December 10, 2014
This guest post was written by Rebecca Deruiter. PhD Researcher at the Institute for International Research on Criminal Policy (IRCP), Ghent University 
In its recent ruling in Vasilescu v. Belgium, the European Court of Human Rights convicted the Belgian state of inhuman and degrading treatment violating Article 3, for the deplorable detention conditions during the applicant’s confinement. Since enhancements to certain Belgian detention facilities can be labelled as ‘too little too late’, this judgment reaffirms, yet again, the enduring criticism by national and international observers. This not only negatively affects prisoners but has also wider implications for cooperation between EU Member States in criminal matters constructed on the principle of mutual recognition. Once more the Court ruled against Belgium, but at what point will the Belgian state finally listen?
The facts of the case
The case concerned Mr. Vasilescu, a Romanian national who was arrested in October 2011 and placed in pre-trial detention in the prisons of Antwerp and Merksplas. In the succeeding period, the applicant lived in different cells which he had to share with one or more smoking inmates (despite his requests for a non-smoking cell), often exceeding the number of available beds in that cell. As a result of the overcrowding, the applicant claimed he had to sleep on a mattress on the floor. Furthermore, Mr. Vasilescu spent a total of 60 days in a cell in Merksplas which lacked the availability of a toilet and running water. In both prisons, the applicant claimed to be deprived of proper medical care for back issues and to be subjected to discrimination related to the conditions of detention and early release. Conditional release was not granted to him and the applicant was eventually released on 22 October 2012 and sent back to Romania.
The Court’s reasoning
The Court concluded that Mr. Vasilescu’s physical conditions of detention in the prisons of Antwerp and Merksplas had subjected him to hardship exceeding the unavoidable level of suffering inherent in detention and amounted to inhuman and degrading treatment. Thereby, the Court stressed that the problem of prison overcrowding in Belgium, and the subsequent issues of unhygienic and outdated prison institutions, were structural in nature and did not concern Mr. Vasilescu’s personal situation alone. The Court chose not to rule on the issue concerning the lack of proper medical care, because not all domestic remedies had been exhausted (Article 35). Furthermore, it found no violation of discrimination on the basis of nationality when granting conditional release (Article 14).
In its judgment, the Court referred extensively to the realities described in the reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Punishment (CPT) and the Council of Europe Commissioner of Human rights, reflecting their visits to Belgian prison facilities. The explicit reference by the Court to CPT standards illustrates that these recommendations, initially labeled as ‘soft law’, are increasingly influential in the reasoning of judges. The Court refrenced the CPT report on its visit to the Antwerp prison in 2001, in which the chronic issue of overcrowding was addressed. Seven years since its first visit in 1994, the CPT had to witness for a second time prisoners sleeping on mattresses on the floor, because of the lack of space to install an additional bed and despite the CPT principle of one prisoner = one bed. Two decades later this basic condition is still not resolved. The prison of Merksplas was visited by the CPT in 1998 in which it observed mediocre detention conditions. Additionally, in both reports of 2007 and 2008-2010, the Central Penitentiary Surveillance Board (Centrale Toezichtsraad voor het gevangeniswezen) labelled the living conditions in the prison of Merksplas as ‘medieval’, due to the lack of toilet facilities and running water inside the prison cells. Again, years have passed but nothing has been done to improve these basic settings resulting in the fact that even in 2014, prisoners have to sleep on the ground and use buckets for their natural needs, resulting in a horrible odour in that cell block and disgraceful circumstances for prisoners and staff to work and live in.
The Court followed the reasoning of the CPT concerning the issue of overcrowding on which it concluded, on more than one occasion, that the adverse effects of overcrowding results in inhuman and degrading detention conditions. In such circumstances, all services and activities within a prison are affected, especially the minimum of hygiene and health conditions cannot be guaranteed. Consequently, the overall quality of life in the establishment is lowered and the level of overcrowding can be of such a nature that it breaches Article 3. In this case, the fact that the applicant had during several weeks less than 4 m² of personal space available (minimum CPT standard for a collective cell) and for fifteen days even less than 3 m² resulted in, following the Courts earlier jurisprudence (Ananyev and others v Russia, Torreggiani and others v Italy), a violation of Article 3. In this case, the situation was aggravated considering that the applicant had to sleep on a mattress on the floor, had no access to a toilet for sixty days, nor running water inside his cell, and was exposed to passive smoking.
Serious questions should be raised when a state cannot solve the issue of prison overcrowding for over more than two decades, affecting prisoners dignity and self-esteem, despite various Court rulings. When a state chooses to deprive somebody of his or her liberty, it also entails an obligation in ensuring humane treatment of that person. It is especially worrying when a state does not act upon this responsibility when taking into account that (most of) these prisoners, sooner or later, will re-enter society. Thereby, the risk is present that they do this in a poor or worse state of physical and mental health than when they entered. Furthermore, the European Prison Rules are very straightforward in this matter: prison conditions that infringe prisoners’ human rights are not justified by lack of resources (EPR 4). Throwing additional money for the construction of new prisons will not offer a solution. Instead, current laws, policies and practices in pre-trial and post-trial detention facilities need to be reviewed and the use of non-custodial and alternative sentences should be broadened.
The Court’s jurisprudence related to prison conditions illustrates that detrimental prison conditions often constitute additional punishment, trespassing the unavoidable level of suffering inherent to detention (Kudła v. Poland). As a result, the basic principle by which the deprivation of liberty is, in itself, the punishment is still not a reality. The recurrent problem of overcrowding and medieval living conditions in certain penitentiary institutions violating Article 3 is still a reality in today’s Europe (e.g. Torreggiani and Others v. Italy). This does not only have a detrimental impact on the prisoners (and staff) in these institutions, but also on the wider EU cooperation in criminal matters. In recent decades, the EU has become more active in the field of criminal law with the goal of establishing an area of Freedom, Security and Justice (AFSJ) grounded on the principle of mutual recognition. The prohibition of torture and inhuman or degrading treatment or punishment encompasses the obligation not to send a person to a country where there are substantial grounds for believing that he/she would run a real risk of being subjected to torture or ill-treatment and potentially facing charges before the Court. Taking this in mind, the smooth functioning of the adopted EU Framework Decisions on the basis of mutual recognition of judicial decisions (e.g. the European Arrest Warrant and the transfer of prisoners), aiming to improve social rehabilitation, are seriously jeopardized. As such, these deplorable living conditions can serve as an additional refusal ground and an unforeseen obstacle for the cooperation among EU Member States in criminal matters.
It is clear that detrimental prison conditions have a wider impact then just on the person incarcerated, but will the Belgian state act upon the call of the judges to adopt “general measures guaranteeing prisoners adequate conditions of detention”? The current Belgian government programme stipulates the aim to replace minor prison sentences with alternative sanctions and to tackle the issue of prison overcrowding not only by increasing capacity but also in combination with other measures. What these other measures are precisely, is not defined. On the other hand, in the policy statement of the current Belgian Minister of Justice, the construction of more detention infrastructure is stated as a necessity. Another fundamental issue is that Belgium is positioned in the very select group of countries still lacking a centralized, independent, permanent and professional complaint mechanism for prisoners which makes their legal position very fragile. The Central Penitentiary Surveillance Board has resigned years ago. Consequently, the availability to file a complaint for prisoners lays with the goodwill of the volunteers in the different surveillance commissions in each prison.
Twenty years have passed since the first CPT visit to the Antwerp prison. After such an extensive period of time, it is very hard to formulate an excuse that is reasonable and acceptable in a modern society, justifying the ongoing deplorable state of certain detention facilities. Despite the heavy burden of proof for detainees to install a procedure before the Strasbourg Court, larger number of applications deriving from the same root cause and perhaps a pilot-judgment procedure can wake up the Belgian state more than an individual ruling?
 Rebecca Deruiter’s research interests include penology, EU criminal law & policy, cosmopolitanism.
 CPT Standards, CPT/Inf/E (2002) 1 – Rev. 2013, p. 21.
 National judicial decisions must move freely with a minimum of formality and a maximum of automaticity through mutual trust and be respected by other national jurisdictions in the EU.
 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA).
 Council Framework Decisions of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (2008/909/JHA).