Prison and other punishments

New walk Ghent

Modalities during implementation

1. After a certain period of time that you have served your prison sentence (the legal time requirement must be fulfilled) you have the right to request a modality. If you have been sentenced to a prison sentence of three years or less, please submit your request to the criminal enforcement judge (hereinafter CEJ). If you have been sentenced to more than three years, the criminal enforcement court (hereinafter CEC) will deal with your request. Possible modalities are limited detention, electronic surveillance and conditional release. Temporary release with a view to removal from the territory is possible for a limited category of prisoners. You can obtain provisional release for medical reasons at the CEJ. A permit to leave prison temporarily, penitentiary leave and sentence interruption can only be granted by the Minister of Justice.

2. Request

You can apply for limited detention and electronic supervision via a request to the registry of the prison. You must also initiate the conditional release procedure yourself in this way. You will be informed about this by the prison well in advance. The detainee usually has to stand up for himself, so it is recommended that you be assisted by a lawyer, so that you do not miss an opportunity. You will in any case have to draw up a probation plan.

Limited detention gives you the opportunity to regularly leave the penal institution for a maximum of 12 hours a day. This allows you to maintain your social contacts and job opportunities, which is very important for your reintegration into society.

3. Decision

The CEC will assign the modality if there are no counter-indications. These are listed in the law. A risk of relapse, flight hazard or risk of harassing the victim are some reasons for refusal.

4. In principle, sessions in the CEC take place behind closed doors. The verdict is public. Sessions are often held in prison. The prisoner, his lawyer, the Public Prosecution Service the prison director and possibly the victim are heard. After an application, the prison warden and the Public Prosecution Service must always give advice. CEC takes this advice into account, but is not bound by it. The CEC hears the prisoner and his counsel and the Public Prosecution Service at the hearing. As a prisoner, you can be assisted by a lawyer. Your own presence at the hearing is always required (Court of Cassation 7 November 2007, P.07.1440.F).

5. When allocating a modality, the CEC imposes a number of fixed conditions, such as not committing any criminal offenses and having a permanent address. If she deems it necessary, she also determines special conditions such as not coming into contact with the victim. The victim and the Public Prosecution Service can comment on this at the hearing. If the Public Prosecution Service asks for conditions in the interest of the victim, it must always explain this.

6. Changes and control

Only CEC can change these conditions. This can be done at the request of the convicted person, the Public Prosecution Service or the prison director. When it comes to conditions that concern the victim, they will be heard about it.

7. During the implementation of your modality, you will be accompanied by a justice assistant, who will report periodically to CEC. The police and the Public Prosecution Service ensure that you comply with the conditions. In a number of cases, the Public Prosecution Service can request the CEC to revoke or suspend. These cases are legally defined and include: when you committed a crime during the probation period; when you pose a serious threat to the physical or psychological integrity of a third party; when the imposed special conditions are not complied with; when the convicted person does not respond to summons; if you do not report your change of address; if you do not comply with the program for the concrete implementation of the limited detention or electronic supervision (Article 64 of the Act of 17 May 2006 on external legal position). In these cases, the Public Prosecution Service can even order provisional arrest. The CEC must then decide within seven days whether the modality will be suspended.

8. The Public Prosecution Service brings the case, but it is still the CEC who decides. This takes place after a hearing in which the prisoner and his / her lawyer, the Public Prosecution Service and possibly the victim are heard. If the court decides to revoke or suspend you, you will be incarcerated again. The court will determine the portion of the custodial sentence that you still have to serve.

How far does the powers of the Public Prosecution Service and CEC extend?

The Public Prosecution Service has an advisory power in the award procedure. CEC decides and must consider the advice. If justified, that decision can go against the advice. Moreover, CEC cannot just freely decide whether to grant or refuse modalities. The law prescribes that the court must grant it, if there are no contraindications. What these contraindications relate to is exhaustively listed in the law (in Article 47 §1 of the External Legal Position Act). In principle, the court must grant you the modality in the absence of a counter-indication. But because these are broadly described in the law, CEC can always raise a counter-indication. A possible counter-indication is, for example, “the risk of committing new serious criminal offenses”. How do you determine a risk and what is serious? The reports of the prison and the Public Prosecution Service serve as a guideline, yet a decision by the CEC will not be completely objective.

9. General supervision of the implementation takes place through a collaboration between CEC, the courts of justice, the Public Prosecution Service, the police and, if necessary, the National Center for Electronic Supervision. The reasons why the Public Prosecution Service would ask for a revocation are also registered in the law. CEC decides to revoke or suspend after a hearing in which you and your lawyer and the Public Prosecution Service are heard. After a revocation or suspension, the CEC decides how much of the original custodial sentence you still have to serve. CEC has a lot of freedom in this, there is no conversion mechanism provided for in the law. The judge must take into account the period during which the probation period went well and the convicted his/her efforts to comply with the conditions.

Alternative Punishments

10. For a long time, imprisonment or a fine was the punishment par excellence. Alternative punishments have been on the rise in recent years: community service, electronic supervision and autonomous probation punishment. The text below mainly focuses on the role of the Public Prosecution Service in the execution of these sentences.

11. Modalities in the allocation

An alternative punishment can be imposed at your own request, at the request of the Public Prosecution Service, or at the initiative of the judge. The convicted person must explicitly agree to the alternative punishment. The judge must always comply with a number of requirements: he must motivate his decision, determine the duration and determine the substitute imprisonment or fine. In case of community service he can give instructions about its content.

He must give indications when assigning probation.

12. If you are sentenced to community service, you will receive further assistance from a judicial assistant. You make an agreement here with the concrete details and all further agreements. The judicial assistant will listen to your comments and always take the judge's instructions into account. In principle, you exercise the community service order in your free time and therefore not during school hours or during your professional activity.

The concrete interpretation of the probation is determined by the probation committee. He or she must respect the instructions of the judge.

13. Control

Counseling during community service and probation is provided by the judicial assistant. This person reports any problems to the probation committee, which carries out the ultimate supervision. If the punishment is not or not properly executed, the committee will hold a hearing about this. It is decided whether the non-execution is due to the person being punished. They send the report of the hearing to the convicted person and his lawyer, the judicial assistant and the Public Prosecution Service.

14. The Public Prosecution Service will decide on the basis of that report whether the alternative punishment, as laid down in the judgment, must be carried out. This is done without adversarial debate and without the possibility of recourse. The Public Prosecution Service decides autonomously how much of the replacement punishment must be carried out. The part that has already been carried out must be taken into account, but no conversion mechanism is provided.

15. No judicial assistant or probation committee is involved in electronic surveillance. It is the National Center for Electronic Supervision and the Public Prosecution Service that exercise control here. The Center reports the problems to the Public Prosecution Service. In this case too, the Public Prosecution Service freely decides on the execution of the replacement prison sentence. Here, however, a conversion system is provided to determine how much of the sentence still has to be executed: one day Electronic surveillance equals one day in prison.