比利时驻联合国日内瓦办事处常驻代表伯特兰•德•克鲁姆布鲁格（Bertrand de Crombrugghe）在介绍报告时回顾了比利时对保护和促进人权的重视。
Presentation of the Report
BERTRAND DE CROMBRUGGHE, Permanent Representative of Belgium to the United Nations Office at Geneva, introducing the third periodic report of Belgium, recalled the importance that Belgium attached to the protection and promotion of human rights, and introduced members of the Belgian delegation.
STEVEN LIMBOURG, Counsellor General and Director of the Direction III for Criminal Code and Public Service Federal Justice, also introducing the report, drew attention to the adoption of the Salduz Law of 13 August 2011. This law bolstered the rights of persons interrogated by the police and legal authorities. It provided that any declarations made in violation of this law could not serve as a legal basis for any decision. Other new legislation included the extension of the definition of human trafficking, a law providing for the increase of fines in terms of human trafficking by the number of victims, and a more systematic use of audio-visual recording of hearings. Unaccompanied minors were no longer placed in detention. There was a greater legal definition of how a minor could not be expelled if there were no guarantees for their hosting in their country of origin or if this was in the best interest of the child.
Action plans had been adopted on trafficking of human beings and violence against women, providing many efforts such as fostering awareness and undertaking criminal action on an effective basis. Training had been bolstered for people in the field fighting against human trafficking and violence against women, such as the police, magistrates and public health officials. Training had also been bolstered in fields such as the forced expulsion of foreigners. Concerning communities, Flanders had adopted a decree on the provision of assistance and services to detainees with the aim of ensuring that the rights of all detainees were covered on the basis of their needs for quality services through a trans-sectoral approach between different service providers. A new legal framework was adopted on child abuse, whose definition now including corporal punishment. There were some short-comings and problems that persisted, such as the problem of prison overcrowding. Structures existed that covered certain facets of the Optional Protocol of the Convention against Torture although it had not advanced much in recent years.
Questions by Committee Experts
ESSADIA BELMIR, Committee Vice-Chairperson and Rapporteur for the report of Belgium, turned to issues under Article 1 of the Convention. The first question related to whether there had been any change or progress in terms of thinking about the inclusion within the domestic criminal legislation and code of a definition of torture fully in line with that under Article 1 of the Convention. The Committee had said that there were elements of the definition under Article 1 of the Convention that were not covered in the Belgian domestic legislation. There was a need for further reflection on this issue and to add new elements to the definition in Belgian domestic legislation. On the creation of a national human rights institution, positive news had been received on priority being given to the setting-up of such an institution. The State was asked to do so fully cognisant of the unique structure of the Belgian State and its Federal nature.
On persons deprived of their liberty, particularly those held in custody, Ms. Belmir noted there were some very vulnerable people who ended up in custody who were illiterate, did not speak the language, or had disabilities. On access to a lawyer, the Salduz Law was a significant step forward but certain criticism and appeals had been levelled against it. Certain persons deprived of their liberties had found no facilities for interviews to take place confidentially between a lawyer and his or her client. There was also restricted access to legal aid for the poorest in society. Concerning medical care and support provided to detainees, the European Committee for the Prevention of Torture reports, particularly the 2012 report, highlighted several flaws and failing, if not deficits, in the system, including lack of a transparent approach in the provision of medical care to persons deprived of their liberty.
On violence against women and children, a range of acts, norms and standards, measures and training initiatives were mentioned in the report to address this, what was being done in relation to the Convention against Torture, which seemed to play a subsidiary role in Belgium’s thinking and legislation. Understanding of the Convention against Torture was key in training. This was particularly true when training on tackling violence against women and children. There were many ways to deliver training and a holistic approach was needed, but as part of a holistic approach the Convention had to be invoked.
On the issue of trafficking, things were changing in a positive way, but there seemed to be a focus on addressing the issue with fines for those responsible perpetrating such acts. Were fines enough, Ms. Belmir asked? These were criminal acts, criminalized by the Convention against Torture, inter alia. The sanctioning of trafficking could surely not be done just with fines. There was criminalization of ordered acts of torture which went some way to matching what was foreseen in the Convention, but once against the Convention was not referred to. Concerning forced expulsion, there were claims made that seemed to imply that there was inhuman behaviour and ill-treatment carried out by those responsible for carrying out forced return or deportation. The European Court of Human Rights continued to receive appeals on such cases. There was an urgent need to improve the services and handling of forced return or deportation.
On diplomatic assurances, the State party recognized that it agreed to extraditions as long as the relevant assurances at the diplomatic level were in place, but there was a failure to refer to the issue of torture and seeking diplomatic assurances on torture.
ALESSIO BRUNI, Committee Expert and Co-Rapporteur for the report of Belgium, said concerning non-refoulement, the Committee had heard that the body concerned with monitoring forced return of or deportation of persons was financially limited. If this was true, how could the oversight body carry out its work? On diplomatic guarantees, the report read that 75 persons were extradited from Belgium between 2008 and 2012 and that diplomatic guarantees were requested in only three of these cases. Which countries did they involve and was there a guarantee of diplomatic follow-up? There was also the issue of urgent appeals in cases involving the removal of aliens. It seemed that the practice was somewhat different from the theory.
On training of civil servants or of public officials, Mr. Bruni said it was clear that specific training on the absolute prohibition of torture was not explicitly provided but it was understood because the police were required to respect all human rights. It was all well and good to have provisions that promoted respect for human rights and which bred a human rights culture, but it was important to make it explicit that there had to be an absolute prohibition of torture. The same was true for the ethics code of the police. According to non-governmental sources, there was currently no official code of ethics for those responsible for the supervision of detainees and monitoring their well-being.
On the penitentiary system, statistics in the report showed that the overcrowding rate hovered over 20 per cent. Non-governmental sources said that in several major prisons the factor went beyond 50 per cent. Could this be confirmed or not? Belgium had declared to the European Committee that a drop in the number of prisoners per dormitory could only be achieved through an increased capacity of the establishment which was not possible in light of overcrowding in other prisons, but nonetheless committed itself to doing so when possible. What specific steps had been taken to reduce overcrowding? There had been information in the Belgian media, recently, mentioning the end of a lease for the prison in Tilburg, which was decided upon by the Belgian Government, which would end in December 2013. What would happen after that and what measures had been planned to avoid the increase in overcrowding in prisons in Belgium if the Tilburg prison was closed?
On the plan for the expansion of penitentiary sites and new establishments, the report specified that effective results of this plan would occur in 2013. They were now in 2013. Could the delegation give its first appreciation of the plan? Did it see any positive results?
On Article 12 of the Convention, mandating a government to carry out inquiries on the basis of complaints that had been lodged, Mr. Bruni said that according to the report, in 2012 the external oversight body for the police did not have a global evaluation of the entire complaints system that was processing complaints against police officials. This external oversight body did not have any evaluation of that. Was this available today? On Article 15 of the Convention Against Torture, Belgium did not provide for explicit exclusion of testimony provided under torture. Could the delegation provide an update on the trial against 14 police officials in the case of the Brussels Midi train station and ill-treatment?
A Committee Expert requested additional information concerning any agent who would refuse to execute an illegal order. It was imagined that the superior would be quite angry and carry out sanctions or active reprisals against this police officer. Was there any provision to protect a police officer who had refused to carry out such as act in Belgian law?
On impunity enjoyed by police agents, it would seem that one of the reasons for this was linked to problems of identification of police agents. In the identification process, would there be name plates for police officers? On prison overcrowding, according to information received, it seemed that 10 per cent of the prisoners were made up of mentally ill persons. Were they criminally responsible in Belgium?
Another Committee Expert, on overcrowding, noticed the unusual arrangement with Tilburg prison. Was the closing of this prison a positive or negative development? The European Committee for the Prevention of Torture had said that the level of violence was greater in that particular prison. In situations of overcrowding they saw not only generalized violence but also situations of sexual violence against prisoners. Were there any statistics on this? On the issue of ethnic origin of detainees, what statistics were available?
On intrusive body cavity searches, it was understood that a new law provided for strip searches in a wider array. Were there any plans to discuss this? Were there measures that could be taken that were less intrusive?
Another Expert, on health care and inmates, said there had been the visit of the Council of Europe's Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in October this year. The full report was not yet available but there was reference to problems of mentally ill inmates and lack of specialized staff. What were the plans to transfer these inmates or to otherwise improve their situation?
On the question of reparation, redress including rehabilitation had been asked for. There had been no overview of whether this had been provided. On children and on the prohibition of corporal punishment, the Committee had asked about this before. The Committee on the Rights of the Child had recommended this as well. It was one thing to deal with it when it had taken place but another thing was to send a preventative message that corporal punishment was not allowed in the home.
An Expert said that Belgium punched above its weight in international relations. The Belgian case was in many ways to be held as an example or benchmark for other countries, particularly on issues of refugees, asylum seekers and their treatment thereof. Did Belgium apply diplomatic guarantees also to cases of return that were not extraditions and what mechanisms were used to ensure that in the country to which persons were returned guarantees were complied with, particularly that these persons would not be sent to a third country? In cases involving the return of Roma, among others, were they treated in a unique or different way?
How was the Government of Belgium collaborating with the court that would try the former President of Chad? On personal data in the European database, personal data contained in this database should not be shared with different countries. Had the necessary precautions been taken to ensure this did not occur and what guarantees had been enacted?
CLAUDIO GROSSMAN, Chairperson of the Committee, noted that during the Universal Periodic Review examination, a number of countries had recommended that Belgium considered the ratification of the Convention on Migrant Workers and it was also noted that this recommendation was not supported by the Belgian delegation. Why was this so? There had also been a recommendation to afford sufficient legal safeguards so that complaints by foreigners did not have negative consequences regarding their stay in the country, which also did not enjoy the support of the Belgian delegation. Why was this so?
If a public officer engaged in an act that would constitute torture under the Convention but the purpose was simply discrimination, was that called torture in Belgium, asked as an Expert? How was it punished?
It was also noted that the police code did not specifically prohibit torture and failed to mention sanctions to which police officials may be liable.
What was the regime on solitary confinement in Belgium?
ESSADIA BELMIR, Committee Vice-Chairperson and Rapporteur for the report of Belgium, on juvenile justice, noted that Belgium used video-recording during hearings with minors or suspected victims of trafficking. Was this measure guaranteed? The Human Rights Committee had asked a question on excessive use of force by the police and about the possibility of modifying or amending domestic law to include therein the United Nations Basic Principles on the use of force and weapons by law-enforcement officials. However, Belgium had responded that Belgian domestic laws were in place and that they all contained the principles of the United Nations standards and that it did not see the need to modify legislation in any way.
ALESSIO BRUNI, Committee Expert and Co-Rapporteur for the report of Belgium, asked what the current status was of the six individuals whose expulsion cases had been suspended. Was there any further information as to the current status of the cases of these individuals today?
Belgium had signed an agreement with the International Committee of the Red Cross to carry out visits to persons detained in relation to terrorism. More information as to what the content of this agreement in principle was and whether it was still in force would be welcome.
Responses by the Delegation
Responding to these questions and comments and others, the delegation of Belgium said that the Salduz Law entered into effect following an evaluation process. Four evaluation reports were deposited and these were all public. One of the important indirect effects of the Salduz Law was the preparation of its entry into effect and research, in close cooperation with all actors concerned, which led to an increase in mutual respect and understanding of each one’s role. On doubts about confidential consultations with a lawyer before charges were made, consultation did indeed take place before an examining magistrate could demand an arrest warrant.
Forty-five suspects had been questioned on their understanding of their rights and the majority of them seemed to find that the declaration of rights was clear and understandable. This declaration was given to suspects before interrogation. The delegation wished to reassure the Committee that methods of making this accessible for the more vulnerable had been envisaged. On access to files, the Salduz Law had not changed this system and only dealt with initial interrogation.
Concerning honour crimes and female genital mutilation, these were two issues to which Belgium attached great importance. Belgium had decided to implement 122 measures to fight these problems. On female genital mutilation, a legislative framework and repressive approach was not the best way to approach this phenomenon. Despite a code created in the prosecutor’s office, cases recorded with legal authorities were still limited. Belgium had chosen to take a holistic approach, putting the accent on prevention and having a prise en charge of the victims of female genital mutilation. This needed a specific, case by case approach. An action plan being drawn up would continue to fight both phenomena. For more information, reference was made to Belgium’s October 2012 report to the Committee for the Elimination of All Forms of Discrimination against Women.
Statistics came from the penitentiary database that managed individual cases and files. Essentially the database contained individual data directly linked to the detainee and to the management of the file. Other personal data was not put into this database and statistics could not be provided on, for example, ethnic origin. One of the main obstacles facing Belgium was overcrowding in prisons. There was a dual problem of overcrowding and under-capacity. On how to reduce the number of prisoners incarcerated, alternative sentences to imprisonment, such as electronic bracelets, among others, were utilized. A series of measures would be taken to make improvements in the area of capacity, including a lot of attention to the meaning of detention itself. Regarding mentally ill persons, they were not criminally responsible. The problem was that there were no special facilities in Flanders and that was why they remained in prison, while some special facilities did exist in Wallonia.
There was violence amongst detainees in Tilburg prison, and stress and tensions were being relieved. The lease would end in December 2013 but there was an agreement in principle to extend it by at least a year. As far as staff were concerned, basic training had been reviewed by introducing a whole series of courses.
On the right to strike, discussions with unions were underway. On the Law on Principles, it was said from the outset that its implementation would be gradual. The two major areas where there remained a lot of work to be done was the planning of detention and the right to complain. Detainees at present could appeal, including to ordinary tribunals vis-à-vis torture. On the problem of systematic searches, experience on the ground had shown that earlier provisions had not ensured the security of detainees. On isolation and the International Committee of the Red Cross, an agreement had not been finalized and discussions were still underway. However, there was no regime for terrorist suspects as such in Belgium. Each terrorist suspect was considered to be a detainee like any other. For all detainees, there was the possibility to impose a special security regime for a certain amount of time for whatever reasons when necessary, which could include isolation and exclusion from any community activities, but suspects could attend, for example, religious ceremonies.
Concerning the absence of an explicit reference to the prohibition of torture in the code of conduct of the police, police officers were aware of this prohibition even though it was not explicitly included. A review procedure was needed in order to amend the code of conduct. The code explicitly prohibited inhuman and degrading treatment and implicitly prohibited torture. On a lack of expression of sanctions that would apply, police officers could be sanctioned for the violation of the prohibition of torture. On basic rights and training and an assessment of the specific effect on the ground of training, there was no specific training on the prohibition of torture but it was covered in information on fundamental rights as a whole. Training of staff had been strengthened in terms of fundamental rights, such as diversity and non-discrimination. On complaints made against the police for violations of fundamental rights, these were available but it was difficult to make a cause and effect link with the quality and effectiveness of the training given. On excessive use of force by the police, Belgium believed its legal framework made it possible to prevent excessive use of force, which covered resort to the use of legal force. Knowledge of the legal framework was ensured. Sanctions included disciplinary procedures and the evaluation of members of the police as well. The United Nations Principles on the Use of Force was sufficiently integrated. Any resort to force was the subject of a specific report. On the use of firearms against individuals, this could occur only in limited, specific cases, and those using firearms were specifically trained. Regarding the use of tazers, their use was only available to certain units of the federal police and in certain zones, namely Bruges and Brussels. There were no cases of serious incidents or deaths by use of tazers by the federal police.
With regards to a question relating to persons that had refused to execute a clear illegal order from a superior, the code of conduct for the police provided no punishment or sanction for staff who had refused to carry out an illegal order. On the identification of members of staff and the risk of impunity in case of an anonymous situation, there was a draft involving amendment of the law. There was no more specific information that could be given on this at the moment.
Following the entry into effect of a regulation establishing criteria and mechanisms for the determination of the Member State to take into consideration a request for international protection by a resident of a third country or a stateless person, Article 51/5 of the Law of 15 December 1980 would be adapted. The General Police Inspectorate was the body of ensuring the control of forced returns, as it had experience in forced returns since 2003; the Inspectorate had the competency to verify this because it was an independent body. It ensured that the directives set up for forced returns were respected and that recommendations made by the ‘VERMEERSCH 2’ were followed. Concerning the number of returns, the Inspectorate had carried out 162 returns by air, land and sea, on a basis of a risk analysis and taking into account the opposition of a person to be returned, opposition by groups of sympathisers, and the risk of difficulties with the destination country. Statistically, two thirds of returns were carried out without use of force.
On the Eurodac Regulation, data processing here was processed in Belgium by its Privacy Commission, which carried out annual checks. On diplomatic guarantees, the decision for return was taken only after an examination of the elements invoked by the person and the foreseeable consequences of his or her return to the country of destination. Regarding the deportation of Afghans, this was a complex problem. In Belgium, independent bodies had been selected to examine this. There was a very precise examination of the situation and Belgian asylum authorities were more lenient in their approach to requests from Afghani nationals.
Diplomatic guarantees were raised several times. This came into play when there was a risk of torture or inhuman treatment, or a life sentence with no possibility of reduction of sentence, among others. There had been a need to request these guarantees only three times in recent years. With regards to guarantees in relation to the risk of a death penalty, the guarantee requested that the sentence would not be pronounced or that it would not be applied. Once this guarantee was obtained and deemed sufficient, extradition would be possible.
Belgium maintained its position relative to the definition of torture as it existed in its criminal code. An abject motive and discriminatory motive for torture was an aggravating factor for hate crimes in Belgian law and sentences could be increased if there was evidence of hate and contempt on a range of motives. On the Istanbul Protocol, it seemed this was not very well known in Belgium. Initial steps to promote the Protocol had been taken. All medical students in their studies followed legal medical courses to recognise signs of ill-treatment.
Regarding violence against women and girls, it was important to develop a manual to assist in recognising signs of this. On human trafficking, a brochure and a poster was sent in 2012 to all hospitals, in particular to emergency and gynaecological services. The fact that there were just fines for trafficking was erroneous as there had also been prison sentences.
On the case of 14 police officers prosecuted for ill treatment at the Brussels Midi station, it was important that although the case was not concluded a number of disciplinary sanctions had been handed down.
The dossier on the setting up of a national human rights institution had made progress. At present, the idea was to have a draft cooperation agreement that would create an inter-federal institution.
Further Questions by Committee Experts
CLAUDIO GROSSMAN, Chairperson of the Committee, said that, due to time restrictions, the remaining answers could be forwarded in writing, which the Committee would consider.
ESSADIA BELMIR, Committee Expert and Rapporteur for the report of Belgium, expressed heartfelt thanks for all the replies to questions. Ms. Belmir referred to what the Committee on the Rights of the Child stated in 2010 on how children between the ages of 16 and 18 might be tried as adults and in some cases lacked the right to legal counsel. On the question of how slow the overall justice system was, over the course of the last three years there had been a huge back-log, especially in the area of criminal justice. The system was not working as well as it should for reasons that the State party had to examine, if it had not already begun to do so. With regards to searches, these were done in situations which were very embarrassing for non-nationals. Searches also turned into something very humiliating, bordering on ill-treatment, which was reproachable.
It was not understood why the State was trying to avoid reference to the Convention against Torture. Was there a technical problem there? Could this be clarified?
ALESSIO BRUNI, Committee Expert and Co-Rapporteur for the report of Belgium, commended the delegation for all the information provided in such a short amount of time. Overcrowding was still approximately at the same level at what the Rapporteur had said. Could it be confirmed that in certain prisons, major detention centres, the rate was even higher and reached the figure of 50 per cent? On delays because of administrative issues, was there a way of compensating a detainee for a delay in their release? Would there be a real follow-up on what was said on Tilburg and lowering the number of beds in the facility? Regarding the code of conduct of agents of the State, why was there a code of conduct specific for the police and not for prison staff?
Regarding procedures of complaints for detainees, this was placed at the bottom of the list in terms of what had to be implemented. Why put it at the bottom of the list? Concerning the International Committee of the Red Cross, there was surprise, as the report said that the agreement in principle was concluded at the beginning of 2010. Yet, this agreement had not yet been turned into or made part of the legal framework. Could information be provided on the difficulties holding this up?
On training of agents of the State, specifically the police, there had indeed been an interesting assessment. It could perhaps have been included in the report. Contrary to what was stated, it was possible to actually measure the quality of training on the basis of a lowering of complaints. With reference to diplomatic assurances, these could never under any circumstance replace the principle of non-refoulement. When one knew that the risk existed, then it was the principle of non-refoulement that should be applied.
An Expert, with reference to Roma people, understood that there was a national plan that was not mentioned and more information was requested. On deportation of Afghan citizens, was there a number available of forced returns of Afghan citizens specifically?
When an asylum seeker in Belgium came under Dublin II and could be returned but the operation could not be carried out because there was no one to receive them, the Government of Belgium had to take responsibility for this person. Could more information and clarification be provided on this?
On strip searches and whether alternatives had been sought, an explanation on the so-called Dupont Act was requested.
CLAUDIO GROSSMAN, Chairperson of the Committee, asked with regards to the Dupont Act, what had been implemented? That the Flemish parliament had not passed decrees on the Protocol for the protection of human rights and fundamental freedoms was significant. On the police code of conduct, it did not ban torture explicitly and there was no mention of a penalty. Non-governmental organizations had expressed concern on the establishment of a complaint procedure for detainees. On the issue of confession extracted under torture, there was confusion. The delegation said this was left to a trial judge. What did this mean? What were the implications of this?
Further Responses by the Delegation
In response to follow-up questions and comments and others, the delegation said that in general the European Convention on Human Rights and European norms were referred to in the courts. This did not mean that it was felt that the United Nations norms were not considered important. Information and awareness-raising was provided to the general public on services provided by different authorities regarding ill-treatment of children. Hotlines were also set up for children. Calls could be made anonymously and were handled by professionals. The Flemish Government wished to await jurisprudence case law from the European Court of Human Rights for the draft decree on the Protocol for the protection of human rights and fundamental freedoms to take effect.
Concerning overcrowding in prisons, this was more at around 21 per cent. There was a proposal to build a new prison in Antwerp to deal with this problem. There were prisons where there was no overcrowding. Belgium would prefer to work in the best possible conditions with those that had been given long sentences. Construction itself was not the only answer. It was hoped that populations in prisons and their capacity could be stabilized. On searches, everyone in Belgium agreed that a search was intrusive. The State was thus trying to limit these. It was noted that strip searches were unfortunately necessary. Scans were a possibility and were being tested. If in future it was decided that these could be used in all circumstances to replace strip searches, this would be considered.
There was no reluctance at all by Belgium about the explicit inclusion of the definition of torture in the code of conduct. In order to review or revise the code of conduct and include a reference to torture, a global review would have to take place, which would require consultation of all stakeholders, and an enormous amount of time for reflection. It had been decided that it was not opportune to do this now. Belgium considered that the damage was limited as there were provisions in the code of conduct that made clear reference to human rights.
The agreement with the International Committee of the Red Cross was informal. It was on a case by case basis that the prison situation of a detainee was considered. On requests for asylum, if a person was tortured in their country say, in 2008 but arrived in Belgium four years later and asked for asylum, that was not something Belgium was responsible for. Statistics had been provided on everything related to police violence and on compensation.
CLAUDIO GROSSMAN, Chairperson of the Committee, in concluding remarks, thanked the delegation of Belgium and said that responses provided would be taken into account by the Committee for its concluding remarks and observations.
BERTRAND DE CROMBRUGGHE, Permanent Representative of Belgium to the United Nations Office at Geneva, in concluding remarks, thanked the Committee for having studied and examined the documentation submitted so thoroughly. The Belgian team had done a lot of work in trying to collect information and be more precise and explicit. Belgium valued this exercise very much.
For use of the information media; not an official record