoners engaged in prison work. We have regular legal proceedings on this. I think everyone agrees with me that working in a prison is not a labor contract with all the conditions and consequences associated with it.