Conference PaperPDF Available

Pre-trial detention in Belgium: looking for solutions to overcrowded prisons

Authors:
Nationaal Instituut voor Criminalistiek en Criminologie
Pre-trial detention in Belgium: looking
for solutions to overcrowded prisons
Eric Maes
Research seminar VUB
1 December 2011
P 2
Pre-trial detention: legal framework
Criteria for the application of remand custody
(art. 16 Pre-Trial Detention Act, 20
st
of July1990)
Serious indications of guilt
Absolute necessity for public security
Criminal act punishable with prison sentence of one year or more
In case of a maximum prison sentence of 15 years or less
(additional grounds)
:
Risk of recidivism
Risk of absconding
Risk of embezzlement of proof
Risk of collusion
Alternatives
(cf. freedom/release under conditions - bail):
same criteria as for remand
custody
Duration of remand custody detention/alternatives
Arrest warrant (remand custody):
valid for one month (renewable), in some cases 3 months ---
no absolute maximum length of remand custody
Freedom/release under conditions:
max. 3 months, renewable
P 3
Pre-trial detention: procedure
Police arrest
(public prosecution)
24 hours
(hearing + decision)
Investigating judge
(
onderzoeksrechter
)
arrest warrant
freedom/release
on conditions
first hearing: within 5 days
following hearings: every month or every 3 months
Judicial council
(
Raadkamer
)
Chamber of Indictment
(
Kamer van Inbeschuldigingstelling
)
APPEAL (formal)
Court of cassation
(
Hof van Cassatie
)
APPEAL
P 4
Prison population and pre-trial detention:
some figures
Evolution of the prison population in Belgium:
Overall
Between 1951 – 2010: from 4,300 in 1951 to more than 10,500 in 2010 (average daily population)
Belgium in a European perspective: prisoner rate per 100,000 inhabitants (101.4) or 93.1 (without
EM)
Remand prisoners
Remand prisoners
Remand prisoners
Between 1980
Between 1980
Between 1980-
-
-2009: more than doubled (but
2009: more than doubled (but
2009: more than doubled (but stabilisation
stabilisation
stabilisation during the last years:
during the last years:
during the last years: ±
±
±3,500)
3,500)
3,500)
Belgium in a European perspective
Belgium in a European perspective
Belgium in a European perspective
Prison overcrowding
Prison overcrowding
Prison overcrowding
Average daily prison population in 2010 (10,536)
Average daily prison population in 2010 (10,536)
Average daily prison population in 2010 (10,536)
average prison capacity (8,950)
average prison capacity (8,950)
average prison capacity (8,950)
over
over
over-
-
-occupancy rate 17%
occupancy rate 17%
occupancy rate 17%
Prison density
Prison density
Prison density:
:
: 128.4 prisoners
128.4 prisoners
128.4 prisoners per 100 places (one of the highest in Europe)
per 100 places (one of the highest in Europe)
per 100 places (one of the highest in Europe)
But not all prisons (mainly largest remand
But not all prisons (mainly largest remand
But not all prisons (mainly largest remand centres
centres
centres, with some of them more than 50%)
, with some of them more than 50%)
, with some of them more than 50%)
Evolution of
Evolution of
Evolution of alternatives to pre
alternatives to pre
alternatives to pre-
-
-trial detention
trial detention
trial detention:
:
: increase of incarcerations (arrest warrant)
increase of incarcerations (arrest warrant)
increase of incarcerations (arrest warrant)
and alternatives for pre
and alternatives for pre
and alternatives for pre-
-
-trial detention (freedom/release on conditions, 1995
trial detention (freedom/release on conditions, 1995
trial detention (freedom/release on conditions, 1995-
-
-2009)
2009)
2009)
P 5
Prison population (total): some figures
(Belgium)
Evolution of the average daily prison population
(total, 1951-2010)
4313
5549
5975 6095
6506 6510
5677
6454 6549
7693
9293
10536
8543
0
2000
4000
6000
8000
10000
12000
1950
1955
1960
1965
1970
1975
1980
1985
1990
1995
2000
2005
2010
Year
N
P 6
Prison population (total): some figures
(Europe)
Prison population per 100,000 inhabitants on 1st September 2009 (SPACE I)
6 , 4
1 9 , 7
3 6 , 9
5 6 , 8
6 7 , 0
6 7 , 2
6 7 , 4
6 7 ,5
6 8 , 4
7 4 , 2
7 7 , 2
7 9 , 0
8 0 , 5
8 1 , 4
8 8 , 1
8 9 ,3
9 8 , 4
9 8 , 8
1 0 0 ,8
1 0 1 ,4
1 0 3 ,1
1 0 4 ,4
1 0 6 ,6
1 1 0 ,3
1 1 0 ,8
1 1 9 ,4
1 2 0 ,1
1 2 3 ,2
1 2 5 ,7
1 3 1 ,8
1 3 7 ,6
138,5
1 3 9 ,9
1 4 0 ,7
1 5 2 ,3
156,2
1 5 6 ,5
1 6 1 ,6
1 6 4 ,1
1 6 9 ,4
1 7 3 ,1
1 8 9 ,7
2 1 0 ,4
2 2 0 ,3
2 3 0 ,1
2 4 7 ,6
2 6 5 ,2
3 0 9 ,5
3 1 8 ,5
4 5 2 ,1
6 2 0 ,6
0,0
100,0
200,0
300,0
400,0
500,0
600,0
700,0
S a n M a r in o
L i e c h te n s t e i n
I c e la n d
B H : F e d . B i H
B H : R e p . S r p s k a
S l o v e n i a
F in l a n d
D e n m a r k
N o r w a y
M o n a c o
S w e d e n
S w i t z e r l a n d
A n d o r r a
U K : N o r t h e rn I re l a n d
I r e l a n d
G e r m a n y
G r e e c e
N e t h e rl a n d s
A u s t r i a
B e l g iu m
F r a n c e
P o r t u g a l
I t a l y
C r o a t i a
C y p r u s
M a l t a
T h e F Y R O M a c e d o n i a
A r m e n i a
R o m a n i a
B u l g a r i a
L u x e m b o u r g
S p a in ( C a ta l o n i a )
S e r b i a
A lb a n i a
U K : E n g l a n d a n d W a l e s
U K : S c o t la n d
M o n t e n e g r o
T u r k e y
H u n g a r y
S lo v a k R e p u b li c
S p a in ( S ta t e A d m . )
M o ld o v a
C z e c h R e p u b l i c
P o l a n d
A z e r b a i j a n
L it h u a n ia
E s t o n i a
L a t v i a
U k r a i n e
G e o r g i a
R u s s i a n F e d e r a ti o n
Country
P r is o n p o p u la t io n r a t e
P 7
Prison population and pre-trial detention:
some figures
Evolution of the prison population
Evolution of the prison population
Evolution of the prison population in Belgium:
in Belgium:
in Belgium:
Overall
Overall
Overall
Between 1951
Between 1951
Between 1951
2009: from 4,300 in 1951 to more than 10,500 in 2010 (average d
2009: from 4,300 in 1951 to more than 10,500 in 2010 (average d
2009: from 4,300 in 1951 to more than 10,500 in 2010 (average daily population)
aily population)
aily population)
Belgium in a European perspective: prisoner rate per 100,000 inh
Belgium in a European perspective: prisoner rate per 100,000 inh
Belgium in a European perspective: prisoner rate per 100,000 inhabitants (101.4) or 93.1 (without
abitants (101.4) or 93.1 (without
abitants (101.4) or 93.1 (without
EM)
EM)
EM)
Remand prisoners
Between 1980-2009: more than doubled (but stabilisation during the last years: ± 3,500)
Belgium in a European perspective
Prison overcrowding
Prison overcrowding
Prison overcrowding
Average prison population in 2010 (10,536)
Average prison population in 2010 (10,536)
Average prison population in 2010 (10,536)
average prison capacity (8,950)
average prison capacity (8,950)
average prison capacity (8,950)
over
over
over-
-
-occupancy rate 17%
occupancy rate 17%
occupancy rate 17%
Prison density
Prison density
Prison density:
:
: 128.4 prisoners
128.4 prisoners
128.4 prisoners per 100 places (one of the highest in Europe)
per 100 places (one of the highest in Europe)
per 100 places (one of the highest in Europe)
But not all prisons (mainly largest remand
But not all prisons (mainly largest remand
But not all prisons (mainly largest remand centres
centres
centres, with some of them more than 50%)
, with some of them more than 50%)
, with some of them more than 50%)
Evolution of
Evolution of
Evolution of alternatives to pre
alternatives to pre
alternatives to pre-
-
-trial detention
trial detention
trial detention:
:
: increase of incarcerations (arrest warrant)
increase of incarcerations (arrest warrant)
increase of incarcerations (arrest warrant)
and alternatives for pre
and alternatives for pre
and alternatives for pre-
-
-trial detention (freedom/release on conditions, 1995
trial detention (freedom/release on conditions, 1995
trial detention (freedom/release on conditions, 1995-
-
-2009)
2009)
2009)
P 8
Prison population and pre-trial detention
(remand prisoners): some figures (Belgium)
Evolution of the average daily prison population,
according to legal status (1980-2005, and 1st of March 2010)
and the EM-population (on the 1st of March, 1999-2010)
1438
3712
2544
5606
529
1089
1005
154
928
0
1000
2000
3000
4000
5000
6000
7000
1980
1985
1990
1995
2000
2005
2010
Year
N
Rema nd prisoners Sentence d pris oners
Menta lly disordere d offenders Other
EM
P 9
Prison population and pre-trial detention
(remand prisoners): some figures (Europe)
Rate of prisoners not serving a final sentence per 100,000 inhabitants (excl. 'other cases') on 1
st
September 2009 (SPACE I)
3,2
8,7
10 ,3
10 ,8
11 ,0
11 ,2
12 ,8
13 ,0
13 ,9
16 ,3
16 ,7
18 ,4
18 ,8
20 ,1
21 ,9
23 ,2
24 ,3
24 ,6
25 ,9
25 ,9
27 ,3
29 ,2
29 ,5
30 ,0
30 ,6
30 ,7
31 ,1
32 ,9
33 ,2
34 ,7
35 ,5
36 ,0
39 ,0
41 ,3
45 ,2
46 ,8
47 ,3
50 ,0
50 ,9
53 ,3
59 ,7
62 ,4
72 ,2
76 ,4
83 ,5
0,0
10,0
20,0
30,0
40,0
50,0
60,0
70,0
80,0
90,0
100,0
Sa n M ari no
BH : F ed . BiH
Th e FY RO M ac ed o nia
Finland
Icela n d
Liec htenstein
Irela n d
BH : R ep . Sr psk a
Germa n y
No r w ay
Sw ed en
Ro m ani a
Slovenia
Portuga l
Bu lgaria
Mold o va
Fr anc e
UK : En glan d a n d W ales
De nmar k
Polan d
Cr o atia
Sp ain (Ca talo n ia )
Belgiu m
Slova k R ep ublic
UK : S c otland
UK : North er n Ir elan d
A zer b aij an
A r men ia
Nether la n d s
Serb ia
A nd o r ra
Sp ain (State A dm.)
Sw itzer l an d
Lith u ania
Monac o
Cyp r u s
A lb an ia
Hu n g ar y
Italy
Luxem b o u rg
Latv ia
Estoni a
Uk r ai ne
Malta
Tu r key
Country
Rat e p e r 10 0,00 0 in h abitan ts
P 10
Prison population and prison
overcrowding: some figures
Evolution of the prison population
Evolution of the prison population
Evolution of the prison population in Belgium:
in Belgium:
in Belgium:
Overall
Overall
Overall
Between 1950
Between 1950
Between 1950
2009: from 4,300 in 1951 to more than 10,500 in 2010 (average d
2009: from 4,300 in 1951 to more than 10,500 in 2010 (average d
2009: from 4,300 in 1951 to more than 10,500 in 2010 (average daily population)
aily population)
aily population)
Belgium in a European perspective: prisoner rate per 100,000 inh
Belgium in a European perspective: prisoner rate per 100,000 inh
Belgium in a European perspective: prisoner rate per 100,000 inhabitants (101.4) or 93.1 (without
abitants (101.4) or 93.1 (without
abitants (101.4) or 93.1 (without
EM)
EM)
EM)
Remand prisoners
Remand prisoners
Remand prisoners
Between 1980
Between 1980
Between 1980-
-
-2009: more than doubled (but
2009: more than doubled (but
2009: more than doubled (but stabilisation
stabilisation
stabilisation during the last years:
during the last years:
during the last years: ±
±
±3,500)
3,500)
3,500)
Belgium in a European perspective
Belgium in a European perspective
Belgium in a European perspective
Prison overcrowding
Average prison population in 2010 (10,536) average prison capacity (8,950):
over-occupancy rate 17%
Prison density: 128.4 prisoners per 100 places (one of the highest in Europe)
But not all prisons (mainly largest remand centres, with some of them more than 50% overcrowding)
Evolution of
Evolution of
Evolution of alternatives to pre
alternatives to pre
alternatives to pre-
-
-trial detention
trial detention
trial detention:
:
: increase of incarcerations (arrest warrant)
increase of incarcerations (arrest warrant)
increase of incarcerations (arrest warrant)
and alternatives for pre
and alternatives for pre
and alternatives for pre-
-
-trial detention (freedom/release on conditions, 1995
trial detention (freedom/release on conditions, 1995
trial detention (freedom/release on conditions, 1995-
-
-2009)
2009)
2009)
P 11
Prison population and prison
overcrowding: some figures (Europe)
Prison density per 100 places on 1st September 2009 (SPACE I)
1 5 7 , 9
1 5 3 , 0
148,2
147,9
1 3 9 , 7
1 3 3 , 4
1 2 9 , 7
1 2 8 , 4
1 2 4 , 3
1 2 3 , 3
1 1 3 , 6
1 1 0 , 4
106,8
1 0 3 , 4
1 0 3 , 3
102,9
102,8
1 0 1 , 2
9 9 , 4
9 8 , 2
9 7 , 8
9 7 , 2
9 6 , 9
9 6 , 4
9 4 , 9
9 4 , 3
9 3 , 1
9 2 , 7
9 2 , 2
9 1 , 7
9 1 , 5
9 1 , 1
9 1 , 0
9 0 , 7
8 8 , 6
8 7 , 8
8 5 , 7
8 2 , 0
7 9 , 2
7 9 , 0
7 7 , 7
7 3 , 2
5 4 , 4
3 5 , 0
2 8 , 4
1 6 , 7
0,0
20,0
40,0
60,0
80,0
100,0
120,0
140,0
160,0
180,0
S e r b i a
S p ai n ( St at e A d m .)
It a l y
C y p ru s
C r o a t i a
H u n g ar y
Ic e l a n d
B e l g i u m
S l o v e n i a
F r a n c e
C ze c h R ep u b lic
T u r k e y
U K : S c o t la n d
S w e d e n
A l b an i a
M a l t a
T h e F YR O M a c ed o n ia
F i n l a n d
P o l a n d
U K : E n g la n d a n d W a le s
Ir e l a n d
E s t o n i a
Lu x e m b o u r g
B H : Fe d . B i H
B u l g a r i a
S p ai n ( C a ta lo n ia )
P o r t u g a l
U k r a i n e
G e r m a n y
N o r w a y
Li th u a n i a
D e n m a r k
S w i t z e r l a n d
A r m e n i a
S lo v ak R ep u b lic
La t v i a
B H : R ep . S r p s ka
U K : N o rth er n Ir e la n d
N e t h e r l a n d s
R o m a n i a
A z e r b a ij a n
M o l d o v a
A n d o r r a
L ie c h t e n s t e i n
M o n a c o
S an M a r i n o
A u s t r ia
G e o r g i a
G r e e c e
M o n t e n e g r o
R u ss ia n F ed e r a ti o n
Country
P ri so n d e n sit y p e r 1 0 0 p l a ce s
P 12
Prison population and prison
overcrowding: some figures (Belgium)
Over-occupancy rate of Belgian prisons (year 2010)
(average daily prison population <> average capacity)
-20,0%
-10,0%
0,0%
10,0%
20,0%
30,0%
40,0%
50,0%
60,0%
70,0%
Ie p e r
Din ant
An twe rpen
Fo re st /Vo r st
J am io u xl
Na m ur
Me c h e le n
Ve r vi e rs
Lantin
Ge n t
Mo n s
Leuve n Hulp
Brugge
St .G i ll e s/St . Gi ll i s
D e nd e rm o n de
Be r ke n da e l
Ni ve lles
Huy
Turn h o u t
Hasse lt N ie u w
Arl o n
Ou d e n aard e
Tourn ai
Ru i se le d e
Leuve n Ce n traal
H oo gst ra te n
It t re
Paifve
Ande n ne
W or t e l-Ti lb u rg
Mar n e ffe
Me r ksplas
St .H u be r t
Prison
%
P 13
Prison population and pre-trial detention:
some figures
Evolution of the prison population
Evolution of the prison population
Evolution of the prison population in Belgium:
in Belgium:
in Belgium:
Overall
Overall
Overall
Between 1950
Between 1950
Between 1950
2009: from 4,300 in 1951 to more than 10,500 in 2010 (average d
2009: from 4,300 in 1951 to more than 10,500 in 2010 (average d
2009: from 4,300 in 1951 to more than 10,500 in 2010 (average daily population)
aily population)
aily population)
Belgium in a European perspective: prisoner rate per 100,000 inh
Belgium in a European perspective: prisoner rate per 100,000 inh
Belgium in a European perspective: prisoner rate per 100,000 inhabitants (101.4) or 93.1 (without
abitants (101.4) or 93.1 (without
abitants (101.4) or 93.1 (without
EM)
EM)
EM)
Remand prisoners
Remand prisoners
Remand prisoners
Between 1980
Between 1980
Between 1980-
-
-2009: more than doubled (but
2009: more than doubled (but
2009: more than doubled (but stabilisation
stabilisation
stabilisation during the last years:
during the last years:
during the last years: ±
±
±3,500)
3,500)
3,500)
Belgium in a European perspective
Belgium in a European perspective
Belgium in a European perspective
Prison overcrowding
Prison overcrowding
Prison overcrowding
Average prison population in 2010 (10,536)
Average prison population in 2010 (10,536)
Average prison population in 2010 (10,536)
average prison capacity (8,950)
average prison capacity (8,950)
average prison capacity (8,950)
over
over
over-
-
-occupancy rate 17%
occupancy rate 17%
occupancy rate 17%
Prison density
Prison density
Prison density: 128.4 prisoners per 100 places (one of the highest in Europe)
: 128.4 prisoners per 100 places (one of the highest in Europe)
: 128.4 prisoners per 100 places (one of the highest in Europe)
But not all prisons (mainly largest remand
But not all prisons (mainly largest remand
But not all prisons (mainly largest remand centres
centres
centres, with some of them more than 50%)
, with some of them more than 50%)
, with some of them more than 50%)
Evolution of alternatives to pre-trial detention: increasing numbers of incarcerations (arrest
warrant) AND of alternatives for pre-trial detention (freedom/release on conditions, 1995-2009)
P 14
Pre-trial detention and alternatives: some
figures (Belgium)
Evolution of freedom/release on conditions,
in relation to the number of incarcerations (remand custody) and the prison
population (on the 1st of March) in remand custody (1995-2009)
10616 10469
8997 9212
9992 9608
10865 10805 11053 11194
11954 11916 12042 12240
609
887
1952
2405
2263
2898
3181
3460
3713
4107
4563
4917
4949
286 3 286 2 27 73 25 54 3 023 2 951 3238 3 680 361 4 3550 35 30 3473 35 27 3557 3 712
0
200 0
400 0
600 0
800 0
10000
12000
14000
199 5 199 6 199 7 1998 1999 2000 2001 2 002 2003 200 4 200 5 2006 2007 20 08 20 09 20 10
Year
N
Incarcera tions freedom/releas e on conditions (flow)
Pri son pop. RC Linear (Inca rcerations )
Linear (freedom/release on condi tions (fl ow))
P 15
Pre-trial detention and alternatives: some
recent research topics
1. Threshold for application of pre-trial detention
(Marc Verwilghen, 2001)
2. Exhaustive lists of offences (‘positive’ vs. ‘negative’ list)
(Laurette Onkelinx,
2004-2005)
3. Duration of pre-trial detention
(Marc Verwilghen, 2001, Laurette Onkelinx, 2004-
2005)
4. Electronic monitoring as an alternative to pre-trial detention
(Jo
Vandeurzen/Stefaan De Clerck, 2009)
Nationaal Instituut voor Criminalistiek en Criminologie
1. Increasing the threshold for
the application of pre-trial
detention
P 17
1. Threshold: research question and
methodology
Threshold for the application of pre-trial detention
(possible sentence
length)
Actual situation: 1 year of imprisonment
Simulation research (3 years)
Data: pre-trial detention 1998
(source: database SIDIS)
Unit of analysis: number of incarcerations
(as pre-trial detainee)
P 18
1. Threshold: methodology
INCARCERATIONS
ARREST WARRANTS
(remand custody)
UNITS OF ANALYSIS PRISONER Title 1
DETENTION 1 Title 2
Title n
Title 1
DETENTION 2 Title 2
Title n
Title 1
DETENTION n Title 2
Title n
P 19
1. Threshold: evaluation
Hypothetical reduction of the number of incarcerations with 3% (year
1998)
thus, almost no effect on the prison population (remand custody)
Automatism that risks to conflict with other interests protected by the
legislator
(cf. ‘assault and battery’ <> avoiding recidivism/protection of victims)
Possible ‘perverse’ effect:
increasing the maximum penalty for certain offences
=> Differentiated ‘thresholds’?
Nationaal Instituut voor Criminalistiek en Criminologie
2. Construction of
(positive/negative) lists of offenses
P 21
2. List of offences: research question and
methodology
Introduction of lists of offenses:
‘Positive’ list (pre-trial detention possible)
‘Negative’ list (pre-trial detention NOT possible)
Methodology:
Literature review + interviews
Quantitative analysis (extraction database):
Data: pre-trial detention year 2003
(source: database SIDIS-GRIFFIE)
Unit of analysis:
number of arrest warrants executed in prison during the year
concerned
P 22
2. List of offences: methodology
INCARCERATIONS
ARREST WARRANTS
(remand custody)
UNITS OF ANALYSIS PRISONER Title 1
DETENTION 1 Title 2
Title n
Title 1
DETENTION 2 Title 2
Title n
Title 1
DETENTION n Title 2
Title n
P 23
2. List of offences: some results
Hypothetical reduction of the number of arrest warrants with 60%
(if non-violent offenses excluded from the application of pre-trial detention)
= -55% average daily population PTD (or appr. 1,000 prisoners)
N
arrest warrants
Judicial district
% non-violent
offences
% violent
offences
Brussel 63,0% 37,0%
Leuven 72,8% 27,2%
Nijvel 30,8% 69,2%
Antwerpen 56,6% 43,4%
Charleroi 48,8% 51,2%
Doornik 49,0% 51,0%
Gent 64,1% 35,9%
Dendermonde 75,4% 24,6%
Brugge 72,3% 27,7%
Veurne 74,7% 25,3%
Ieper 74,5% 25,5%
Luik 53,9% 46,1%
Verviers 45,9% 54,1%
Hasselt 71,3% 28,7%
Dinant 40,7% 59,3%
Total 59,9% 40,1%
P 24
2. List of offences: evaluation
In general:
Possible impact on the size of the prison population
BUT: only a real effect in case of a RADICAL selection (of offenses)
SOCIALLY DESIRABLE AND POLITICALLY ACHIEVABLE ??
Some observations:
Technique already in use in other Belgian legal frameworks
(cf. telephone tap, pro-active police investigation, DNA-database “sentenced offenders”,…)
risk to adopt indiscriminately already existing lists (cf. ‘légiférer par référence’)
In any case: necessary to evaluate the effect of the techniques used (lists of offences
and/or threshold)
Construction of lists requires meticulous research + continued consideration
Nationaal Instituut voor Criminalistiek en Criminologie
3. Limiting the length of pre-trial
detention
P 26
3a. Length PTD:
methodology research I (2001)
Data: pre-trial detention 1996-2000 (source: database SIDIS)
Unit of analysis: number of incarcerations (as pre-trial detainee)
Calculation of the length of pre-trial detention
Concluded vs. non-concluded (date of analysis)
Concluded terms: release from prison or transition to a definitive legal status
Criminal offenses: ‘violent-’ vs. ‘other’ (non-violent) offenses
Simulation study: scenarios limitation to 3, 4 or 6 months for non-
violent offenses
P 27
3a. Length PTD:
results simulation - research I (2001)
Table: Possible “saving” in detention capacity according to three scenarios of limiting the
length of pre-trial detention for the category ‘other’ criminal offences
Scenario
Average length of time the
period was exceeded (in days)*
Number of detentions
above threshold
(avg./year)
Saving with respect to
average daily
population
> 3 months 84.4 1,452.0 340.4
> 4 months 87.5 985.4 239.5
> 6 months 104.7 433.8 126.2
* To obtain the real average length of pre-trial detention for these protracted detentions (> 3, 4 or 6 months),
the average length of time the period was exceeded must be increased by the respective maximum limit, in
other words, by 90 days (3 months), 120 days (4 months) or 180 days (6 months).
P 28
3b. Length PTD:
methodology research II (2004-2005)
Literature review + interviews
Quantitative analysis data-extraction:
Data:
pre-trial detention year 2003 (source: database SIDIS-GRIFFIE)
Unit of analysis:
arrest warrants executed in the year 2003
Calculation length of pre-trial detention:
Length: date of execution arrest warrant date of lifting arrest
warrant/release or date of final judicial decision during pre-trial detention
(internment, suspension)
Underestimation: max. till the moment of dispensation of justice (‘regeling
rechtspleging’) + some periods of PTD still running at the time of data-
extraction / sometimes no registration of the last decision taken
Criminal offenses: simulations according the different scenarios
P 29
3b. Length PTD:
results simulation - research II (2004-2005)
Table: Possible ‘saving’ in detention capacity according to different scenarios of limiting the length of pre-trial
detention (year 2003)
Scenarios
N arrest warrants
POP. 'saved'
% POP 'saved'**
For all offences
3,724
610.2
34.1
Only for non-violent offences
2,098
311.7
17.4
All, except 4 types of violent offences ***
7,012
345.5
19.3
Only drugs, without any other criminal offence
599
79.1
4.4
Only theft, without any other criminal offense
333
39.8
2.2
Scenarios
N arrest warrants
POP. 'saved'
% POP 'saved'**
For all offences
2,246
354.5
19.8
Only for non-violent offences
1,212
169.3
9.5
All, except 4 types of violent offences ***
1,339
187.7
10.5
Only drugs, without any other criminal offence
326
39.4
2.2
Only theft, without any other criminal offense
140
19.4
1.1
* Maximally till the moment of dispensation of justice (by the judicial council)
** Percentages calculated on the basis of an estimated total prison population (pre-trial detention) of 1,791.1
*** Homicide, rape, violent theft and hostage
Limitation PTD to 67 days* (3
rd
appearance before the judicial council)
Limitation PTD to 98 days* (4
th
appearance before the judicial council)
P 30
3a/b. Length PTD: general evaluation
Advantages:
Possible impact on the size of prison population
(BUT only in case of an observable effect on the (length of the) final sentence, in case of acquittal, or
if the date of parole eligibility is not exceeded)
Stimulus for a faster conclusion of the criminal (investigation) procedure
Protection of the suspect (avoiding unnecessary periods of PTD + more legal security)
Some observations:
‘Real’ effect (cf. supra) OR simply a displacement (‘saved’ detention time to be served
after the pronouncement of the final (prison) sentence)?
Tension between abstract legal norms – concrete cases (introduction of ‘exceptions’)
Risk of automatic release without any further judicial appreciation of the case
Risk to fully exploit the maximum term (legitimation for a continuation of PTD)
Situation of illegal aliens in pre-trial detention?
Only guaranteed in case of very low maximum lengths for PTD
(cf. average length of PTD + small % > 3 months --- cf. situation in other European countries)
Legal reform OR transforming the use of PTD/criminal investigation
procedures in practice?
Nationaal Instituut voor Criminalistiek en Criminologie
4. Introducing electronic
monitoring as an alternative to
pre-trial detention
P 32
4. EM: object and context of the research
Research object : Explorative study on the possibility of application of EM within the
framework of remand custody (duration: March-December 2009)
General policy note of the Minister of Justice (Parl. Doc., Chamber of Representatives, 2008-
2009, n°52 1529/016, p. 71): “(…) the use of electronic monitoring, the introduction of modern
techniques like GPS-tracking, as an alternative for remand custody”.
Current application of EM in the Belgian penal landscape (exclusively in the domain of the
execution of prison sentences)
(a total of) prison sentences up to 3 years: prison service (EM as ‘front door’-
strategy)
prison sentences of more than 3 years: courts for the execution of sentences (EM
as ‘back door’-strategy)
? EM within others stages of the penal system, i.c. remand custody ?
P 33
4. EM: research questions
Quantitative:
To what extent EM would be applied in the context of remand custody
(within a perspective, for example, of reducing the current prison
population)?
Qualitative:
In which type of cases EM would be applied?
Which model of EM would be preferred?
What are the kind of contra-indications preventing to choose EM?
What are the other aspects to be taken into account (legal framework
and practical modalities)?
P 34
4. EM: research methodology
International literature review + visits abroad
Round table discussions
(Dutch + French: investigating judges, judicial councils,
chambers of indictment, public prosecutors, lawyers)
Analysis of judicial files/questionnaires
Judicial districts: Antwerp (53 Dutch files), Brussels (24 Dutch files + 86 French files)
and Liege (42 French files)
Judicial authorities: investigating judges (41 Dutch files + 57 French files), judicial councils
(14 Dutch files + 22 French files), chambers of indictment (22 Dutch files + 49 French
files)
Total: 205 files
(77 Dutch files + 128 French files)
Analysis of the current application of remand custody (2008) according to certain
characteristics, based on a data-extraction from the prison service’s database
(SIDIS/GRIFFIE)
P 35
4. EM: research methodology
Table: Overview of judicial files (number of cases) screened with respect to legal instance,
district/jurisdiction and linguistic register
District IJ JC CI Total French/Dutch*
Liege 19 - 23 42
Brussels (French) 38 22 26 86 128
Brussels (Dutch) 24 - (24)** 24
Antwerp 17 14 22 53 77
Total 98 36 71 205
98 107
* The difference in the number of Dutch and French language judicial files is explained by diverse
factors such as the willingness to participate in the research, urgent deadlines in the context of
the research phases, and incomplete detailed information concerning a number of cases.
** With all the participating judicial actors there was a face-to-face contact in order to fill out the
registration form, except with a member of the Dutch-speaking chamber of indictment of the
judicial district of Brussels who requested to fill out the registration form himself. However, due
to a lack of sufficient detailed information on certain aspects we were asking for, these cases
were not used in further analyses.
P 36
4. EM: general conclusions
A possible policy decision to introduce EM in the context of remand
custody has to be defined as “a political measure requiring (without any
doubt) an important additional budgetary effort, which:
-) will probably have a relatively low impact – certainly not substantial
on the number of pre-trial detainees in our prisons, and
) moreover raises important
) moreover raises important
) moreover raises important legal, practical and organizational
legal, practical and organizational
legal, practical and organizational
questions.
questions.
questions.
However, in certain cases EM can be considered
However, in certain cases EM can be considered
However, in certain cases EM can be considered
[
[
[
] as a potentially
] as a potentially
] as a potentially
valuable initiative from a humane, ethical and human rights poin
valuable initiative from a humane, ethical and human rights poin
valuable initiative from a humane, ethical and human rights point of view,
t of view,
t of view,
in the sense of a
in the sense of a
in the sense of a limitation of the harmful effects of detention
limitation of the harmful effects of detention
limitation of the harmful effects of detention and a
and a
and a
better respect of the legal principle of the presumption of
better respect of the legal principle of the presumption of
better respect of the legal principle of the presumption of
innocence.
innocence.
innocence.
P 37
4. EM: general conclusion
Effect of EM on the size of the population on remand custody?
Relatively low impact (?), because:
Estimated application rate of EM within the framework of remand custody (25%,
investigating judges) does not necessarily lead to an equivalent reduction of the
population on remand custody (stock):
o investigating judges participating in the reasearch may be more prepared to apply EM than
others
o possible use of EM in cases of ‘freedom/release under conditions’ (alternatives), or even
freedom without any condition (= additional technique of control) + probably more
revocations due to a more effective control
o duration of remand custody ‘saved’ by EM = unclear
o sometimes, release from remand custody is not possible because of other detention titles
present (e.g. execution of former convictions to prison sentence)
o in some cases EM will only be applied if other, specific conditions are satisfied (e.g. detention
in asylum, application of GPS-technology, …)
o the opinion of the investigating judges might be a projection of possible future decisions to be
taken (decision to release, with or without conditions)
o If the term under EM does not have an impact on the length of the final prison sentence, EM
will only have some effect on the size of the prison population when EM is considered as
‘detention time served’ (in remand custody)
P 38
4. EM: general conclusion
Effect of EM on the size of the population on remand custody?
Table
:
Overview of the justifications for the warrant
of detention
and not making use of
electronic monitoring (Dutch-speaking cases in which electronic monitoring was not considered)
Criteria
Justification for warrant of
detention Justification for not applying EM
Severity of the offence --- 33.9%
Risk of collusion 41.3% 33.9%
Risk of embezzlement 9.5% 12.9%
Risk of escaping 74.6% 75.8%
Risk of recidivism 66.7% 56.5%
Illegal residency 58.7% 61.3%
* N=62 (justification for arrest warrants)
** N=63 (justification for not applying electronic monitoring)
Table: Overview of the justifications for the warrant of detention and not making use of
electronic monitoring (French-speaking cases in which electronic monitoring was not considered)
Criteria
Justification for warrant of
detention*
Justification for not applying
EM*
Severity of the offence --- 53.6%
Risk of collusion 41.2% 38.1%
Risk of embezzlement 21.6% 20.6%
Risk of escaping 40.2% 40.2%
Risk of recidivism 73.2% 73.2%
Illegal residency 24.7% 24.7%
* Percentages calculated on 97 cases, because of the fact that in 10 cases information on the justification for
the warrant of detention was not available.
P 39
4. EM: General conclusion
EM as an alternative to pre-trial detention would require an
additional budgetary effort
Possible financial savings
(in case of a reduced prison population in remand
custody)
:
Variable costs: food, clothing, wages for prison labour
BUT: stable costs (prison infrastructure and personnel)
Cf. probably low impact on the size of the prison population
Cf. dispersion of prisoners in remand custody all over the country
ADDITIONAL costs
(for the application of EM)
:
EM-infrastructure (technology)
Personnel (probation staff)
P 40
4. EM: general conclusions
A possible policy decision to introduce EM in the context of rem
A possible policy decision to introduce EM in the context of rem
A possible policy decision to introduce EM in the context of remand
and
and
custody has to be defined as
custody has to be defined as
custody has to be defined as “a political measure requiring (without any
requiring (without any
requiring (without any
doubt) an important
doubt) an important
doubt) an important additional budgetary effort
additional budgetary effort
additional budgetary effort,
,
,which:
-
-
-) will probably have a
) will probably have a
) will probably have a relatively low impact
relatively low impact
relatively low impact
certainly not substantial
certainly not substantial
certainly not substantial
on the number of pre
on the number of pre
on the number of pre-
-
-trial detainees
trial detainees
trial detainees in our prisons, and
in our prisons, and
in our prisons, and
) moreover
) moreover
) moreover raises important legal, practical and organizational
questions.
However, in certain cases EM can be considered
However, in certain cases EM can be considered
However, in certain cases EM can be considered
[
[
[
] as a potentially
] as a potentially
] as a potentially
valuable initiative from a humane, ethical and human rights poin
valuable initiative from a humane, ethical and human rights poin
valuable initiative from a humane, ethical and human rights point of view,
t of view,
t of view,
in the sense of a
in the sense of a
in the sense of a limitation of the harmful effects of detention
limitation of the harmful effects of detention
limitation of the harmful effects of detention and a
and a
and a
better respect of the legal principle of the presumption of
better respect of the legal principle of the presumption of
better respect of the legal principle of the presumption of
innocence.
innocence.
innocence.
P 41
4. EM: three models of EM
1) The "traditional" model
(cf. the regime is applied in the context of the execution of prison sentences)
2) The "house arrest" model
3) The "GPS" model
Which model of EM would be preferred?
Each model has the potential to be applied
BUT the legal consequences vary according to the chosen EM
model
P 42
4. EM: legal consequences
EM as a specific modality of the execution of remand custody
The "house arrest" model
The "traditional" model (?)
EM = deprivation of liberty (so, the legal framework is modeled upon the system
of remand custody)
EM as a particular form of freedom under conditions or release
under conditions
The « GPS » model
EM = restricted liberty (so, the legal framework is modeled upon the system of
freedom under conditions or release under conditions)
P 43
4. EM: general conclusions
A possible policy decision to introduce EM in the context of rem
A possible policy decision to introduce EM in the context of rem
A possible policy decision to introduce EM in the context of remand
and
and
custody has to be defined as
custody has to be defined as
custody has to be defined as
a political measure requiring (without any
a political measure requiring (without any
a political measure requiring (without any
doubt) an important
doubt) an important
doubt) an important additional budgetary effort
additional budgetary effort
additional budgetary effort, which:
, which:
, which:
-
-
-) will probably have a
) will probably have a
) will probably have a relatively low impact
relatively low impact
relatively low impact
certainly not substantial
certainly not substantial
certainly not substantial
on the number of pre
on the number of pre
on the number of pre-
-
-trial detainees
trial detainees
trial detainees in our prisons, and
in our prisons, and
in our prisons, and
) moreover raises important
) moreover raises important
) moreover raises important legal, practical and organizational
legal, practical and organizational
legal, practical and organizational
questions.
questions.
questions.
However, in certain cases EM can be considered “[…] as a potentially
valuable initiative from a humane, ethical and human rights point of view,
in the sense of a limitation of the harmful effects of detention and a
better respect of the legal principle of the presumption of
innocence.
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