Belgian release policies, rationales and practices
| DOI | 10.1177/2066220319895776 |
| Date | 01 December 2019 |
| Author | Kristel Beyens |
| Published date | 01 December 2019 |
| Subject Matter | Original Articles |
https://doi.org/10.1177/2066220319895776
European Journal of Probation
2019, Vol. 11(3) 169 –187
© The Author(s) 2019
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DOI: 10.1177/2066220319895776
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Belgian release policies,
rationales and practices
Kristel Beyens
Vrije Universiteit Brussel, Belgium
Abstract
Belgium has a two-track policy towards prison release: a quasiautomatic administrative
release system for those with a prison sentence of up to three years, and a discretionary
system operated by multidisciplinary Sentence Implementation Courts for persons with
a prison term of more than three years. This article describes, discusses and compares
both release systems, with a particular focus on their rationales and consequences and
provides updated figures on the use of the different forms of release in Belgium. The
principle of relative autonomy will be described as an important legitimation strategy of
conditional release. The article explains how the sentence implementation rationale of
reintegration is put forward as an important aim of sentence implementation in the law
and how it is pursued in practice. The consequences of the increasing use of the ‘gradual
system’ of release on the detention trajectory of long-term prisoners will be illustrated.
Keywords
Belgium, maxing out, release, two-track system
Introduction
With the introduction of the so-called Act Lejeune in 1888, Belgium became one of the
first countries in Europe to introduce conditional release (voorwaardelijke invrijheidstel-
ling or liberation conditionelle), in order to allow some individualisation during the exe-
cution of punishment. An administrative discretionary system was installed and for 100
years parole was granted following an administrative but non-transparent procedure,
where the Minister, or the members of the cabinet, could reject or accept requests for
release, without having to provide a justification or judicial guarantees. This gave minis-
ters a lot of power within the penal sphere and raised multiple criticisms, not least from
prisoners. This decision-making power also came at a political cost, particularly in
Corresponding author:
Kristel Beyens, Department of Criminology, Vrije Universiteit Brussel, Research Group Crime & Society,
Pleinlaan 2, Brussels, 1050, Belgium.
Email: Kristel.Beyens@vub.be
895776EJP0010.1177/2066220319895776European Journal of ProbationBeyens
2019
Original Article
170 European Journal of Probation 11(3)
instances where a parolee committed further high-profile offences. The infamous Dutroux
case in 1996, which involved the abduction, rape and murder of several young girls while
Dutroux was on parole, and whose conditional release was decided by the then Minister
of Justice Wathelet, was therefore a catalyst to hand over the decision-making responsibil-
ity for conditional release to multidisciplinary ‘Parole Commissions’ in 1998 and finally
to independent multi-disciplinary Sentence Implementation Courts in 2006.
The Act of 2006 on the External Legal Position of Convicted Prisoners and the Rights
of the Victims in the Framework of Modalities of the Implementation of Sentences (hereaf-
ter the Act of 2006 on the External Legal Position) transferred the decision-making author-
ity from the executive to the judiciary in order to reinforce procedural and substantive
statutory rights of prisoners (e.g. due process, fairness, legitimacy) and to address the criti-
cism regarding the lack of judicial guarantees in the release procedure in Belgium. The
multi-disciplinary composition of the Sentence Implementation Court was regarded as a
necessary condition to improve the quality of the decision-making regarding release, which
required a combination of legal reasoning and expertise in social reintegration and the
effects of the deprivation of liberty (Scheirs et al., 2015; Snacken et al., 2010). Sentence
Implementation Courts are presided over by a professional judge with a minimum of five
years’ judicial experience who has been trained for appointment to the Sentence
Implementation Court. The two assessors are not professional judges, nor are they equiva-
lent to lay-magistrates, as they are full-time professionals actively serving as a member of
the court with a university degree (e.g. criminology, psychology, sociology, law) and a
minimal professional expertise of five years in matters of social reintegration or prison.
Current assessors have professional expertise as prison governors, as members of the psy-
chosocial service in prison or as justice-assistants (probation officer) (Scheirs, 2016: 86).
As all the provisions on release were described in numerous and non-publicly avail-
able Ministerial Letters, an important goal of the Act of 2006 on the External Legal
Position was to streamline the procedure for all convicted prisoners and to bring all the
scattered provisions together in one Act. However, since 1 February 2007 and still at the
time of writing (Autumn 2019), the Sentence Implementation Courts make decisions
regarding the detention trajectory of persons sentenced to more than three years impris-
onment. The transfer of the decision-making for persons with a shorter prison sentence
has been postponed several times and thus still remains an administrative responsibility,
leaving the authority of decision-making with the Prison Administration (in the majority
of cases the prison governor). However, on 25 April 2019, a Bill has been accepted by
the Chamber of Representatives that announces the entry into force of the part of the Act
for this group of prisoners by 1 October 2020 the latest. This division reflects an impor-
tant characteristic of the Belgian release system, namely, its two-track (or bifurcated)
system, with different procedures for persons sentenced to a maximum prison term total-
ling three years (so-called ‘short-term prisoners’) than for those with prison sentences of
more than three years (so-called ‘long-term prisoners’). In practice, this means that the
majority of convicted prisoners are released under a quasi-automatic and fast administra-
tive procedure, while in contrast a smaller group of long-term prisoners are made subject
to a very complex release procedure with several checks and balances.
The aim of this article is to briefly describe1, discuss and compare both release systems2,
with a particular focus on their rationales and consequences. I will also provide updated
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