Conditions in detention facilities

Belgium

Country Report: Conditions in detention facilities Last updated: 30/11/20

Author

Vluchtelingenwerk Vlaanderen Visit Website

So far, the legal provisions relating to detention under the recast Reception Conditions Directive have not been transposed. The failure of the recent reform to transpose these provisions is a missed opportunity in this regard.

The 2002 Royal Decree on Closed Centres provides for the legal regime and internal organisational guidelines. The closed centres are managed by the Immigration Office, not by Fedasil as are the open reception centres. The “Transit Group”, a group of several Belgian human rights organisations, released a report on the state of closed centres for administrative detention in Belgium. Caritas, Vluchtelingenwerk Vlaanderen, Ciré and others worked together to produce this report, which is the first of its kind in 10 years.[1] In 2019 the same group also published a report focusing on vulnerability in detention.[2] It does not concern the detention conditions as such but addresses certain relevant topics such as the profiles of the detainees, the legality control on detention, the right to family life etc.

 

Overall conditions

 

The most essential basic rights of the asylum seeker are guaranteed by the Royal Decree on Closed Centres, including its amendment by the Royal Decree of 7 October 2014 which has established a complaints mechanism. The managing director of the centre has broad competences to limit or even refuse the execution of most of these rights if he or she deems this necessary for the public order or safety, to prevent criminal acts or to protect the health, morality or the rights of others. A whole range of measures of internal order, disciplinary measures, measures of coercion and body search can be imposed by the managing director of the centre, and in some case by other staff members.[3] The Immigration Office organises training for the security personnel at the detention centres on the use of coercion, as provided for by law.[4] Within the first year of employment, each member should get a 3-day course on the theoretical aspects and techniques of coercion, followed by a refresher course with situational practices of 3 hours every third year afterwards. These are given by an internal Immigration Office instructor. Also, training sessions on dealing with aggression and on intercultural communication are organised.

The Royal Decree on Closed Centres characterises daily life in the closed centres as being collective during daytime. Detention facilities have separated rooms or wings for families and single women, including at the border. Women and men are separated in the sleeping and sanitary facilities and only assisted by staff members from the same sex.[5] For persons who appear not to be able to adapt to the collective regime, the managing director can decide to adopt other specific measures e.g. a specific “room regime”.

3 meals a day are provided, special diets can be delivered on medical prescription, pork meat is never to be served and alcohol is prohibited.[6] The asylum seekers get the opportunity to wash themselves on a daily basis and toiletries are at their disposal free of charge.[7] The asylum seeker can have clothes delivered at their own expense, but the centre is to provide free clothing in case he does not dispose of appropriate clothing.[8]

In practice, conditions vary from one centre to another.

 

Activities

 

In detention centres asylum seekers have access to open air spaces. In some centres they are allowed to get out in open air during day time whenever they want. In other centres this is strictly regulated. A minimum of two hours of exercise outside is provided.[9]

Assistance to religious services or non-confessional counselling is guaranteed in the detention centres and the provision of assistance by a minister of a non-officially recognised cult can be requested.[10]

The asylum seeker has an unlimited right to entertain correspondence during the day. Writing paper is provided in the centre, as is assistance with reading and writing by staff members.[11] When there are specific risk indications, this correspondence can be subjected to the control of the managing director of the centre, with the exception of letters directed to the lawyer or to certain public authorities and independent human rights and public monitoring instances.[12] Calls can be made at the asylum seekers’ own expenses during daytime to an unlimited extent.[13]

The social service of the centre has to organise sport, cultural and recreational activities.[14] Every centre has a library at the disposal of the inhabitants and newspapers and other publication can be purchased at their own expense.[15]

 

Health care and special needs

 

Access to health care is legally determined to “what the state of health demands” and every centre has its own medical service to provide for it with independent doctors.[16] The doctor attached to the centre can decide that a person has to be transferred to a specialised medical centre.[17] In practice, persons detained may have difficulties in accessing and obtaining sufficient medical care, as was made clear by the ECtHR in the case of Yoh-Ekale Mwanje v Belgium, in which the Court found that Belgium violated Article 3 ECHR for not providing the necessary medical care.[18] At the same time, the quality of the health care available depends a lot on the medical infrastructure and individual doctor in the centre; in some cases it might even be better than the one dispensed at some open reception centres.

When the medical doctor finds a person not suited for detention or forced removal because it could damage his or her mental or physical health, the managing director of the centre has to transfer these observations to the Director-General of the Immigration Office, who has to decide on the suspension of the detention or removal measure or ask for the opinion of the medical doctor of another centre, and in case of a dissenting opinion for that of a third one.[19] After every failed attempt of removal, the doctor has to examine the person concerned.[20] There have been no reports of the way this is applied in practice to date. No other procedures to identify other vulnerable individuals in detention is provided for by law.

Following Belgium's conviction by the ECtHR in its Paposhvili judgment,[21] a new 'special needs' procedure was introduced specifically for persons placed in detention prior to their return. However, the procedure is still not laid down in an official decision.[22]

This new informal procedure foresees that, for each newcomer to a detention centre, the centre's doctor fills out a medical certificate stating whether or not the person concerned suffers from an illness that could subject him/her to a risk of inhuman or degrading treatment in the context of return (which is contrary to Article 3 of the ECHR), or if additional medical examinations have to be carried out to determine this. If such a risk is identified by the doctor, a second examination will be conducted. The medical certificate is binding for the central service of the Immigration Office (MedCOI) which must ensure that the recommended treatments are available and accessible in the country of return. If this is the case, return will be carried out. If this is not the case, the person concerned can appeal to the 'special needs' programme or be released. In 2017, several information requests were addressed to the MedCOI service in this regard, which led to the release of three persons.[23]

In 2017, 156 applications were made under this new 'special needs' procedure. Out of them, five persons where admitted to psychiatric care before return; 49 persons were provided medical treatment and medicine; two cases required a follow-up during the return procedure, and 59 cases required the provision of re-integration support upon return. The total number of repatriations of persons with 'special needs' amounted to 76 in 2017.[24]

Finally, the Royal Decree of 9 April 2007 on OOC regulates the functioning of the OOC for unaccompanied children. Specific measures are adopted to protect and accompany the children. During their stay of maximum 15 days, their contacts are subject to special surveillance. During the first 7 days of their stay, they are not allowed to have any contact with the outside world other than with their lawyer and their guardian. The modalities of the visits, outside activities, telephone conversation and correspondence are strictly determined in the house rules. When a child is absent for more than 24 hours or where vulnerable children (i.e. aged below 13 years, children with psychological problems or victims of human trafficking) are absent without informing the staff, the police and the guardian or the Guardianship Service are alerted.[25]

The provision of medical assistance varies from centre to centre. It has been reported that in some centres, medical care is only for the purpose of repatriation and there is no budget for serious interventions. Transfer to the hospital for urgent medical treatment is rather exceptional. In some centres people complain about the fact that they only get painkillers and sleeping pills. A lack of adequate medical assistances for detainees with mental issues has also been reported.[26]

 


[1] Vluchtelingenwerk Vlaanderen et al., Closed centres for foreigners in Belgium, January 2017, available in French at: http://bit.ly/2k3PIQD and in Dutch at: http://bit.ly/2klkWRY.

[2] Caritas, Ciré, JRS Belgium, Platforme Mineurs en Exil, Point d’appui and Vluchtelingenwerk Vlaanderen, Vulnerabilité et Détention en Centres Fermés, October 2019, available in French at : https://bit.ly/3aaUHGs.

[3] Articles 85-111/4 Royal Decree on Closed Centres.

[4] Article 74/8 Aliens Act and Royal Decree on the Use of Coercion for Security Personnel.

[5] Article 83 Royal Decree on Closed Centres.

[6] Articles 79-80 Royal Decree on Closed Centres.

[7] Article 78 Royal Decree on Closed Centres.

[8] Article 76 Royal Decree on Closed Centres.

[9] Article 82 Royal Decree on Closed Centres.

[10] Articles 46-50 Royal Decree on Closed Centres.

[11]Articles 19, 22 and 23 Royal Decree on Closed Centres.

[12] Articles 20-21/2 Royal Decree on Closed Centres.

[13] Article 24 Royal Decree on Closed Centres.

[14] Articles 69-70 Royal Decree on Closed Centres.

[15] Articles 71-72 Royal Decree on Closed Centres.

[16]Article 53 Royal Decree on Closed Centres.

[17]Article 54-56 Royal Decree on Closed Centres.

[18]ECtHR, Yoh-Ekale Mwanje v. Belgium, Application No 10486/10, Judgment of 20 December 2011. Not the threatened deportation at an advanced stage of her HIV infection to Cameroon, her country of origin, without certainty that the appropriate medical treatment would be available was considered in itself to constitute a violation of Article 3 ECHR, but the delay in determining the appropriate treatment for the detainee at that advanced stage of her HIV infection.

[19] Article 61 Royal Decree on Closed Centres.

[20]Article 61/1 Royal Decree on Closed Centres.

[21] ECtHR, Paposhvili v. Belgium, Application no. 41738/10, 13 December 2016.

[22] Myriadoc, Terugkeer, detentie en verwijdering van vreemdelingen in België, December 2018, available in Dutch: https://bit.ly/2S3ooBM, 30.

[23] Ibid.

[24]Interim report by the commission for the evaluation of the policies concerning voluntary and forced returns of foreign nationals, 22 February 2019, available in Dutch at: https://bit.ly/2WCljN9, 84

[25] Articles 10 and 11 Royal Decree on OOC.

[26] Ciré, Vulnerabilité et detention en centre fermé, October 2019, available in French at : https://bit.ly/2J6ucGR.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation